The Law on Tape: How to Secure Police Recordings the Right Way
Imagine you have a new client who comes to your office seeking help following an auto accident that involved a family member. During the initial consultation, they inform you that the police have everything on tape. As the attorney for this new client, you want to review the entire police file as part of your case investigation. The issue then becomes getting access to the recordings held by the local police department. This blog post outlines the steps an attorney must take to obtain recordings held by a police department in the State of North Carolina.
Generally, a subpoena is the tool of choice to force the production of a non-party witness to testify or produce documents of interest in a pending matter. See Kilgo v. Wal-Mart Stores, Inc., 138 N.C. App. 644, 648 n.5 (2000). “Definitionally, a subpoena is ‘[a] writ or order commanding a person to appear before a court . . . , subject to a penalty for failing to comply.’” See State v. Wendorf, 274 N.C. App. 480 (2020) citing Subpoena, Black’s Law Dictionary 1563 (9th ed. 2009). Under Rule 45 of the North Carolina Rules of Civil Procedure, an attorney may, without a court order, issue a subpoena requiring a non-party witness to 1) provide documents directly to the requesting party (also called a subpoena duces tecum) or 2) appear and testify regarding matters affecting the pending litigation.
The Administrative Office of the Courts (AOC) has an online fillable form for the issuance of a subpoena under AOC-G-100. Once completed, this form can be delivered using certified mail, personal delivery, phone delivery by the local sheriff’s office, or personal service by local law enforcement. Once a subpoena is served, the receiving party may file an objection with the court and must follow all methods of service, including a certificate of service to the issuing attorney. See Powell v. Cartret, 2021-NCOA-372 and N.C. Gen. Stat. § 1A-1, Rule 5(b1).
Here’s the problem — this entire attorney-issued subpoena process is not the proper method to compel a law enforcement agency within the State of North Carolina to disclose recordings acquired during the course of an investigation. Ugh.
While North Carolina public records laws favor disclosure of materials held by public entities, see generally N.C. Gen. Stat. § 132-1 (defining public records), and although what constitutes a “public record” is to be construed broadly, the State legislature has both excluded police recordings from the definition of public records and created a very specific process for getting access to them. See N.C. Gen. Stat. § 132-1.4A.
“As defined by the custodial law enforcement agency recordings (CLEAR) statute, the law includes any visual, audio, or visual and audio recording captured by a body-worn camera, a dashboard camera, or any other video or audio recording device operated by or on behalf of a law enforcement agency or law enforcement agency personnel when carrying out law enforcement responsibilities. N.C. Gen. Stat. § 132-1.4A(a)(6) (2023).”
In re McClatchy Co., LLC, 386 N.C. 77, 79 (2024).
N.C. Gen. Stat. § 132-1.4A was originally enacted in 2016 and was amended in 2019 with additional amendments made in 2021. Under current law, it is necessary to distinguish between the reason for disclosure and the receiving party. Subsection (b1) mandates immediate disclosure for any recording which depicts a death or serious bodily injury [], upon order of the court pursuant to subsection (b3) of this section, [] to a personal representative of the deceased, the injured individual, or a personal representative on behalf of the injured individual.
Subsection (c) provides the manner in which other recordings may be disclosed. “Recordings in the custody of a law enforcement agency shall be disclosed only as provided by this section.” N.C. Gen. Stat. 132-1.4(c). Under this subsection, any individual who meets the statutory authorization may have the law enforcement agency disclose the videos directly without further court involvement. Generally, the only people eligible to request disclosure are individuals whose images or voices are captured in the recordings or their personal representatives. N.C. Gen. Stat. § 132-1.4A(c). See In re McClatchy Co., LLC at 80. If, however, the party seeking the video(s) is not covered under subsection (c), or is not a district attorney or another law enforcement agency, then that party must proceed under subsection (g) “Release of Recordings; General; Court Order Required.” See N.C. Gen. Stat. § 132-1.4A(h). “Recordings in the custody of a law enforcement agency shall only be released pursuant to court order.” N.C. Gen. Stat. § 132-1.4A(g). Additionally, subsection (g) specifies that disclosure pursuant to this subsection requires filing a court action. The Administrative Office of the Courts (AOC) has multiple forms available depending on the nature of the request.
Whether the recording depicts a death, serious bodily injury, or depicts anything else of interest will determine what section of the statute controls and what AOC form should be used. For example, see AOC Form AOC-CV-270, “Petition for Release of Custodial Law Enforcement Agency Recording,” for a general request for disclosure and AOC-CV-275, “Request to Law Enforcement Agency to Disclose Recording of Death or Serious Bodily Injury,” for recordings depicting death or serious bodily injury. As previously noted, there are several different AOC forms to use to request recordings under this statute, each one applicable to a different type of request. Additionally, there are for in-camera review and template orders available, as well.
Returning now to the scenario presented in the opening paragraph — when the prospective client tells the attorney that the police have “everything on tape,” how should the attorney proceed? If the law enforcement agency has recordings defined under N.C. Gen. Stat. § 132-1.4A, then the attorney must follow the statute and seek release through the court unless it falls under an immediate release exception. As stated above, a subpoena issued by an attorney is insufficient to compel disclosure in this manner because the statute specifies that a court order is required to permit disclosure.
Ah, but there’s one more wrinkle to consider. If the recordings or investigatory materials possessed by the police department are recordings from private businesses or citizens, such as ring doorbell cameras, or transit cameras on a bus, rather than footage from police body-worn cameras or patrol in-car cameras, then the restrictions of § 132-1.4A do not apply. In those instances, the attorney could issue that subpoena after all.
Jason Lunsford is a graduate of North Carolina Central University School of Law and currently works as the City Attorney for the City of Shelby. Prior to moving to Shelby, Jason served as an Assistant Special Counsel representing patients at Central Regional Hospital and Holly Hill Hospital and also served as an Assistant Public Defender in Durham County.