When can Texas police release or withhold body camera footage to the public or city officials?

Plain-English summary

A state senator asked the AG four questions about when a city police department must, may, or may not hand over body-worn camera footage, depending on who is asking. The governing statute is Occupations Code chapter 1701, subchapter N, which sets the rules for body-worn cameras and their recordings, layered on top of the Public Information Act. The AG grouped the questions by requester: members of the public, members of the city's governing body, and civilian city employees.

For the public, the AG explained that footage that is or could be used as evidence in a criminal prosecution is subject to the Public Information Act, so a proper request triggers a duty to release unless an exception applies. The relevant exception, Government Code section 552.108(a)(1), lets an agency withhold information whose release would interfere with the detection, investigation, or prosecution of crime. But that exception is discretionary and not self-executing: the agency generally has to ask the Attorney General for a ruling and explain how release would interfere, within the deadlines the statute sets. The agency may also choose to release the video after redacting confidential information. Separately, the AG noted that Family Code section 58.008 generally bars releasing to the public footage that could be juvenile-court evidence or that relates to a child in a way that restricts access.

For a member of the city's governing body, or a civilian employee in an oversight role like a city manager, the AG reached a different result. A request made in an official capacity is not a request by the "public" under the Act, so the public-interference exception does not apply. Because a municipal police department is established by and accountable to the city's governing body, and a long line of AG opinions recognizes a governing-body member's inherent right of access to the body's records when acting officially, the AG found no law letting the department withhold body-camera footage from a council member acting in an official capacity. For civilian employees, access depends on the authority the governing body grants them and the city's internal policies. The child-records bar in section 58.008 likewise does not block a governing-body member's official-capacity access, because that member is not the public.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting senator and the Legislature (as the opinion described them): The opinion mapped the existing statutory framework: the Public Information Act and its section 552.108 law-enforcement exception govern public requests for body-camera footage, the exception is discretionary and requires an Attorney General ruling, and child-related footage is generally off-limits to the public under Family Code section 58.008.

Municipal police agencies (as the opinion described them): The opinion told agencies that they cannot simply withhold criminal-evidence footage from the public on their own; to invoke section 552.108(a)(1) they must seek an Attorney General decision and explain the interference, within the chapter 1701 deadlines. They may release footage to the public after redacting confidential material. They may not withhold footage from a governing-body member acting in an official capacity.

City council members and oversight employees (as the opinion described them): The opinion treated an official-capacity request by a governing-body member as outside the "public" category, so the law-enforcement and child-records bars do not block that member's access. For civilian employees such as a city manager, access turns on the authority the governing body grants and the city's adopted body-camera policies.

Common questions

Can Texas police refuse to give the public body camera video of a crime?
Only through the Public Information Act process. The footage is subject to the Act, and an agency may withhold it under the discretionary section 552.108(a)(1) exception if release would interfere with detecting, investigating, or prosecuting crime, but it generally must ask the Attorney General for a ruling first.

Does an agency have to ask the Attorney General before withholding?
Generally yes. The AG explained that an agency seeking to withhold under section 552.108(a)(1) must request a decision from the Attorney General and submit written comments explaining how and why release would interfere, within the deadlines set by chapter 1701.

What about footage involving children or juvenile cases?
With narrow exceptions, Family Code section 58.008 prohibits releasing to the public a body-camera recording that could be evidence in a juvenile court proceeding or that relates to a child in a manner restricting access.

Can a city council member demand to see the footage?
Yes, when acting in an official capacity. The AG concluded a governing-body member's official-capacity request is not a "public" request, and found no law letting the department withhold the footage from that member. Civilian-employee access depends on the authority and policies the city sets.

Background and statutory framework

Occupations Code chapter 1701, subchapter N governs body-worn cameras (Tex. Occ. Code §§ 1701.651-.663), defining the device (§ 1701.651(1)) and setting release rules (§ 1701.661). Footage that is or could be criminal evidence is subject to the Public Information Act (§ 1701.661(d)), even though other body-camera information is not subject to the Act's general availability rule (§ 1701.661(c); Tex. Gov't Code § 552.021). A public requester must include specified information (§ 1701.661(a)), and an agency may assert any Chapter 552 exception (§ 1701.661(e)(2)). The law-enforcement exception (Tex. Gov't Code § 552.108(a)(1)) is discretionary and generally requires the agency to seek an Attorney General decision (§ 552.301(a)) with written comments explaining the exception (§ 552.301(e)(1)(A)), within the chapter 1701 deadlines (§§ 1701.662(a), 1701.662(c)). An agency may release after redacting confidential information (§ 1701.661(e)(3)) and may voluntarily disclose unless prohibited (§ 552.007(a)). Portions made in a private space or involving fine-only misdemeanors without arrest require the subject's authorization (§ 1701.661(f)).

For child-related footage, the Act excepts information confidential by law (§ 552.101), and Family Code section 58.008(b) generally bars public release of law-enforcement records concerning a child, subject to inspection rights for certain parties (§ 58.008(d)). For governing-body members, a municipal police department is established by and accountable to the city's governing body (Tex. Loc. Gov't Code §§ 341.001(a), 341.003), and AG opinions consistently recognize a governing-body member's inherent right of access to the body's records when acting officially (Tex. Att'y Gen. Op. Nos. KP-0021 (2015), GA-0138 (2004), JC-0283 (2000), JC-0120 (1999), JM-119 (1983)). Civilian-employee access depends on the authority granted and the agency's body-camera policy (§ 1701.655(a), (b)(6)).

Citations

Prior AG opinions:

• Tex. Att'y Gen. Op. No. KP-0021 (2015)
• Tex. Att'y Gen. Op. No. GA-0138 (2004)
• Tex. Att'y Gen. Op. No. JC-0283 (2000)
• Tex. Att'y Gen. Op. No. JC-0120 (1999)
• Tex. Att'y Gen. Op. No. JM-119 (1983)

Statutes:

• Tex. Occ. Code §§ 1701.651-.663, 1701.651(1), 1701.655(a), (b)(6), 1701.661, 1701.661(a), (c), (d), (e)(2), (e)(3), (f), 1701.662(a), (c)
• Tex. Gov't Code §§ 552.007(a), 552.021, 552.101, 552.108, 552.108(a)(1), 552.301(a), 552.301(e)(1)(A), 552.306
• Tex. Fam. Code § 58.008(b), (d)
• Tex. Loc. Gov't Code §§ 341.001(a), 341.003

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0186
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0186.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 19, 2018

The Honorable Eddie Lucio, Jr. Opinion No. KP-0186
Chair, Committee on Intergovernmental Relations
Texas State Senate Re: Whether and when a municipal law
Post Office Box 12068 enforcement agency is authorized or required to
Austin, Texas 78711-2068 release audio or video recordings from a body
worn camera to members of the public,
members of the governing body of the
municipality, and civilian employees of the
municipality (RQ-0180-KP)

Dear Senator Lucio:

    You ask four questions regarding a municipal law enforcement agency's duty to release body worn camera recordings made by a member of the agency. [1] Chapter 1701, subchapter N of the Occupations Code addresses law enforcement agencies' use of body worn cameras. See TEX. OCC. CODE §§ 1701.651-.663. It defines "body worn camera" as "a recording device that is: (A) capable of recording, or transmitting to be recorded remotely, video or audio; and (B) worn on the person of a peace officer, which includes being attached to the officer's clothing or worn as glasses." Id. § 1701.651(1). That chapter also includes specific rules regarding the release to the public of information recorded by a body worn camera. See id. § 1701.661.

   Related to these provisions, you ask whether a law enforcement agency may release these recordings in specific circumstances. Your first and third questions ask about release of recordings when requested by members of the public, so we address those questions together. You first ask:

             Is a municipal law enforcement agency prohibited from complying, authorized to comply, or required to comply with a request by a member of the public to view a recording from a body worn camera if the head of the law enforcement agency determines that the recording could be used as evidence in a criminal prosecution and that allowing the person to view the recording would interfere with the detection, investigation, or prosecution of a crime?

Request Letter at 1. [2] Section 1701.661 provides that information recorded by a body worn camera and held by a law enforcement agency "that is or could be used as evidence in a criminal prosecution is subject to the requirements" of the Public Information Act ("the Act"). TEX. OCC. CODE § 1701.661(d). [3] Thus, upon receiving a proper request, a law enforcement agency must release the recordings to the public unless the recordings are excepted from disclosure under the Act or contain information that is confidential or otherwise required by law to be withheld. [4]

    Section 552.108(a)(1) of the Government Code excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime ... if ... release of the information would interfere with the detection, investigation, or prosecution of crime." TEX. GOV'T CODE § 552.108(a)(1). [5] A law enforcement agency seeking to withhold information under the exception authorized in subsection 552.108(a)(1) generally "must ask for a decision from the attorney general about whether the information is within that exception." Id. § 552.301(a). [6] The request for a ruling from the Attorney General must include "written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld." Id. § 552.301(e)(1)(A). Thus, a law enforcement agency seeking to withhold a body worn camera recording under subsection 552.108(a)(1) must explain how and why the release of the requested information would interfere with the detection, investigation, or prosecution of a crime. Upon receipt of authorization from the Attorney General, a law enforcement agency may withhold the recording of a body worn camera if releasing it to a member of the public would interfere with the detection, investigation, or prosecution of a crime. See id. §§ 552.108, .301(a), .306.

   That said, the exception to disclosure under section 552.108 is discretionary. A law enforcement agency may release information recorded by a body worn camera to a member of the public "after the agency redacts any information made confidential under Chapter 552, Government Code, or other law." TEX. OCC. CODE § 1701.661(e)(3). The Act "does not prohibit a governmental body or its officer for public information from voluntarily making part or all of its information available to the public, unless the disclosure is expressly prohibited by law or the information is confidential under law." TEX. GOV'T CODE § 552.007(a).

     Relatedly, your third question specifically regards a recording that "could be used as evidence in a juvenile court proceeding or depicts or otherwise relates to a child in a manner that would restrict access to the recording." Request Letter at 2. The Act excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." TEX. GOV'T CODE § 552.101. Section 58.008(b) of the Family Code provides that, with limited exceptions, "law enforcement records concerning a child and information concerning a child that are stored by electronic means or otherwise and from which a record could be generated may not be disclosed to the public." TEX. FAM. CODE § 58.008(b). [7] Thus, a law enforcement agency generally may not release to a member of the public a body worn camera recording that could be used as evidence in a juvenile court proceeding or depicts or otherwise relates to a child in a manner that would restrict access to the recording.

    Your second and fourth questions ask about requests by a member of the governing body of the municipality or by a civilian employee of the municipality, and we address those questions together. You specifically ask:

              Is a municipal law enforcement agency prohibited from complying, authorized to comply, or required to comply with a request by a member of the governing body of the municipality or by a civilian employee of the municipality whose duties include supervision or oversight of the law enforcement agency (such as a city manager) to view a recording from a body worn camera if the head of the law enforcement agency determines that the recording could be used as evidence in a criminal prosecution and that allowing the person to view the recording would interfere with the detection, investigation, or prosecution of crime?

Request Letter at 1. Assuming a request is made in the requestor's official capacity, a request by a member of the governing body of the municipality or a civilian employee in an oversight role is not a request by the "public" under the Act. See Tex. Att'y Gen. Op. No. JC-0283 (2000) at 3. Thus, the exception in the Act allowing the agency to withhold the recordings from the public due to interference with the detection, investigation, or prosecution of a crime is not applicable.

  A municipal law enforcement agency is established by and accountable to the governing body of the municipality. See TEX. LOC. GOV'T CODE §§ 341.003 ("A home-rule municipality may provide for a police department."); 341.001(a) ("The governing body of a Type A general-law municipality may establish and regulate a municipal police force."). While we have found no Texas court decisions addressing this issue in the context of municipal law enforcement agency records, "Texas attorneys general have consistently concluded that a member of a governing body has an inherent right of access to the records of that body when requested in the member's official capacity and for the member's performance of official duties." Tex. Att'y Gen. Op. No. KP-0021 (2015) at 3; see also Tex. Att'y Gen. Op. Nos. GA-0138 (2004) at 3, JC-0283 (2000) at 3, JC-0120 (1999) at 3, JM-119 (1983) at 3. We find no law authorizing a municipal law enforcement agency to withhold from a member of the municipal governing body a recording from a body worn camera when the request is made in the member's official capacity. Whether civilian employees may access the recordings will depend on the authority given those employees by the municipal governing body and the internal policies and procedures of the municipality. See Tex. Att'y Gen. Op. No. JC-0283 (2000) at 4 (authorizing the release of confidential information to the city manager upon consent of the governing body of the municipality); TEX. OCC. CODE § 1701.655(a), (b)(6) (requiring a law enforcement agency that operates a body worn camera program to adopt a policy for the use of body worn cameras, including procedures for supervisory or internal review).

    Finally, you also ask about a member of the governing body's access to a recording that "could be used as evidence in a juvenile court proceeding or depicts or otherwise relates to a child in a manner that would restrict access to the recording." Request Letter at 2. Family Code subsection 58.008(b) generally prohibits the release of law enforcement records concerning a child "to the public." TEX. FAM. CODE § 58.008(b). As discussed above, a request by a member of the governing body of the municipality or a civilian employee in an oversight role is not a request by the public. Therefore, subsection 58.008(b) does not restrict a member of the governing body's access to recordings involving a child.

                                  SUMMARY

                 Pursuant to section 552.108(a)(1) of the Government Code, upon receiving authorization from the Attorney General, a law enforcement agency may withhold the recording of a body worn camera if releasing it to a member of the public would interfere with the detection, investigation, or prosecution of a crime. The exception to disclosure under section 552.108 is discretionary, and a law enforcement agency may release information recorded by a body worn camera to a member of the public after the agency redacts any information made confidential by law.

                  With narrow exceptions, section 58.008 of the Family Code prohibits a law enforcement agency from releasing to a member of the public a body worn camera recording that could be used as evidence in a juvenile court proceeding or depicts or otherwise relates to a child in a manner that would restrict access to the recording.

                  A municipal law enforcement agency may not withhold from a member of the municipal governing body a recording from a body worn camera when the request is made in the member's official capacity. Whether civilian employees may access the recordings will depend on the authority given those employees by the municipal governing body and the internal policies and procedures of the municipality.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Letter from Honorable Eddie Lucio, Jr., Chair, Senate Comm. on Intergov'tl. Relations, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Sept. 14, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] In posing this question, you ask us to "assume that the person requesting to view the recording complies with the requirements of Section 1701.661(a), Occupations Code." Id. at 1. That subsection requires a member of the public to include specific information when submitting a written request for information recorded by a body worn camera. TEX. OCC. CODE § 1701.661(a).

[3] Subsection 1701.661(c) provides that "[e]xcept as provided by Subsection (d), information recorded by a body worn camera and held by a law enforcement agency under this subchapter is not subject to the requirements of Section 552.021, Government Code." Id. § 1701.661(c); see also TEX. GOV'T CODE § 552.021 ("Public information is available to the public at a minimum during the normal business hours of the governmental body.").

[4] Subsection 1701.661(f) prohibits a law enforcement agency from releasing a portion of a recording "made in a private space, or of a recording involving the investigation of conduct that constitutes a misdemeanor punishable by fine only and does not result in arrest, without written authorization from the person who is the subject of that portion of the recording or, if the person is deceased, from that person's authorized representative." TEX. OCC. CODE § 1701.661(f).

[5] Your question relates specifically to the exception to disclosure in section 552.108(a)(1) of the Government Code, but a "law enforcement agency may ... assert any exceptions to disclosure in Chapter 552, Government Code, or other law." Id. § 1701.661(e)(2).

[6] Subsection 1701.662(a) requires that a governmental body request a decision "from the attorney general about whether a requested body worn camera recording falls within an exception to public disclosure" not later than the 20th business day after the date of receipt of the written request. Id. § 1701.662(a). Subsection (c) requires that a governmental body submit the information required by section 552.301(e) of the Government Code not later than the twenty-fifth business day after the date of the receipt of the request. Id. § 1701.662(c).

[7] Subsection 58.008(d) authorizes a juvenile justice agency, a criminal justice agency, the child, or the child's parent or guardian to inspect or copy law enforcement records concerning a child. TEX. FAM. CODE § 58.008(d).