Senate Bill 632 regarding safety and security measures in schools, specifically video cameras in special needs classrooms
Passed March 9, 2019
Takes effect on July 1, 2019
The bill provides for a video camera with the capacity to record both audio and video to be placed in each special needs, self-contained classroom in all public schools in the state. The camera must capture the whole of the classroom as well as any side room used for time out or any other purposes. The camera may not record students using the restroom or changing clothes.
There are guidelines on who may review the recordings, which is done to protect the privacy of the students in the classroom. The recordings of the classrooms generally are considered confidential. Once an incidence comes under investigation, the recording is to be preserved until the issue is fully resolved including any appeals.
Unless there is a reason to preserve the recording, a school may destroy the recording after three months. This clause is potentially problematic if a child is not charged until after the three month period has passed and the recording is destroyed. Additionally, the principal of the school is the designated custodian of all recordings.
It is anticipated the school will preserve the recording once the State begins an investigation and that the State will provide this recording in discovery. However, there is an issue with directly requesting the recording from the school – while this approach increases the likelihood you will be able to view the recording if it exists, it also tips your hand to the prosecutor and prohibits you from seeking dismissal due to lack of evidence/destruction of evidence. The best course of action will vary by case.
Undoubtedly, there will be times when the equipment fails or breaks. Under the statute, “[i]f there is an interruption in the operation of the video camera for any reason, a written explanation should be submitted to the school principal and the county board explaining the reason and length for which there was no recording.” These explanations are to be kept on file for at one year.
These recordings can go either way for our clients – in some cases, it will show the child is not responsible, in other cases, it will show the child is responsible. Either way, we need to make sure we are viewing these recordings and getting written explanations if these recordings are not available. Requests for these recordings may be made in an omnibus discovery motion or a specific discovery motion pursuant to Rule of Juvenile Procedure 21.
The video recording of self-contained classrooms must be conducted by the schools as part of the school’s pattern and practice; no warrant or other court authorization is required (as compared to the Wiretapping and Electronic Surveillance Act, W. Va. Code § 62-1D-1 et seq.). This program is contingent on the Legislature appropriating funds and the state board creating policy. If either of those things do not happen, then the cameras may or may not be installed. It is estimated to cost about $7 million, or $2600 for each of the state’s 2,709 special education classrooms. The money is to be generated through the Safe School Fund.