Six Tips to Improve Your Lockout/Tagout Program

This article was written by Eric Prinzing for Occupational Safety & Health.  It is reprinted here with permission.

Lockout/Tagout compliance is a crucial safety requirement. Preventing the accidental start-up of energy during repair and maintenances ensures the safety of workers and helps create a productive workplace.

The OSHA Lockout/Tagout Standard (1910.147) provides clear lockout safety requirements. Despite this, lockout/tagout (LOTO) continues to be found in OSHA’s top 10 most frequent cited standards. It should be seen, then, as a serious and widespread concern. Here are 6 tips to help you stay compliant:

1. Choose the right devices – A lockout device is an extremely important component of a LO/TO program. Machines, circuit breakers, plugs, switches, push buttons, and valves are just some of the items that often require lockout devices. Since there are so many choices, choosing which device or set of devices is overwhelming. There are two considerations that will help: necessity (knowing exactly what you need) and organization (using standardized devices and tools to help keep your devices organized).

   First, determine exactly what you need. OSHA’s guidelines are certainly helpful, but each workplace is unique. Create a list of all machines or electrical components that may need lockout devices. This will make buying the most appropriate devices or kits easier because most are designed to meet a specific application.

   Second, standardize and organize your lockout devices. Lockout Stations are one effective way to store and organize necessary devices. This has several benefits: Not only do stations store necessary devices, but also, they save valuable space and promote efficient operations. If devices are organized in a station, workers know exactly where to find them, when preparing for a maintenance or repair. Padlocks should be standardized by size and color so workers can easily identify function and ownership.

2. Thoroughly Document Procedures – Lockout procedures need to be formally documented. This keeps workers and management on the same page and helps to eliminate any potential confusion. Documentation also provides workers with a valuable training resource. Formal documentation is required by OSHA, but given the differences in workplaces and machines, not every procedure will be the same. It is especially important, then, to make sure the procedures are as effective as possible.

   Procedures should thoroughly detail the steps needed to shut down and isolate hazardous energy. The procedures must describe how to safely place and remove all relevant lockout/tagout devices.

   In order to make the lockout process as easy to follow as possible, procedures should be posted near the relevant machine/equipment. Machine-specific photographs detailing each step are highly recommended. Photographs have a distinct advantage over written instructions or even graphics because the provide a specific and intuitive visual reference point for workers.

3. Clearly Mark All Isolated Points – All energy control points should be clearly and permanently marked with standardized tags or labels.

   Tags and labels should be easily visible. It is also very important to make sure all energy isolation points are consistent with the machine-specific procedures discussed in tip #2.

4. Develop a Rigorous Training Program – Effective training is an indispensable part of a successful lockout program. It can also be one of the most difficult parts because all workplaces and workforces need to be trained according to their specific needs.

    It is important for each worker to know exactly what his role is. Tasks should be clearly defined and clearly assigned to the appropriate worker. There are three types of workers involved in lockout operation: authorized, affected, and other. An authorized employee is directly involved in locking out equipment and machinery scheduled for repair or maintenance. An affected employee is someone whose work is affected by lockout procedures. Usually, this means an employee who works with the equipment being locked out for service or repair. An employee is classified as other if he/she does not work with the machine/equipment, but works in the area where the equipment is located. Each worker needs to know what type of employee he/she is, and strong communication needs to be developed among all workers. Authorized employees must clearly alert all affected employees when a lockout device is placed or removed. In order to prevent unsafe removal of devices, only authorized employees can remove devices they have placed. Lockout padlocks have room for workers to clearly write their names in permanent ink, which underscores the strong need for clear assignments and individual responsibility.

   As with procedures and isolation points, documentation is an important component of training. Recording exactly what types of training have occurred is helpful on several levels. It helps management make sure all workers have been trained, and they are trained for doing the right tasks. Any gap in training can be easily found and corrected. It documents when training took place, which helps workplaces, plan ahead. If you know when your last training session took place, it is easier to plan when the next one should be implemented. Finally, looking at documentation of lockout training can help see your program from a new, more objective perspective. Suggestions can then be taken into account and improvements can be made.

   Training also should be tailored to each specific workplace. If one has a multilingual workforce, for instance, multilingual tools, signs, and documents should be used. Workers should be encouraged to relate their specific safety needs.

   OSHA requires that lockout/tagout training occur annually. Yearly training should be seen as a bare minimum rather than ideal. In many cases, it would be helpful to revisit training exercises more frequently than yearly in order to ensure that critical repairs and maintenance are being done safely. Also, repeat training helps workforces keep a “safety first” mentality. When deciding exactly how much training is necessary, it is important to keep workers engaged in the process and to make sure their ideas and concerns are carefully considered.

5. Evaluate –Careful evaluation is an invaluable tool for improvement. The success of lockout training and written procedures can only be truly gauged after they have been put to use in an actual maintenance or repair situation. Evaluation is necessary to make sure the training exercises, procedures, and devices are working properly. It also affords opportunities to make improvements that may not have been obvious in the training stage.

   OSHA provides rules for periodic inspections. These should be followed closely and provide an excellent foundation for evaluation and improvement. Inspections need to occur at least annually and be performed by an authorized employee who is not involved in the procedure being inspected. All deviations must be corrected and all roles must be thoroughly reviewed. The inspection must also be documented. The date of inspection, procedures, machines/equipment involved, and names of workers performing the inspection must be recorded.

6. Evolve – A good lockout program should always be able to evolve. OSHA may introduce more requirements or stringent guidelines. It is important to make sure your program is up to date. Open communication between all levels of employment also will help your lockout program reach its potential. A program that encourages communication can identify strengths and weaknesses more efficiently than a program that remains static and unchanging after initial training. Employees should be encouraged to communicate which training exercises are working well and which ones need “tweaking”. A lockout program can then go beyond fulfilling minimum requirements: It can be tailored to your workplace and your workforce.

 The ultimate goal is maximum safety for your workers, and all steps should be taken to reach that goal.

https://ohsonline.com/Articles/2016/08/01/Six-Tips-to-Improve-Your-Lockout-Tagout-Program.aspx

Preventing Waterjetting Injuries

You wouldn’t expect latex gloves to protect you from a gunshot. They won’t protect you from water-jetting accidents either.  

An OSHA article describing the dangers of high-pressure jetting notes, “High pressures can cause injuries similar to gunshot wounds, but have the added health hazard of involving contaminated water.”  

In pipeline-related industries, dangers are plentiful. Trenches, excavation, and confined spaces are often touted as the main concerns in risk management, but operators face another underestimated risk on a daily basis — cleaning with water under pressure.  

 “Injection injuries can happen at much lower pressures that are in use in drain and sewer applications. And that carries the risk of infection and tissue damage as well.  …Water injection injuries can appear minor but can cause serious health complications, even at pressures in the range of a consumer pressure washer or drain cleaner,” 

says Peter Wright, association manager with the WaterJet Technology Association and Industrial & Municipal Cleaning Association.  

Despite being generally overlooked in terms of safety across the industry — due in part to a relatively low rate of injury when compared to working in trenches and the like — jetting is a concern simply because of how common it is.  

Lines are jetted for daily cleaning operations, inspections, and rehabilitation: With just about any work involving pipes, water jets are in play.  

 “Trying to get people to understand that you can get injured by a water jet strike is probably the most difficult bit to get across to people,” says Nick Woodhead, president of US Jetting. “We’ve got to start promoting safety.” 

“I think people assume that hoses are not going to burst, and therefore, they are sort of immune. Or they’ve never seen a hose burst, or they’ve never seen a jet injury, so it doesn’t really register. People get complacent.”  

And it’s not just equipment malfunction that operators need to worry about.  

Case in point: Chad Unverzagt, the Indiana operator who was killed in 2012 during a routine sewer blockage. Unverzagt wasn’t killed by an exploding pipe or other malfunction — his hose got loose while the system was pressurized as he was attempting to retrieve it from the pipe. A momentary lapse in a job he’d done a thousand times before and for more than 30 years in the industry.  

With no protective gear, he didn’t stand a chance against the high-pressure water, which lacerated his neck, killing him before help could arrive.  

 “That’s more of an isolated incident, but it’s worth reminding people,” Woodhead says. “That’s why you’ve got to know what you’re working in.”  

A few months after that incident, Cleaner published another Safety First article, highlighting a new line of protective clothing from TST Sweden AB. Though the medium-pressure gear hadn’t reached enough awareness at the time to help Unverzagt, today, operators and their employers have fewer and fewer excuses for ignoring proper safety.  

“The safety gear is essential when you’re running a machine. So many people don’t wear anything,” Woodhead says. “We’ve got to try and get it across to people, it is worth investing in the kit to protect yourself. Even if you’re the operator and maybe the boss doesn’t want to spend the money; it’s worth investing in it, just as a precaution.”  

US Jetting has made it their practice to supply a pair of protective gloves to customers with the purchase of a jetting system, and it has encouraged other manufacturers to do the same.  

Other products like semiautomatic jetting systems give even more options for mitigating risk to operators.  

“OSHA says if there is safety gear available, the employers are bound to supply it,” Woodhead says. “Rather than have government regulation, we’d rather be self-regulated and have people understand (the dangers).”  

Beyond planning for the worst, simple common sense and following standard operating procedure goes a long way to ensuring safety. That includes checking the equipment before each job, performing the necessary maintenance, and assessing each job site before beginning any work.  

“It doesn’t take more than a couple of minutes to do the cursory checks,” Woodhead says. “Once you’ve gotten to your location, you’ve got to do your due diligence. … Just scope out the job for 15 or 20 minutes while your tank is filling up.”  

To get you started, Wright offers a few quick tips to keep in mind:  

“Use a skid that will not allow the nozzle to turn around in the pipe or mark the end of the hose a distance from the nozzle to help indicate the location of the nozzle within the pipe. Ensure the system is depressurized before conducting maintenance or repairs. Ensure the nozzle is well inside the pipe before bringing the system up to pressure,” Wright says.  

It’s easy to oversimplify pipe cleaning, but when the pressure is on, there’s a lot operators can do to prevent accidents — it’s just a matter of knowing how and promoting safety whenever possible.  

“It’s definitely important to have respect for the power and the force of high-pressure water streams,”  

Hearing Conservation

Hearing loss from noise can occur with no symptoms and no warnings of any kind. Its progress is so slow and sneaky that you hardly notice it because you simply adjust as sound reception becomes fainter.

People who work around noise and don’t wear hearing protection probably don’t realize what is happening to their hearing. Most people are unaware that everyday noises such as lawn mowers and machinery have an effect on hearing. Since the damage accumulates over many years, it’s often too late to prevent or reverse what has already been done.

Exposure to a large amount of sound will cause a person’s hearing to worsen temporarily. For most people, resting and avoiding loud noises returns their hearing to its normal level. Hearing loss occurs when a person is continually surrounded by loud noises and takes no precautions so that damage becomes permanent.

Every person will experience some amount of natural hearing loss as they age. Simple steps such as lowering the volume on your TV or stereo can keep hearing loss to a minimum.

Prolonged exposure to loud noises can cause permanent hearing loss, but noise can be reduced before it ever reaches the eardrum by earplugs or ear muffs (most cost-effective), or by using noise dampening materials around machinery. If ear protection is necessary for a job or certain work function, the employer (municipality) is required to have it available and require its use by employees.

5 Excuses for not wearing proper hearing protection:

• “I can’t hear other workers.” – At high noise levels, hearing becomes overloaded. Reducing overall sound levels allows the ear to operate more effectively in much the same way sunglasses provide improved vision in bright light, high-glare conditions.

• “My machine sounds different.” – The sound of a machine will sound different to workers wearing hearing protection, but they will become accustomed to the new sound and will be able to monitor the sound of machines as well at the end of the day as at the start of the shift.

• “I’m used to noise.” – Exposure to noise does not toughen ears. Ears do not become used to noise - workers become deaf.

• “Protectors are uncomfortable.” – Like new shoes or glasses, new hearing protectors need a period of adjustment. If discomfort persists, the device should be exchanged for a different size or type that will fit more comfortably.

• “I’ve already lost some of my hearing; why should I wear hearing protection now?” – Just because you lost some hearing doesn’t mean you’re protected from losing more or all of it. Initially, hearing is damaged at higher frequencies, but as unprotected exposures continue, the damage will spread to the lower frequencies, eventually affecting your understanding of speech. Although hearing protection devices cannot restore a noise-induced hearing loss, they can prevent additional losses from occurring.

It is important to remember, once hearing protection is put on it needs to be monitored. Hearing protection can loosen or be jostled out of position and needs to be readjusted from time to time to be most effective.

It is best to identify tools, machines, and areas where hearing protection must be worn, and have the appropriate types of hearing protection for the type of work.  Train your workers and have appropriate policies and procedures in writing and in place. Supervisors must monitor workers who are in areas where hearing protection is required and hold them to the policies.

Don’t play it by ear. When the job calls for hearing protection, use it!

Distracted Walking: A Major Working Safety Concern

Distracted driving is a well-established problem, so much so that many states have bans in place when it comes to using technology while driving, but the problem of “distracted walking” is a relatively new hazard. Sure, people have been walking out in front of moving objects or stepping off cliffs since the beginning of time, but a new piece of daily-use equipment seems to be increasing the problem – smartphones and tablets. While we might laugh at a woman who falls into a fountain while texting or someone who walks into a glass wall while watching a you-tube video on his phone, the problem with distracted walking is a very serious one.

According to the National Highway Traffic Safety Administration, nearly 5,000 pedestrians were killed and another 76,000 injured in traffic accidents in 2012. While it is not clear how many of these were directly attributed to distracted walking, pedestrian fatalities are getting worse each year, perhaps due to the use of smart phones and other devices.

Common risks associated with distracted walking include: trips, sprains, strains, fractures, cuts, bruises, broken bones, concussions, brain injuries, spinal cord injuries, death, and injuries to someone else. People who text while walking are 60% more likely to be injured or cause injury than non-texters. Scientist call the phenomenon, “inattentive blindness”; they state the human brain can only adequately focus on one task at a time. So, when you are texting or talking on the phone and trying to walk, you cannot give full attention to both tasks. Today we hear people brag about being able to “multi-task”, but our brains cannot efficiently provide adequate attention to more than one task at a time.

It’s not just texting while walking that is the problem. Talking, checking email, using social media, even playing games on your phone/tablet all contribute to the problem of distracted pedestrians. After years of decline, pedestrian deaths have started to increase since 2009, and while there is no reliable data directly related to cell phone use, experts speculate the increase is due in part to distracted users of cell phones while walking.

The solution to distracted walking is a simple one: Don’t use your cell phone or engage in other distracting activities while walking. Focus solely on the task at hand – getting from point A to point B in one piece, and worry about checking your phone when you get there.

Other safety concerns for pedestrians:

• Traffic signals – Obey traffic signals (whether you are driving or a pedestrian). If the traffic signal is not in your favor do not begin crossing, and look before you begin to cross.

• Cross streets at appropriate places -  Jaywalking or crossing the road where there is no crosswalk is a leading cause of pedestrian injury. The NHTSA has found that crossing streets improperly accounts for approximately 30% of pedestrian fatalities.

• Visibility – It can be difficult for drivers to see those walking at night or in low-light or inclement weather. Wear light colored clothing, walk in well lit areas or carry a flashlight, and wear reflective clothing for added visibility.

Take the time to inform employees of the hazards of distracted walking, share with them the statistics, and create policies to reduce the potential for injuries due to distracted walking incidents. It is everybody’s responsibility to help create a safe work environment.

Workplace Distraction Hazards

In a perfect world, employees don’t worry about breaking their arm, falling off scaffolds, or catching a lung disease. In a perfect world, they would be provided with excellent training, not just once, but regularly. In a perfect world, we wouldn’t have to worry about hazards at all. Besides being comfortable and self-cleaning, PPE could be worn in a matter of seconds and would have built-in chemical and radiation detectors. In a perfect world, when a vehicle was about to hit an employee or fire threatened to incinerate them, a bubble, from their PPE, would suddenly encompass them and keep them safe. Being resistant to fire, chemical toxins, harmful gases, and all the negative vibes of the world, the bubble would be the ultimate life and limb saver for the employee on the job. Maybe that’s taking it a bit too far, but you get the idea. All employees, whether they know it or not, wish for a job where they are provided with adequate training and PPE to keep them safe from the hazards in their workplace.

But even in a perfect world, any appropriate training or top-of-the-line PPE would be useless if a worker couldn’t manage one of the most threatening factors on the job: Distractions. Statistics show that distractions are a major contributor to many workplace injuries and fatalities.

Let’s briefly look at the 5 most common distractions on the job:

1. Mental distractions and inattention – Have you ever replayed in your mind unpleasant scenes from home while operating equipment? Or perhaps fantasized about how events will play out concerning your upcoming big weekend plans? Maybe you’ve chatted with a coworker while performing a hazardous task. Mental distractions often lead to inattention, and that could lead to you or a coworker being injured or killed. Whether you are worrying, daydreaming, or just chatting, mental distractions can be just as dangerous as working with electricity or highly flammable materials. Avoid falling into mental distractions. Stay focused on your work.

2. Poor housekeeping – Visual clutter can easily be translated into mental clutter. Frustration from not being able to find something due to a messy workplace can lead to overlooking a safety issue or make you angry enough to resort to aggression or violence. Keep work areas clean and clear of clutter, organize equipment and materials, and keep them in their place. Remember, too, that poor housekeeping says a lot about your attitude towards safety, quality, and productivity. Messy workspace also may give others the impression you are slothful.

3. Machinery – Make sure you perform work at a safe distance from machines, heavy equipment, and electrical hazards. They can impede your maneuverability, hearing, and vision which could cause a mishap or injury due to entrapment in moving parts or a slip, trip, and fall.

4. Hearing – Wear earplugs or muffs when working around loud machinery or equipment. But always ask your supervisor if it is permissible to listen to music or podcasts with earphones while working. It could be a distraction that could be fatal. No music or story is worth your life.

5. Long Unkempt Hair – Many accidents are caused by somebody getting hair caught in machinery or simply attempting to fix their hair while operating equipment. Loose and flowing hair can get in your face and obstruct vision or become a distracting annoyance causing a worker to perform an unsafe task. Tie long hair back, wear a hat, or get a haircut.

In a perfect world, distractions don’t exist, but since we’re stuck in an imperfect universe, all we can do is our job and do it safely to the best of our ability. We can try to help our coworkers to do the same. While some factors in the workplace can play a role in causing distractions, the fact remains that more workplace hazards spring from unsafe acts than from unsafe conditions.

Verifying and Documenting Excavation Marks

I (William Sheppard) was a Safety professional in heavy civil construction for over 10 years, and in that time, I investigated numerous incidents of breaking functioning underground utilities.  Not once did anyone get hurt or die.  What are the odds of dying from a utility strike, you ask?  The odds of being fatally injured are one in five, for those incidents with an injury.  Those aren’t good odds, so if you have hit a utility four times during your career, do not hit another. 

Under every city and town in the state and, yes, below our lakes and rivers, run utility lines, tunnels and other structures.  If you hit them some can kill you, and all will cost you.  You will encounter hidden hazards that kill the striker quickly: gas, propane and electricity.  In addition, you may also encounter those that may kill others: telephone and communication cables and national defense lines.  Many people are unaware of these hazards.  Some who are aware do not respect the danger of underground utilities. 

Anyone in Oklahoma can dial 811 or use the OKIE811 online service to notify utilities so they can “mark out” their underground facilities. Always remember, you must call for these utilities to get marked, whether you are constructing a new driveway, or driving posts for a new fence, etc. The OKIE811 system is free, it is easy, and it’s the law. 

• You must call regardless of where the excavation is located. Even if it’s on private property, out in the middle of a field, or on a street with no name – “You must Call.” 

• You must call if you are only excavating a few inches or just surface grading. If you move material – “You must Call.” 

Each year, approximately 700,000 underground utilities are struck during excavation work, according to the Common Ground Alliance, a group that provides training and education on underground hazards as well as coordinating the “OKIE811 – Call Before You Dig System.”  If you’re lucky and no one is fatally injured, the cost of one utility strike may result in serious financial losses. Additional costs can be fines levied by the utility that can no longer provide service to its clients. These fees can range around $10,000 per hour for loss of service. If you shut down a hospital or stop work at a factory, you will likely pay for their losses too. 

It has been my professional experience that there are two steps that can help eliminate and reduce excavating hazards - verifying and documenting utility mark out.  Here are some tips to help you, the excavator, work safely and save your municipality money: 

Upon arrival at the worksite, prior to beginning the excavation, an excavator should do the following: 

• Verify that the worksite matches the OKIE811 one-call request and is timely 

• Verify that all facilities have been marked and review the color codes if in doubt 

• Verify all service feeds from buildings and homes near the worksite 

• Check for any visible signs of underground facilities, such as pedestals, risers, meters and new trench lines 

• Check for any facilities that are not members of the one call center and contact someone to get them located 

It is important for excavators and locators to document the location of markings before excavation work begins.  The primary purpose of this best practice is to avoid unnecessary litigation and expensive legal fees for all parties involved.  Additionally, documenting marks is an excellent idea, as marks will be covered by spoils or degraded by weather and construction equipment and there could be, if not caught during the mark-out verification process, mismarked utilities.  In most situations when underground facilities are not properly marked, excavators have no way of knowing where underground utilities are located.  If located markings are adequately documented through the use of photographs, video, or sketches before excavation work begins, it is easier to resolve disputes if an underground facility is damaged as a result of improper marking, failure to mark, or markings that have been moved, removed, or covered.  Make sure to capture documentation (measurements) of marks in relation to permanent landmarks like large rocks, utility poles, pedestals, gates, fences and buildings. 

Governmental Fleets Not Covered by FMSCA Regulations? Think Again!

The Federal Motor Carrier Safety Administration (FMSCA) was established January 1, 2000, to regulate the trucking industry in the U.S.  The primary mission of the FMSCA is to improve the safety of commercial motor vehicles and truck drivers through the enactment and enforcement of safety regulations. 

One question Oklahoma cities and towns ask themselves is whether FMSCA regulations apply to governmental fleets. 

Many Oklahoma cities and towns believe they are exempt from FMSCA regulations governing truck weight limits and other safety regulations.  It is true that governmental fleets have exemptions for emergency vehicles and snow and ice control equipment.  However, government fleets are not exempt from operating a safe vehicle as defined by FMCSA regulations. 

Oklahoma municipalities may be exempt from the highway loading limits; however, they are still subject to vehicle design loading restrictions.  For example, if you plan on loading the rear axle of a flatbed or dump truck to 26,000 lbs., the axle (including springs and tires) must be rated for at least 26,000 lbs.  Otherwise, the flatbed truck used in this example would be considered an unsafe vehicle as mandated by FMVSS (Federal Motor Vehicle Safety Standards). 

The three common infractions for government fleets are driving without a CDL (Commercial Driver’s License), not conducting drug and alcohol testing when required and oversize or overweight municipal dump trucks, refuse haulers, or jet-rodders.  It is noteworthy that when municipal vehicles travel to other states, the size and weight violations for these vehicles are left entirely to the discretion of the state in which they are located.  It pays to be aware of the laws of states your fleet may be traveling into. 

Over the last decade more and more states have adopted most, or all, of the FMCSA regulations as their regulatory guidelines.  It is important to note that exceptions for governmental agencies only apply to particular chapters and/or sub-chapters of the FMCSA regulations.  If your agency leaves its municipal boundaries or crosses a state line, regulations may apply to your agency in different ways.  

On a related note, private entities doing government contract work, such as for-hire hauling, may mistakenly believe that FMSCA regulations do not apply to them when they are working for a government agency.  The municipal exemptions do not apply to these private entities, even when they are doing contract work for a municipality. 

Post-Incident-Interest 

Government vehicles are not targeted by law enforcement for FMSCA violations.  However, accidents can involve serious ramifications for vehicles with FMCSA safety violations.  If you’re involved in a serious accident, Highway Patrol has the right to impound your vehicles to investigate the incident under FMSCA guidelines.  This is the same way they would treat other carriers; they don’t have special guidelines to follow for governmental agencies.  They will ask for the vehicle’s driver’s vehicle inspection report (DVIR), maintenance and inspection records, and the driver’s file. 

It is important to know there is no exception to random annual drug/alcohol testing for all CDL drivers.  All municipal employees who operate vehicles requiring a CDL are subject to the CDL and drug testing requirements.  Only very specific, very narrow exceptions sometimes apply and most municipal fleets do not fit exemptions in these areas. 

What are the consequences of violating FMCSA regulations? They are the same for municipalities as for anybody else. The operator of the vehicle could be ticketed. The driver could be ticketed or warned.  If your vehicle is overweight, and you are in a state that enforces that, then you are going to get an overweight ticket. Oklahoma does enforce weight limits. 

Body Worn Video and Records Retention

BODY WORN VIDEO AND RECORDS RETENTION
With the popularity and affordability of Body Worn Video (BWV) equipment, many OMAG members are purchasing devices for their police officers.  Members learn quickly that the expense of the equipment purchase doesn’t compare to the cost of storing the video or data. OMAG Legal receives regular inquiries regarding storage/retention requirements and issues when it comes to BWV. As a service to our members, OMAG’s Legal and Risk Management Departments have developed this article addressing the most frequently asked questions regarding BWV retention.  

As of this writing, there is no legal obligation to store body (or dash) camera videos for any length of time. As such, the decision to store or not store is left to the municipality subject to the requirements of State law. The municipality should consider adopting a retention policy that takes into account the legal factors outlined in the statutes discussed below. In particular, if there is video of a use of deadly force (whether it causes death or just injuries or even where no one is actually hurt), those videos should be preserved (OMAG recommendation) and should be sent to OMAG Legal for review. Videos depicting a use of force incident causing significant bodily injury should also be preserved (OMAG recommendation).  The Statute of Limitations for Civil Rights claims is 2 years and there is a 6 month grace period to serve a Civil Rights suit after it is filed. For video capturing incidents which may lead to a Civil Rights claim, a 3 year retention would be ideal and a best practice.

The following Statutes are implicated when determining whether BWV videos should be preserved.

OPEN RECORDS ACT
“In addition to other records which are kept or maintained, every public body and public official has a specific duty to keep and maintain complete records of the receipt and expenditure of any public funds reflecting all financial and business transactions relating thereto, except that such records may be disposed of as provided by law.” 51 O.S. 24A.5. “Except as may be required in Section 24A.4 of this title, this act does not impose any additional recordkeeping requirements on public bodies or public officials.” 51 O.S. §24A.18. So the Open Records Act applies to records already in existence but only requires that financial records be kept. And even financial records can be disposed of “as provided by law.” Law Enforcement records have a specific statute, Section 24A.8, which mirrors this general non-requirement “Nothing contained in this section imposes any new recordkeeping requirements. Law enforcement records shall be kept for as long as is now or may hereafter be specified by law. Absent a legal requirement for the keeping of a law enforcement record for a specific time period, law enforcement agencies shall maintain their records for so long as needed for administrative purposes.” 51 O.S. §24A.8(C); see also Oklahoma Assoc. of Broadcasters v. City of Norman, 2016 OK 119, ¶¶25-30 390 P.3d 689 (Sec. 24A.8 is part of the entire Act and any ambiguities regarding disclosure obligations will be resolved in favor of disclosure). The question is whether any other law would apply because the Act may not require retention but it does specifically limit that “this act” does not impose requirements thus opening the door for other Statutes.

RECORDS MANAGEMENT ACT
“"Local record" means a record of a county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law unless the record is designated or treated as a state record under state law.” 67 O.S. §203(c). “The governing body of each county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law shall promote the principles of efficient records management for local records. Such governing body shall, as far as practical, follow the program, established for the management of state records. The Administrator shall, insofar as possible, upon the request of a governing body provide advice on the establishment of a local records management program.” 67 O.S. §207. 

“[S]hall, as far as practical, follow the program, established for the management of state records.” The Attorney General has declined twice to say what “as far as practical” means. See 2001 OK AG 46, ¶27, 2002 OK AG 13, ¶8 (in both instances the Attorney General opines that this is beyond the scope of the his opinion authority under 74 O.S. §18b(A)(5)). There is no need to fret: the Act delegates the authority to draft records retention policies to each agency of the state. 67 O.S. §206. The guidance in drafting a policy from the administrator is “How long do I keep records? Each record has its own disposition/retention schedule, which indicates the minimum length of time the record should be kept. A record’s retention period is based on its administrative, fiscal, legal or historical value.” Link. The Act does state “Except as otherwise provided by law, no state record shall be destroyed or otherwise disposed of unless it is determined by the Archives and Records Commission that the record has no further administrative, legal, fiscal, research or historical value.” 67 O.S. §210. §206(A)(1) and (3) arguably create a Cost/Benefit Analysis approach to the adopting of policies on retention: “[Each Agency head shall] Establish and maintain an active, continuing program for the economical and efficient management of the records of the agency” and records can be submitted to destruction when the record is “not needed in the transaction of current business and that do not have sufficient administrative, legal or fiscal value to warrant their further keeping.”

OMAG recommends that each municipality adopt policies on retention that take into account whether the record is needed for current business transactions and, if not, whether the record has administrative, legal, fiscal, research and historical value of records and then provide for their retention based on those factors. 

UNIFORM ELECTRONIC TRANSACTIONS ACT
Two defined terms that are relevant to the discussion are “"Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means” and “"Governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.” 12A O.S. §15-102(9) & (11). So the act is going to apply to cities and towns, but the Act is very deferential to government to decide its retention for itself: “Each governmental agency of this state, in cooperation with the Archives and Records Commission, shall determine whether, and the extent to which, it will create and retain electronic records and convert written records to electronic records.” 12A O.S. §15-117. The Commission that is referenced was originally created by 74 O.S. §564, but it’s since been moved to 67 O.S. §305. The statutes limit the jurisdiction of the Commission to the State and its Agencies and does not define State as including political subdivisions.

OMAG’s opinion is that this Act applies to  municipalities and would apply to body cam video, but imposes no affirmative requirements on retention.

BWV CATEGORIES
Police Officers utilizing BWV devices must adhere to a department policy that not only governs the initiation and termination of recording, but also the categorizing of the recording.  At the end of recording, or end of shift, the officer must choose if the video segments are critical, non-critical, or would be considered evidence.   For the purposes of BWV categories, a few examples of critical, non-critical, and evidence are listed below:

I.    Critical
  a.    Vehicle stop where seizure and/or arrest is made
  b.    Injury to an officer or suspect
  c.    Use of force
  d.    Formal or administrative complaint/investigation
  e.    Or as determined by policy
II.    Non-critical
  a.    Warnings
  b.    Tickets
  c.    Routine interactions with public
III.    Evidence
  a.    Any images or video captured that an officer reasonably believes constitutes evidence in a criminal case

OMAG recommends a 3 year retention for a critical category and a 180 day retention for non-critical category.  Evidence should be maintained for the amount of time required by statute, until the case is adjudicated, or all appeals have been exhausted. 

Body Worn Video and Records Retention was written by Matthew Love and Kevin McCullough.  You may contact the authors at mlove@omag.org or kmccullough@omag.org .  The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.