Under Illinois’ Freedom of Information Act, there is a presumption that government records are open to the public. Body cam footage is an anomaly. Its availability is dictated by the Law Enforcement Officer-Worn Body Camera Act, not by FOIA. Want to get the footage? This guide from BGA Policy explains how.

What footage is accessible to FOIA?

For FOIA to apply, the footage must be flagged for at least one of the following reasons:

• A formal or informal complaint has been filed.                
• The officer discharged their firearm or used force during the encounter.                 
• Death or great bodily harm occurred to any person in the recording.                 
• The encounter resulted in a detention or an arrest, excluding traffic stops which resulted in only a minor traffic offense or business offense.                
• The officer is the subject of an internal investigation or otherwise being investigated for possible misconduct.                 
• The supervisor of the officer, prosecutor, defendant, or court determines that the encounter has evidentiary value in a criminal prosecution.                
• The recording officer requests that the video be flagged for official purposes related to their official duties or believes it may have evidentiary value in a criminal prosecution.

If the subject of the encounter has a reasonable expectation of privacy, then all three of the following conditions must be met:

• The video must be flagged as described above. 
• The subject of the encounter captured on the recording is a victim or witness.
• The law enforcement agency obtains written permission from the subject of the video or their legal representative. 

How do you know if the subject has a reasonable expectation of privacy? It isn’t always obvious, but in general when the subject of the video is inside their home, they have a reasonable expectation of privacy. If they’re on the street or in a public place, they don’t. If the subject was arrested as a result of the encounter, there’s no expectation of privacy.

The subject of a video — or their legal representative — can request footage of the encounter through FOIA. 

Other FOIA exemptions may still apply, including law enforcement exemptions for interference with an ongoing investigation.

How long is body cam footage saved?

The standard retention period is 90 days, but flagged recordings are kept for two years. If the footage is used in a criminal, civil or administrative proceeding, it is kept until a final disposition and order from the court. This is important to keep in mind, especially if you’re looking for footage from an encounter associated with a complaint. If the complaint was filed after the 90-day period, it may already be deleted.

The same factors that make body cam footage subject to FOIA also flag the video for retention of two years instead of 90 days. There are other reasons that footage can be flagged to be kept past 90 days, such as the video being used as evidence, for criminal prosecution or for training, but these reasons on their own don’t make the video also subject to FOIA. 

This means you have two years to ask for footage. Past that point, there’s a good chance it’s been destroyed.

Recordings can’t be altered or destroyed before their 90-day expiration date, and flagged videos can’t be altered or destroyed before the two years are up. If any unflagged recordings are altered or erased before the 90-day storage period, agencies are required to have a written record of who altered them and why. The law is not clear if the same is true for flagged recordings altered or destroyed before their two-year expiration date. This written record is another document you can request through the typical FOIA process. However, the video itself is not necessarily subject to FOIA just because it was altered.

When are body cams turned on?

The state’s SAFE-T Act mandated all law enforcement agencies use body cameras for all officers. 

The Law Enforcement Officer-Worn Body Camera Act mandates that police agencies create policies on body cam use, with the Illinois Law Enforcement Training and Standards Board creating a model policy that must include multiple elements laid out in the act.

The statute mandates that body cam policies require cameras to be on whenever an officer is in uniform, on duty and engaging in law enforcement-related activities. Exceptions include being in sight of another law enforcement agency’s camera system and under certain circumstances when a victim or community member asks the officer to turn off the camera. Cameras must be turned off during community care functions — activity that’s clearly unrelated to the investigation of a crime — unless the officer suspects the person they’re interacting with has committed or is committing a crime. Sometimes urgent circumstances prevent an officer from turning their camera on, but they must do so as soon as possible.

How to write the request

As BGA Policy says in our general FOIA guide, there is no magic language to FOIA requests. Determine the appropriate FOIA officer and submit your request by email or fax. Describe the footage you’re looking for, including date, incident type and any other descriptions. When a video is flagged, there is often accompanying documentation of the event. These documents, such as a formal complaint filed with the Illinois Law Enforcement Training and Standards Board, will often also be subject to FOIA. Citing these other documents can help you identify which body cam footage you’re requesting.

Be sure to include the reason the video is flagged in your request. It can help avoid the back and forth with a FOIA officer on whether the video can be requested.

Getting the data

FOIA allows requesters to specify the format: MPG, MP4, MOV or a CD or thumb drive. Asking for the video to be converted into a different format may lead to fees. 

Example request

Dear FOIA Officer,

In accordance with the Illinois Freedom of Information Act (5 ILCS 140), I am requesting access to the following records in your organization’s possession related to [provide the topic of your FOIA request].

In accordance with the Law Enforcement Officer-Worn Body Camera Act, the video has been flagged to be eligible for FOIA for the following reasons [keep the ones that are relevant to your request]:

• A formal or informal complaint has been filed.                
• The officer discharged their firearm or used force during the encounter.                 
• Death or great bodily harm occurred to any person in the recording.                 
• The encounter resulted in a detention or an arrest, excluding traffic stops which resulted in only a minor traffic offense or business offense.                
• The officer is the subject of an internal investigation or otherwise being investigated for possible misconduct.                 
• The supervisor of the officer, prosecutor, defendant, or court determines that the encounter has evidentiary value in a criminal prosecution.                
• The recording officer requests that the video be flagged for official purposes related to their official duties or believes it may have evidentiary value in a criminal prosecution.

In the unlikely event that you claim any portion of the above public records to be exempt from disclosure under 5 ILCS 140, in writing please (i) identify which portion or portions you claim are exempt and the statutory provision or provisions you contend apply; (ii) set forth the reasons for your conclusion that such portion or portions are exempt; and (iii) release the remainder of such records for inspection and copying, redacting only the portion or portions you claim are exempt.

Please note that the statute does not allow your agency to withhold records in their entirety if only parts of them may be exempt.

Please provide the information within five business days, as required by law. If the records are kept electronically, please provide them that way.

Thank you,

[Your name]

[Your organization, optional]

[Your street address]

[City, state, ZIP code]

[Your phone number]

[Your email address]

After you submit your request

The rest of the process is the same as any other FOIA. Wait for a response, keep track of who you reach out to and when regarding your request, and follow BGA Policy’s FOIA guide if your request is rejected.