105-D:2. Use of Body-Worn Cameras.
I. This chapter shall apply to any law enforcement agency that elects to equip its law enforcement officers with body-worn cameras. All BWCs shall be operated in a manner consistent with the provisions of this chapter. Every law enforcement agency that elects to equip its officers with BWCs shall adopt policies and procedures relating to the use of BWCs and the retention and destruction of data consistent with this chapter.
II. Officers shall only use BWCs issued by their respective law enforcement agencies. BWC equipment and all data, images, and video captured, recorded, or otherwise produced by the equipment are the property of the officer's law enforcement agency and shall be subject to the restrictions in this chapter.
III. Officers who are assigned BWCs shall successfully complete an agency-approved training program to ensure proper use and operations.
IV. Officers shall only use BWCs while in uniform.
V. Officers shall activate the video and audio components of BWCs and start recording upon arrival on scene of a call for service or when engaged in any law enforcement-related encounter or activity, or, if so required by local policy, upon activation of lights and siren; provided, however, that in those cases set forth in subparagraphs VII(d) and (e), and paragraph IX in which an individual has a right not to be recorded, officers shall inform an individual of this option. If a citizen then declines to be recorded, the officer shall deactivate the audio and video functions. The officer shall document the reason why the camera was not activated in the associated police report. If exigent circumstances exist which prevent the BWC from being activated as set forth above, the device must be turned on as soon as practicable.
VI. Recordings shall be specific to an incident. Officers shall not indiscriminately record entire duties or patrols.
VII. A BWC shall not be used to record any of the following:
(a) Communications with other police personnel except to the extent such communications are incidental to a permissible recording.
(b) Encounters with police personnel or individuals whom the officer knows are acting in an undercover capacity or as confidential informants respectively, unless expressly directed to be included as part of the investigation.
(c) Intimate searches, when otherwise permitted by the agency's strip-and-body-cavity search policy.
(d) An interview with a crime victim unless his or her express consent has been obtained before the recording is made. Any recording obtained shall be consistent with the New Hampshire attorney general's model protocol for response to adult sexual assault cases, the New Hampshire attorney general's domestic violence protocol for law enforcement, the New Hampshire attorney general's stalking protocol for law enforcement, and the New Hampshire attorney general's child abuse and neglect protocol, as applicable. This subparagraph may be waived upon approval of the head of the law enforcement agency or his or her designee when the parent or legal guardian is the subject of the investigation to which a juvenile is a victim or witness.
(e) Interactions with a person seeking to report a crime anonymously. In such an instance, the law enforcement officer shall, as soon as practicable, ask the person seeking to remain anonymous if the person wants the officer to use the officer's BWC. If the person responds negatively, the law enforcement officer shall deactivate the audio and video functions.
(f) While on the grounds of any public, private, or parochial elementary or secondary school, except when responding to an imminent threat to life or health or a call for service.
(g) When on break or otherwise engaged in personal activities.
(h) In any instance when it is believed that an explosive device may be present and electrostatic interference from the BWC may trigger the device.
VIII. Officers shall inform an individual that he or she is being recorded as soon as practicable. When notification is not made, the recording officer shall note the reason for non-notification within the associated report.
IX. In locations where an individual has a reasonable expectation of privacy, such as a residence, a restroom, or a locker room, a citizen may decline to be recorded unless the recording is being made while executing an arrest warrant, or a warrant issued by a court, or the officer is in the location pursuant to a judicially-recognized exception to the warrant requirement. Officers shall inform an individual of this option. If a citizen then declines to be recorded, the officer shall deactivate the audio and video functions, and any images shall, as soon as practicable, be permanently distorted or obscured. The officer shall document the reason why the camera was not activated in the associated police report.
X. Once activated, the BWC shall remain activated until the event is completed in order to ensure the integrity of the recording unless otherwise provided in this section.
XI. If an officer fails to activate the BWC, fails to record the entire contact, interrupts the recording, or if the BWC malfunctions, the officer shall document why a recording was not made, was interrupted, or was terminated as part of the associated police report.
XII. Except as authorized in this section, no person, including without limitation officers and their supervisors, shall edit, alter, erase, delete, duplicate, copy, subject to automated analysis or analytics of any kind, including but not limited to facial recognition technology, share, display, or otherwise distribute in any manner any BWC recordings or portions thereof. This paragraph shall not apply to the sharing of a still image captured by the BWC to help identify individuals or vehicles suspected of being involved in a crime.
XIII. Recorded images and sound made from an agency-issued BWC shall be for law enforcement purposes only. All access to this data shall be audited to ensure that authorized users only are accessing the data for law enforcement purposes only. All access to BWC data shall be authorized by the head of the law enforcement agency and only for the purposes set forth in this chapter.
XIV. If an officer is suspected of wrongdoing or involved in an officer-involved shooting or other use of deadly force, the agency may limit or restrict an officer from viewing the video file.
XV. All recordings shall be securely stored no later than the end of each shift, or as soon thereafter as is reasonably practicable, in conformity to the most recent security policy of the Criminal Justice Information Services (CJIS) of the criminal justice information services division of the Federal Bureau of Investigation of the United States Department of Justice. Recordings shall not be divulged or used by a law enforcement agency for any commercial or other non-law enforcement purpose. Where a law enforcement agency authorizes a third party to act as its agent in storing recordings, the agent shall not independently access, view or alter any recording, except to delete videos as required by law or agency retention policies. Neither the agency nor its agent shall subject any recording to analysis or analytics of any kind, including without limitation facial recognition technology and data mining.
XVI. Recordings made by a BWC shall be permanently destroyed by overwriting or otherwise no sooner than 30 days and no longer than 180 days from the date the images were recorded, except that such recording shall be retained by the law enforcement agency that employs the officer whose BWC made the recording, or an authorized agent thereof, for a minimum of 3 years if:
(a) The recording captures images involving any of the following:
(1) Any action by a law enforcement officer that involves the use of deadly force or deadly restraint.
(2) The discharge of a firearm, unless for the destruction of an animal.
(3) Death or serious bodily injury.
(4) An encounter about which a complaint has been filed with the police department within 30 days after the encounter.
(b) The recording is being retained by the law enforcement agency as evidence in a civil or criminal case or as part of an internal affairs investigation or as part of an employee disciplinary investigation.
XVII. Notwithstanding the provisions of paragraph XVI:
(a) If there is any other legal requirement for retaining the recording, including but not limited to litigation, a pending criminal case, or a valid court or administrative order, then the recording shall be retained only as long as is legally required; and
(b) The chief law enforcement officer of the agency may designate the recording as a training tool, provided that a person's image and vehicle license plate numbers shall first be permanently deleted, distorted, or obscured, or the person has been given an opportunity in writing to decline to have his or her image and/or vehicle license plate number to be so used. A recording so designated and prepared may be viewed solely by officers for training purposes only.
XVIII. Any recording undertaken in violation of this chapter or any other applicable law shall be immediately destroyed and, whether destroyed or not, shall not be admissible as evidence in any criminal or civil legal or administrative proceeding, except in a proceeding against an officer for violating the provisions of this chapter. In a proceeding against an officer for violating the provisions of this chapter, the recording shall be destroyed at the conclusion of the proceeding and all appeals.
Source. 2016, 322:1, eff. Jan. 1, 2017.
