Today’s post was written by Lynda A. Peters. Ms. Peters is the City Prosecutor in the Chicago Corporation Counsel’s Office. As is often the case when Homeland Security Watch has a guest author, the usual caveats apply: the opinions expressed in this post are the author’s, and do not necessarily reflect the views — in this instance — of the City of Chicago, the Corporation Counsel’s Office or any other organization.
The number of Closed Circuit Television (CCTV) cameras used by security professionals in the law enforcement community has dramatically increased since the attacks on America’s homeland on September 11, 2001. Recognizing the need to leverage technology to improve public safety, increasing numbers of state and local law enforcement agencies have employed cameras. Since that time, CCTV cameras have been used in a wide variety of public safety efforts, including to combat terrorists, secure downtown commercial areas, secure critical infrastructure locations, prevent crime in high-crime areas, manage traffic flow and enforce traffic laws, and provide guidance to first responders during emergency response.
The City of Chicago has an extensive network of homeland security, crime prevention and private cameras, and the footage is available through its Police Department and Office of Emergency Management & Communications.
There are several legal requirements that increase the lifetime budget of a camera program because they necessitate the retention (i.e., storage) of footage. There are consequences of failing to budget for footage retention, including monetary penalties. These legal requirements should be considered before the decision is made whether to implement or expand the use of CCTV cameras as a public safety tool.
Trying to gain support for additional expenditure during the course of a CCTV camera program, as opposed to at its onset, is often difficult.
Typical Budgetary Considerations
In my experience, the capital investment associated with a CCTV camera program occurs at the start of the program. Expenditures include the initial purchase, installation and maintenance of cameras, and upgrades to existing technology equipment, such as monitors, so the footage can be viewed. The capital investment also should include a salary component to cover the cost of employees who are needed to monitor the captured images.
Electronic records management, retention and preservation of footage are not typically factored into the budget equation, though they should be.
Legal Considerations that Impact the Budget
Financial expenditure to cover the retention of camera footage is mandated by several legal requirements when the footage is in the possession of, or under the control of, the unit of government running the CCTV camera program.
The first requirement, and one which impacts all states in the country, is open records laws. These laws are patterned after the federal Freedom of Information Act (FOIA). Illinois’ FOIA statute, for example, mandates that, with few exceptions, “all records in the custody or possession of a public body are presumed to be open to inspection or copying.”
The definition of “public record” is very broad and covers all materials “pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.” The language of Illinois’ statute clearly includes camera footage since it applies to, among other things, “recorded information.”
The purpose behind FOIA laws is grounded in public policy. For example, the legislature in Illinois decreed
[p]ursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.
The conclusion reached by the Illinois legislature is similar to that reached by other state legislatures: access to public records promotes the transparency and accountability of government.
Retaining Records Affects Budgets
Record retention laws impose an additional legal requirement on many state and local units of government, necessitating the expenditure of monies to retain camera footage. Not every state has a record retention requirement based in statute, though it may exist through policy. Illinois is one of the states which has a statutory retention requirement and a review of the law’s language is helpful to understanding the concept of record retention.
Illinois’ Local Records Act decrees that all
public records made or received by, or under the authority of, or coming into the custody, control or possession of any officer or agency shall not be mutilated, destroyed, transferred, removed or otherwise damaged or disposed of, in whole or in part, except as provided by law.
The definition of a public record in this statute, similar to the one found in open records laws, is very broad and includes those things
made, produced, executed or received by any agency or officer pursuant to law or in connection with the transaction of public business and preserved or appropriate for preservation … as evidence of the organization, function, policies, decisions, procedures, or other activities thereof, or because of the informational data contained therein.
The obligation to preserve camera footage under Illinois’ Local Records Act is absolute. The statute states in no uncertain terms that no public record can be disposed of except pursuant to a formal retention policy which has received prior written approval of the appropriate Local Records Commission.
Preserving Evidence Also Has an Impact on Budgets
The third legal requirement that imposes a financial burden upon state and local units of government for the retention of camera footage is known as preservation of evidence. A duty to preserve evidence will be owed if a reasonable person should have foreseen that the item of evidence was material to a potential civil action.
Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.
The duty to preserve applies not just to parties to litigation. The duty applies to anyone, including an employee of a state or local unit of government, who is in possession of or exerts control over an item of evidence that a party may want to use in litigation. The duty to preserve has even been extended in one jurisdiction to cover the scenario where a party to litigation cannot fulfill the duty to preserve because he or she does not own or control the evidence:
the party still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence.
Ignoring Legal Obligations Can be Costly
The consequence of failure to abide by the legal duty to preserve can result in a wide range of penalties. When the person who or entity that failed to preserve an item of evidence is a party to the litigation, the penalty can result in or increase the likelihood of a finding of liability.
Alternatively, the penalty can include dismissal of the case, an order by the court restricting the defenses that can be claimed or an order by the court restricting the evidence and testimony that can be presented during trial.
The penalty can also include an instruction to the jury that the party’s intentional destruction of evidence relevant to an issue at trial supports an inference that the evidence “would have been unfavorable to the party responsible for its destruction.”
Whether or not the person who or entity that failed to preserve an item of evidence is a party to the litigation, the result can be the imposition of a monetary penalty, including a fine and attorneys fees and court costs associated with bringing the issue to the court’s attention.
NASCIO, a national organization representing state Chief Information Officers, likewise recommends including the cost of retention and preservation in the overall budget for a technology project:
The better approach is to examine requirements for digital preservation at the time a business need is identified, management initiatives are planned, and systems for supporting those initiatives are designed and developed. In other words, digital preservation as well as electronic records management issues need to be planned and budgeted part and parcel with any initiative that will create data, information or knowledge. When information will be created by an enterprise, the lifecycle of that information must be determined. Further, it must be valued at each phase of that lifecycle. Those economics along with regulatory requirements determine how long information will be retained by the enterprise.
What impact does the added cost associated with retention and preservation have on a state or local unit of government’s decision to embark upon or expand a CCTV camera program?
While I cannot provide an answer to that question, I can point out the obvious. In light of the limited budgetary resources presently available to most, if not all, state and local governments due to the current economic climate, consideration of the total costs associated with CCTV cameras is a duty that is clearly owed to the citizens law enforcement strives to protect.
 CCTV: Constant Cameras Track Violators, NIJ Journal (July 2003), No. 249, p. 16.
 Nestel, III, Thomas J., Using Surveillance Camera Systems to Monitor Public Domains: Can Abuse be Prevented, March 2006. p. 5.
 Id.; Zoufal, Donald, ‘Someone to Watch Over Me?’ Privacy and Governance Strategies for CCTV and Emerging Surveillance Technologies, May 15, 2008. pp. 1-2.
 NASCIO, Electronic Records Management and Digital Preservation: Protecting the Knowledge Assets of the State Government Enterprise, 2007. p.2.
 See generally: NASCIO (2007).
 Open Government Guide, http://www.rcfp.org/ogg/index.php, retrieved July 3, 2011
 5 ILCS 140/1.2.
 5 ILCS 140/2(c).
 5 ILCS 140/1.
 NASCIO (2007). p.3.
 50 ILCS 205/4.
 50 ILCS 205/3.
 50 ILCS 205/7.
 Boyd v. Travelers Insurance Company, 166 Il.2d 188, 652 N.E.2d 267, 271 (1995).
 West v. Goodyear Tire & Rubber Company, 167 F.3d 776, 779 (2nd Cir.1999), quoting generally from Black’s Law Dictionary.
 Silvestri v. General Motors Corporation, 271 F.3d 583, 591 (4th Cir. 2001)..
 Hirsch v. General Motors Corporation, et al., 266 N.J.Super. 222, 260 (1993).
 Kronisch v. United States of America, et al., 150 F.3d 112, 126 (2nd Cir. 1998).
 Mosaid Technologies Incorporated v. Samsung Electronics Co., LTD., 348 F.Supp2d 332, 339 (2004).
 NASCIO (2007), p.2.