Can police keep their body-worn cameras on inside a hospital emergency room in South Carolina, or does HIPAA require them off?
Official title
Opinion addressing the use of body-worn cameras in medical facilities.
Requester
Requested by Derk Van Raalte, Esquire, Attorney for the City of North Charleston.
Plain-English summary
The City of North Charleston's attorney asked how police should use body-worn cameras (BWCs) inside hospital treatment areas, like emergency rooms and trauma bays, where patients, staff, and bystanders are present and privacy is limited. A local hospital had told the police department to turn cameras off in those areas, citing HIPAA and patient privacy.
The Attorney General's office made two points and then drew a line. First, HIPAA does not apply to police officers. The HIPAA Privacy Rule binds "covered entities," meaning health care providers, insurers, and clearinghouses (45 C.F.R. §§ 164.500-164.534), not law enforcement. So the office agreed with the city that HIPAA does not prohibit officers from activating their cameras inside a medical facility.
Second, state law (Section 23-1-240) puts BWC rules in the hands of the Law Enforcement Training Council and the individual agencies. The Council's guidelines require an officer to activate the camera when responding to a call or in a law-enforcement encounter with the public, with no location-based restrictions, though officers are told to use discretion around rape and sexual-assault victims and people who are nude or exposed.
The office then declined the heart of the question. It noted that privacy interests under the Fourth Amendment and the South Carolina Constitution must still be respected, but it found no South Carolina case directly addressing BWC use in a medical facility. How to balance patient privacy against the duty to record is a matter of policy, which the office said is beyond the scope of an AG opinion, and which the Legislature assigned to the agencies and the Law Enforcement Training Council. So the office deferred to them.
What this means for you
Police departments and law enforcement agencies: Under this opinion, HIPAA does not bar officers from running body cameras inside a hospital, and the Council's guidelines contain no location-based ban on recording. The opinion treats how to handle privacy in hospital treatment areas as a policy the agency itself must develop, under the Law Enforcement Training Council's guidance and approval, rather than a question the AG resolved.
Hospitals and medical facility administrators: The opinion's view is that HIPAA does not give a hospital a basis to require police to deactivate their own body cameras, because HIPAA does not cover law enforcement. It does not, however, decide whether any particular recording would invade privacy.
Patients and members of the public: The opinion recognizes that constitutional privacy protections apply (S.C. Const. art. I, § 10; the Fourth Amendment), but it expressly did not decide whether recording in a medical facility violates anyone's privacy rights, leaving that to agency policy and, ultimately, the courts.
Common questions
Does HIPAA stop police from recording in a hospital?
According to this opinion, no. HIPAA's Privacy Rule applies to health care providers, insurers, and clearinghouses, not to law enforcement officers, so the office concluded HIPAA does not prohibit officers from activating body cameras in a medical facility.
Do the state guidelines ban cameras in certain places like the ER?
No. The opinion states the Law Enforcement Training Council's guidelines require activation during calls and law-enforcement encounters with the public and contain no restrictions tied to specific locations, although officers are directed to use discretion around sexual-assault victims and people who are nude or exposed.
Did the AG decide whether recording in a trauma bay is legal?
No. The opinion says that balancing privacy against the duty to record is a policy question outside the scope of an AG opinion, and that the Legislature placed that responsibility on the agencies and the Law Enforcement Training Council. It found no South Carolina case directly on point.
Background and statutory framework
Section 23-1-240 of the South Carolina Code directs state and local law enforcement agencies, under the Law Enforcement Training Council, to implement body-worn cameras using Council guidelines (S.C. Code Ann. § 23-1-240(B), (C)), and requires agencies to develop their own policies, which the Council reviews and approves (S.C. Code Ann. § 23-1-240(D)). The Council's guidelines require activation when an officer arrives at a call or initiates a law-enforcement or investigative encounter with a member of the public, subject to certain restrictions and to officer discretion in sensitive situations.
On privacy, the opinion points to the Fourth Amendment and to Article I, § 10 of the South Carolina Constitution, which protects against unreasonable searches, seizures, and invasions of privacy. It cites South Carolina cases recognizing privacy in medical information, including State v. Blackwell, 420 S.C. 127, 801 S.E.2d 713 (2017), Singleton v. State, 313 S.C. 75, 437 S.E.2d 53 (1993), and Planned Parenthood S. Atl. v. State, 438 S.C. 188, 882 S.E.2d 770 (2023). Finding no case directly addressing BWCs in a medical facility, and treating the balance as a policy matter, the office relied on its long-standing position that policy questions are beyond the scope of an AG opinion (citing a 2021 opinion) and deferred to the agencies and the Council.
Citations
Statutes and authorities: S.C. Code Ann. § 23-1-240 (including subsections (B), (C), (D)); 45 C.F.R. §§ 164.500-164.534 (HIPAA Privacy Rule); S.C. Const. art. I, § 10; U.S. Const. amend. IV.
Cases: State v. Blackwell, 420 S.C. 127, 801 S.E.2d 713 (2017); Singleton v. State, 313 S.C. 75, 437 S.E.2d 53 (1993); Planned Parenthood S. Atl. v. State, 438 S.C. 188, 882 S.E.2d 770 (2023).
Source
- Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-the-use-of-body-worn-cameras-in-medical-facilities/
- Original PDF: https://www.scag.gov/media/isggp1tl/03403559.pdf
Original opinion text
Alan Wilson
attorney General
September 29, 2023
Derk Van Raalte, Esq.
Attorney
City of North Charleston
Post Office Box 190016
North Charleston, South Carolina 29419-906
Dear Mr. Van Raalte:
We received your letter requesting advice from this Office as to “the proper use of body worn
cameras (BWC) when police are in the presence of victims, suspects, witnesses as well as private
citizens and others, that are completely unrelated to any police investigation, in open treatment
areas of a hospital, i.e. emergency room, trauma bay also known as a resuscitation bay, where
limited privacy exists and numerous patients, staff and others are present.”
Law/Analysis
Section 23-1-240 of the South Carolina Code (Supp. 2022) addresses the use of body-worn
cameras. According to this provision, “[s]tate and local law enforcement agencies, under the
direction of the Law Enforcement Training Council, shall implement the use of body-worn
cameras pursuant to guidelines established by the Law Enforcement Training Council.” S.C. Code
Ann. § 23-1 -240(B). The Legislature charged the Law Enforcement Training Council with
establishing guidelines
specifying which law enforcement officers must wear body-worn cameras,
when body-worn cameras must be worn and activated, restrictions on the use
of body-worn cameras, the process to obtain consent of victims and witnesses
before using body-worn cameras during an interview, the retention and release
of data recorded by body-worn cameras, and access to the data recorded by
body-worn cameras pursuant to subsection (G). The Law Enforcement Training
Council shall provide the guidelines to state and local law enforcement
agencies.
S.C. Code Ann. § 23-1 -240(C). Section 23-1-240 also requires state and local law enforcement
agencies to develop their own policies and procedures for the use of body-worn cameras pursuant
to the Law Enforcement Training Council’s guidelines, who then reviews and approves the
agencies’ policies. S.C. Code Ann. § 23-1 -240(D).
R u h ; i.i-.ivr c. Dennis Building
«
post Office Box i 1 549
’ C01.VMBJA.se 292 11-1549
Tele.’Uuni: ;:.j?.-734-3970 . , ACN.n.
E Ui.V’AWin
Derk Van Raalte, Esq.
Page 2
September 29, 2023
We obtained a copy of the Law Enforcement Training Council guidelines, which state body-worn
cameras (“BWC”) must be worn and activated “[w]hen a uniformed officer arrives at a call for
service or initiates any other law enforcement or investigative encounter between an officer and a
These guidelines also include restrictions on the use of B WCs.
member of the public . . .
BWC shall be used only in conjunction with official law enforcement duties.
The BWC shall not generally be used to record communications with other
police personnel without the permission of the chief executive officer (CEO),
encounters with undercover officers or confidential informants, when on break
or otherwise engaged in personal activities, unless for a direct law enforcement
purpose such as a crime in progress or the recording of the location is material
to a criminal investigation. Furthermore, officers should use discretion where
there is a victim of rape or sexual assault. Additionally, to respect the dignity
of others, unless articulable exigent circumstances exist, officers will try to
avoid recording persons who are nude or when sensitive human areas are
exposed.
According to the guidelines, an officer is required to activate his or her BWC when he or she
arrives at a call or is performing other law enforcement or investigative functions involving the
officers and a member of the public. There are no restrictions in the guidelines as to specific
locations, but officers may use discretion when the situation involves a victim or rape or sexual
assault or persons who are nude or exposed in some way. The guidelines do not specifically
address the use of BWCs in medical facilities or limit their use in these types of facilities in any
way.
In your letter, you explain that a local hospital directed the North Charleston Police Department
(“NCPD”) to turn off their BWCs “when entering facility treatment areas where limited privacy
can be provided, i.e. emergency department, trauma bays/resuscitation bays, based on its concerns
for compliance with the Health Insurance Portability and Accountability Act (HIPPA) and its
desire to protect the privacy interests of its patients.” The HIPAA Privacy Rule applies to “covered
entities,” which includes health care providers, health insurers, and health care clearinghouses. 45
C.F.R. §§ 164.500-164.534. It does not cover law enforcement officers. Accordingly, we agree
with your assessment that law enforcement officers would not be prohibited by HIPAA from
activating their BWCs in a medical facility.
Nonetheless, general privacy concerns should be taken into consideration to avoid a violation of
the Fourth Amendment of the United States Constitution as well as the South Carolina
Constitution. The South Carolina Constitution protects
[t]he right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures and unreasonable invasions of
privacy shall not be violated, and no warrants shall issue but upon probable
Derk Van Raalte, Esq.
Page 3
September 29, 2023
cause, supported by oath or affirmation, and particularly describing the place to
be searched, the person or thing to be seized, and the information to be obtained.
S.C. Const, art. I, § 10 (year) (emphasis added).
Our courts recognize this right regarding medical information recently stating:
We have found that the right to privacy may be implicated in many ways, from
requiring a witness to divulge medical information during a criminal trial to
forcing a convicted felon to take medication so that he may be competent
enough to be executed. See State v. Blackwell, 420 S.C. 127, 151, 801 S.E.2d
713, 725 (2017) (noting the novel issue before the Court was “whether a
criminal defendant’s constitutional right to confront a witness trumps a
witness’s state constitutional right to privacy and statutory privilege to maintain
confidential mental health records”) (footnotes omitted) and Singleton v. State,
313 S.C. 75, 90, 437 S.E.2d 53, 62 (1993) (finding compulsory medication
implicated a prisoner’s state constitutional right to privacy).
Planned Parenthood S. Atl. v. State, 438 S.C. 188, 205, 882 S.E.2d 770, 779 (2023), reh’g denied
(Feb. 8, 2023). However, we did not find a case directly addressing a situation in which use of a
BWC in a medical facility constituted a violation of a person’s right to privacy under South
Carolina law. Therefore, we believe the NCPD must balance the privacy interests of individuals
located in the public areas of a medical facility with its duty to record when arriving at a call or
performing other law enforcement or investigative functions. This determination is a matter of
policy. As we noted in prior opinions of this Office, questions of policy are beyond the scope of
an opinion of this Office. Op. Att’y Gen., 2021 WL 1832302 (S.C.A.G. Mar. 15, 2021). Moreover,
the Legislature specifically placed responsibility for developing such policies on state and local
law enforcement agencies with direction from the Law Enforcement Training Council. Therefore,
we must defer to the individual agency and the Law Enforcement Training Council to develop
such policies.
Conclusion
This Office cannot make decisions regarding policy, as such are beyond the scope of our opinion.
Additionally, the statutes governing the use of BWCs specifically place authority to develop policy
in state and local law enforcement officials under the guidance and approval of the Law
Enforcement Training Council. The Law Enforcement Training Council set forth guidelines
indicating BWCs should be activated whenever an officer is responding to a call or engaged in any
other law enforcement or investigative activity involving a member of the public without
restrictions as to location. Additionally, we agree with your assessment that the privacy provisions
under HIPAA are not applicable to law enforcement agencies and therefore, would not prohibit
them from using BWCs inside medical facilities. However, the NCPD should consider privacy
concerns when drafting policies for the use of BWCs so as not unreasonably invade the privacy of
Derk Van Raalte, Esq.
Page 4
September 29, 2023
the victims and witness who arc interacting directly with law enforcement as well as those who
may be present while the BWC is in use.
Sincerely,
Cydney Milling^
Assistant Attorney General
REVIEWED AND APPROVED BY:
Robert D. Cook*7
Solicitor General