Star Tribune: Senate body cam bill hinders public access

The Star Tribune editorial board has urged the legislature to strike a different balance in its final body camera legislation than the position recently taken by the Minnesota Senate. The Senate bill – passed earlier this week – would make most body camera video “private” data. Such data would only be accessible to subjects captured by the video, or to the police who collected the footage. The Senate bill makes an exception for a very limited category of data – video captured in a public place that documents police use of a dangerous weapon, or police use of force that results in substantial bodily harm.

Body cameras have been used in Minnesota for almost six years under the current terms of the Data Practices Act, which provides public access to much footage, but also provides privacy protections to over a dozen categories of individuals, including undercover officers and certain crime victims. If images of those persons are present in body camera recordings, they must be redacted (“blurred out”) before the footage is released. If police departments do not have the technology to redact videos, they currently have the discretion to edit out sections that contain protected images.

Given the fact that the public has had access to much body camera footage for several years now – and to dash cam videos for many years prior – reclassifying most body cam footage as “private” takes too broad a brush to the regulatory questions surrounding body camera data.  We agree with the Star Tribune that a more nuanced approach is needed – an approach that is more mindful of government transparency.

Pioneer Press: Any body camera law must be fully vetted

MNCOGI’s Don Gemberling is quoted in a Pioneer Press op-ed on body camera policy. The Pioneer Press editorial board notes that existing law should govern access to body camera footage until the legislature has enough time to study the nuances of the issue.

According to the editorial board:

“If lawmakers wait until more of them are better informed, as they should, existing law prevails. It stipulates that most footage body cameras collect is presumed public, except in certain situations — for example, while a criminal investigation is under way or if footage would reveal the identity of sexual assault victims.”

MNCOGI testimony: December 16, 2015 joint body camera hearing

Joint Hearing on body camera regulation, Dec. 16, 2015

Full written testimony of Matt Ehling
Chair, MNCOGI Legislative Issues Committee

Thank you for the opportunity to testify about Representative Scott’s proposed body camera bill.

The debate over how to regulate body cameras has been going on for over a year here at the legislature, and has raised many intertwined questions about personal privacy, government oversight, and technological novelty.

Over that year, people have asked whether body cameras are mechanisms for government transparency … whether they investigative tools … or whether they are invasions of personal privacy.

As technology continues to advance, these sorts of questions will get more and more involved, across all sorts of platforms. We feel that this bill is an example of a thoughtful approach that can be brought to these kinds of issues. It is a framework that still faces some adjustment, I’m sure, but it is a very solid conceptual base that addresses the many differing and competing aspects of the body camera debate.

Individual privacy
As I’ve mentioned, body cameras have both transparency and privacy impacts. I want to begin our comments by addressing how the bill deals with questions of personal privacy. This has been a recurring theme, due to the fact that body cameras are highly portable, and can easily enter private places such as homes.

Our organization has noted that by controlling when and how body camera video can be collected – especially in private places – the legislature can address some of the thorny privacy concerns that surround body camera use. And we’re pleased to see that this bill recognizes that approach.

Let me turn your attention to the second page of our packet. As you’ll see, in subdivision 3, the bill sets out a regulatory framework for the collection of body camera video. This framework deals with the use of body cameras in private places – places where there is a reasonable expectation of privacy.

Consent framework
And so to do that, the bill looks to the traditional framework that governs other police functions as a starting place for regulating body cameras. Fourth Amendment case law has long recognized that government actors must either have legal authorization to undertake certain actions, or they must have the consent of individuals. This bill takes that concept, and applies it to the use of body cameras. It recognizes that body camera use is separate and discreet from police entry onto property, and it requires its own, discreet treatment.

As you see in the packet, the bill requires that when police enter private property, they must first notify those they encounter that body cameras may be used. Then, they must also seek consent in order to record.

This consent-based approach applies to a wide range of situations that police face every day – welfare checks, responding to complaints, writing reports in private homes, and so forth. We believe that given the option, many people will choose not be recorded in private places during consensual encounters with police. If they do permit recording, their decision will have been made voluntarily, and with notice. And so the net effect of having a consent requirement in law will be to reduce the amount of video that’s recorded in private places, thus addressing privacy concerns, and also creating a smaller and more manageable pool of such data.

Now while consent will be the rule for body camera recording, there are several exceptions in the bill. Again, following the logic of Fourth Amendment case law, the bill recognizes situations in which police may record body camera footage without consent. Just like home entries and searches, consent to use body cameras is not required if police have a valid search warrant, or if exigent circumstances exist. The exigent circumstances category is well defined by case law that already governs entry and searches, and includes scenarios such as hot pursuit, intervening to stop violence, and so forth.

In addition, the consent requirement of this bill does not apply when police are responding to a report of domestic abuse, in recognition that the victim may be coerced, and may not be free to consent in those situations.

Data classification
Let’s now turn to questions of data classification – the other key part of this bill. Data classification has been an issue of dispute, and those disputes have centered around how much data to make public, or how much to make private. We have long contended that if police oversight is a key reason for why we have body cameras in the first place, then the resulting data needs to be classified to meet that purpose. This necessitates that – at minimum – data involving core police activities needs to be accessible to the public, and not just to the subjects involved.

Over the past year, we have advocated for fairly broad public access to body camera video. Others have disagreed, and have sought tighter controls. We feel that this bill finds a reasonable compromise that still preserves public access to the most critical oversight-related footage.

As you can see on page three of our packet, the bill breaks body camera data down into two distinct batches – data that document “emergencies, investigations, incidents, or request for services” – and those that do not. In our materials, we label the former activities – such as investigations – “core activities.”

Non-core activities
As you can see on page three, body camera footage that does not capture core activities is classified as “private” or “nonpublic” data – that is, data that is only available to the subject of the data, and not to the general public.

So what kind of footage might this be? One example would be footage from a body camera incidentally left on by an officer over their lunch break. Or from a body camera that was left running after a call for service had already been completed. That kind of footage would be classified as private data.

Core activities in public places
Moving down the page, let’s now turn to body camera footage related to core activities – those activities that have the highest oversight value. Again, this data involves “emergencies, investigations, incidents, and calls for service.” The bill classifies this data in two separate ways. First, if any of those activities occur in a public place, any body camera footage that captures them is classified as “public,” and is available through data requests.

Core activities in private places
Moving further down the page, body camera footage of core activities that’s recorded in private places – places where individuals have a reasonable expectation of privacy – is treated separately. That footage is classified as “private” data, with one key exception. The exception applies to footage that documents police actions that involve a use of force that results in bodily harm. And so this two pronged-classification makes most footage recorded in private places “private” data. But importantly – it also recognizes that even in private places, events may occur that have a public oversight value. For instance, in the event of a controversial police shooting, related body camera footage should be available to the public no matter if that shooting occurred inside or outside. The public interest in that footage is not diminished by the change of location.

Let me speak briefly to how this section interfaces with existing law. As with much other police data, data that’s made public by this section can be temporarily converted to a “not public” status during a criminal investigation. After the close of the investigation, the data would be public once again, but it would need to have image of protected persons – such as undercover officers – redacted before public release, as well as footage that is “clearly offensive to common sensibilities.” Both of those procedures are addressed by current law, and still interact with this proposed body camera section.

Other data-related provisions
There are some other data-related provision in this bill that I will briefly speak to as I close. The bill make a technical change to existing language in the Data Practices Act that I’ve already mentioned – language that allows material that is “clearly offensive to common sensibilities” to be redacted. Right now, that language says that “photographs” may be redacted. We’ve urged that the word “photographs” be replaced by “images” in order to cover body cameras and other recording devices. We are glad to see that the bill addresses this issue, and makes that change.

Finally, the bill makes it exceedingly clear that private vendors such as Taser International – the vendors that provide both the body camera systems and their data storage solutions – are covered by the Data Practices Act, including its provisions that allow for lawsuits and damages in the event of violations.

And so in closing, we are supportive of this proposal and what it seeks to achieve, and I’d be happy to take any questions.

Thank you.

MNCOGI testimony: December 1, 2015 Data Practices Commission

Testimony of Matt Ehling
Chair, Legislative Issues Committee
Minnesota Coalition on Government Information

Legislative Commission on Data Practices
Hearing of December 1, 2015

Full written comments

Good morning, and thank you Madame Chair.

My name is Matt Ehling. I am the chair of the legislative issues committee of the Minnesota Coalition on Government Information. Thank you for the invitation to be here this morning, and to be part of this ongoing discussion.

We have been part of the policy debate around body camera legislation since 2014, when this commission first took up the issue. Most recently, we have provided input to the working group on body camera legislation convened by Representative Scott that includes Senator Latz and others.

I’ll first provide some background on this issue, and then will set out our organization’s position on this matter.

Two kinds of policy questions
There are two key policy areas surrounding body cameras:

First, there are questions about whether body cameras should be used in the first place. These include questions such as “Do body cameras provide increased government oversight, as proponents claim? Do they actually provide clarity and resolution to disputes? And are they worth the money that municipalities pay for them?” These are questions for the end-users of these systems — the citizens of the municipalities that will actually make decisions about using them.

Then, there are the bigger-picture regulatory issues that surround body camera policy, including the questions that this commission is tasked to evaluate, such as how to classify the data that result from their use. These classification issues form the bulk of our comments on this matter.

Uses of law enforcement video
I should note that while body cameras represent a newer generation of law enforcement technology, they have been in limited use in some Minnesota cities for some time now – including in Richfield and Duluth. At this point, law enforcement has also used dashboard cameras to document arrests and other incidents for almost two decades. Police agencies have also used video cameras to document crime scenes for even longer, and so there is institutional experience within police departments about how to treat law enforcement video. All of the video gathered to date has been covered by the existing provisions of the Data Practices Act.

Police video – background

Existing law governing video recordings
For context, let me speak briefly about the classification status of law enforcement video under current law. At present, body camera video is classified as presumptively public data. Since there is no body-camera specific provision of the Data Practices Act, police video falls under the general presumption that data are public unless another provision of law applies. There are several of these, and you can see them on the chart we have provided.

Criminal investigative data, including exceptions
The first provision that can apply to any law enforcement data- video or otherwise – is the criminal investigative provision of Minnesota Statutes 13.82. If an investigation is opened, the police video footage would become “confidential” or “protected nonpublic” data, meaning that it cannot be shared with either the subject of the video, or with the public until the investigation is complete. There are exceptions, however. These include data that relate to arrests, or to certain incident data, including whether a suspect offers resistance to an arrest, or whether officers use weapons. Data that document these things – including on video images – are classified as “public at all times” under 13.82, subdivisions 2, 3, and 6, and are accessible by public data requests.

Discretion to release “public benefit” data
In addition, police have discretion under current law to release additional investigative data under 13.82 subdivision 15, which states that police can release investigative data if it would aid the law enforcement process, or dispel widespread rumor and unrest. Again, the discretion here lies with the law enforcement agency.

Withholding “not public” data
Beyond these provisions of law, the Data Practices Act also allows the withholding of video that is “offensive to common sensibilities.” I have seen instances where this withholding has been applied to images of deceased persons, but it could be applied even more broadly to images of nudity, suicide, as so forth.

Finally, there are numerous provisions of existing law that allow police to withhold images of specific individuals, including undercover law enforcement officers, victims of sexual assault, other crime victims, and over a dozen other categories. Any police video that includes such images would need to have those images redacted before public release.

This framework has been in place for several decades, and we feel that it has largely worked to address issues surrounding police video up to the present. I would note, however, that there are certain areas where adjustments and improvements could be made. Let me describe our policy priorities by summarizing the high points of the policy document that we’ve provided in our materials.

MNCOGI policy recommendation highlights

Provide additional clarity around coverage of existing law
First, we propose to add additional clarity to existing law to ensure that the status of police video is self-evident. Although the framework that I’ve described covers police video today, there is no terminology describing video in 13.82. This has led to some confusion, and we propose to remedy that by clearly describing that police video – including body camera video – is covered by the existing provisions that describe what is public and not public under 13.82

Clarify “clearly offensive to common sensibilities” language
We would also like to ensure that the language of 13.82 subdivision 7 – which describes the withholding of material that is “clearly offensive to common sensibilities” – is clarified to cover all images. Right now, the language says that it applies to “photographs” which is older language that needs to be updated. We are also open to having a discussion of how to more specifically define that the existing language means, and what it covers.

Ensure continued access to important public video
Third, we want to ensure that if any changes to the classification of police video are made, important oversight-related data remains public. At minimum – arrest, incident, and response data should remain public at all times, and video documenting any use of force should remain publicly available after an investigation is closed.

In regard to arrest video, I would note that we do not have secret arrests in this country. Because of that, data which documents an arrest – including video recordings – should continue to be publicly available at the time of the arrest.

Likewise, data that document the use of weapons under subdivision 2 and 6 should continue to be public at all times, and video that documents any use of force should continue to be public once an investigation is closed.

We recognize that using force is difficult – it is the certainly most difficult task that law enforcement is called upon to perform. Whether effectuating an arrest, or stopping a crime in progress, the use of force has to be both effective, and lawful in its application. We recognize the difficulty of that task.

However, it is also true that the use of force is the most consequential power the government has at its disposal, and like any governmental power, it holds the potential for abuse. And so it follows that if the government is documenting its use of force with body cameras or other devices, that video should be available to the public for the purpose of oversight and evaluation. This is particularly true in a society where governmental power rests on the consent of the governed.

We feel that there might be room for negotiation around other points of body camera video, and are willing to discuss whether certain pieces of video might require additional privacy protections, such as video of certain domestic incidents. However, we believe that core-oversight related video must remain public.

Consent requirement for recording in private places
Outside of classification issues, we feel that there is one key regulatory change that the legislature should enact in order to deal with body cameras. Body cameras are different from squad car cameras in that they are portable, and can record activity in private places, such as homes. As body cameras proliferate, they will enter into private places more frequently, causing increased privacy concerns.

While the Data Practices Act makes some law enforcement video (such as certain victim data) “not public,” other recordings – such as video of officers entering a private home to interview witnesses – would be publicly available, thus exposing home interiors and other details to the public.

We believe that the best way to deal with this situation is to make a change to state law that requires notice and consent before recording police video in a private places. Given the option, we believe that most people will opt-out of being recorded in consensual encounters with police such a welfare checks, thus eliminating video-related privacy concerns from those encounters, since video of those encounters will not exist.

We would also recommend that the law allow for common-law exceptions for consent, such as during exigent circumstances where police have to act quickly to enter a home to stop pending violence. In those circumstances, police should be able to record video as needed, at their discretion.

We would note that it the legislature does not proactively adopt a consent requirement for recording in private homes, it is likely that lawsuits may ensue, and that courts will impose a case-law requirement. We believe that recording of video in a private home is a form of search or seizure, and is a separate and discreet action from police entering a private home. The two have to be considered separately, with discreet consent for each.

Other recommendations
Finally, we have offered a series of other recommendations, which I won’t discuss in detail in order to save time. You can see these in our attached materials, and I’d be happy to take questions on them.

In short, we believe that the existing framework governing law enforcement data has a sound logic to it, and that its key pieces should continue to cover body camera video. At the same time, we are seeking some updates and modifications, and are open to targeted discussions about changes that other parties may seek.

Thank you.

Cameras in courts: A judge approves

Below is an email received by David Unze of the St. Cloud Times from Judge Michael Jesse, who presided at a hearing Nov. 25 in Benton County. He sent it to Mr. Unze within 45 minutes or so of the hearing ending.

“Hello Dave – just wanted to let you know from my perspective, the cameras in the courtroom experience this afternoon went very smoothly and unobtrusively. I appreciate all of your effort to make sure it would happen this way. From what I can tell, the attorneys were also very satisfied with everything. Defense counsel initially wanted the camera placement to be back in the audience where the public generally sits, but I told them I authorized camera presence in the jury box and counsel said they understood.

“Please share this with whomever you wish. I have no hesitation in repeating this experience again.

“Thank you for your help.”

Cameras in the courts pilot project expands

A pilot project allowing cameras in some criminal court hearings has begun in Minnesota district courts.

The project that began Nov. 10 is limited to hearings after a defendant is convicted in certain types of cases. Cameras aren’t allowed when a jury is present, and they’re excluded from juvenile proceedings or those involving domestic violence or sex crimes. They also aren’t allowed in specialized courts for drug, mental health, veteran and DWI cases.

The project expands a similar one that allowed cameras at civil case hearings.

The Minnesota Supreme Court decided in August to allow expanded access of media camera and audio recordings of criminal proceedings as part of a pilot project. Formerly, all parties to a case had to consent before recordings were allowed, leading to few cases where cameras were permitted.

Under the expanded pilot program, victims testifying as part of sentencing or other post-verdict proceedings must give consent to be recorded.

News organizations and the Minnesota Coalition on Government Information have tried for years to get cameras and other devices into courtrooms by loosening a 1974 prohibition. Supreme Court justices said in their order that they were trying to address concerns of intrusive or prejudicial coverage while bringing about confidence in the judicial system’s fairness.

After the two-year pilot allowed cameras in certain civil proceedings, The Minnesota Supreme Court’s Advisory Committee on General Rules of Practice reported, among its conclusions:

“The committee is not aware of any problems or complaints caused by the use of cameras or audio recording equipment in court proceedings during the pilot period.

“Coverage of the proceedings has not, to the committee’s knowledge, generated any known prejudice to any of the parties.”

MNCOGI believes that further opening Minnesota courts to audio and video coverage will foster community understanding and present citizens with a positive experience of what goes on in their courtrooms.

MNCOGI will post on its website links to news reports that include camera coverage of court proceedings.

These are some of the reports:

Cameras Flick On In Minnesota’s Criminal Courtrooms

McKinney sentenced in Wylie murder

Craigslist Swindler Who Cost Investors $330K Sentenced To Prison

Eden Prairie Woman Found Guilty Of Embezzling $1.3M

Man Gets 12 Years In Death Of Former Roommate

Cameras make debut in Duluth courtroom

Rosemount Woman Gets 15 Years For Aiding Anarae Schunk’s Death

Emotional Outbursts Follow Alexandria Woman’s Murder Sentencing

Status of data in the Jamar Clark investigation

As has been widely reported in the local press, Twin Cities resident Jamar Clark was shot during an encounter with police in the early hours of November 15, 2015, and later died from that gunshot wound.  Controversy over the incident sparked demonstrations outside of the Minneapolis Police Department’s Fourth Precinct headquarters, and led to a protest-related shut-down of Interstate 94.

At present, both the Minnesota Bureau of Criminal Apprehension (BCA) and the Federal Bureau of Investigation (FBI) are conducting investigations into the shooting.  Much discussion in the press has focused on questions of when investigative data will be available to the public, in order to provide a clear picture of the incident.  MNCOGI presents the following summary of the status of such data:

Criminal investigative data:  When data gathered by police becomes part of an active criminal investigation, it becomes “confidential” or “protected nonpublic” data, depending on whether the data pertains to an individual or not.  While data is classified in this way, it cannot be shared with either the subject of the data, or with members of the public who ask for it.  This data classification extends to any video of the incident obtained by the police, with the exception of certain arrest or incident data.  After an investigation is closed, the “not public” data reverts to a public status, with certain exceptions.

Arrest data:  Even after a criminal investigation has been opened, certain data still remains public, even though other, related data gets converted into various forms of “not public” data.  Data that is public “at all times” includes certain arrest data, including data documenting whether any weapons were used by police, or whether there was any resistance encountered by police.  If this data exists in the form of a video recording, any portion of the recording that documents such details is public data.  In the Jamar Clark case, the BCA has indicated that it holds certain video of the incident.

Incident data:  Like arrest data, certain law enforcement “incident” data is always public, even after a criminal investigation has been opened.  Such data includes the date, time, and place of the police action, police report numbers, and other factual information (such as the use of weapons) similar to the “arrest data” discussed above.

Names of officers:  The names of the officers involved in the shooting were released on November 18th, several days after the incident occurred.  MNCOGI notes that the names of officers involved in any arrest or law enforcement incident are public “at all times” under Minnesota law.  This is true even if other data connected to an arrest or incident has been converted into criminal investigative data.

Public benefit data:  The law enforcement section of the Data Practices Act has a little-used provision that deals with “public benefit data.”  That section states that even when certain data is being maintained as “not public” criminal investigative data, police agencies can choose to release particular data to the public if the release would “aid with the law enforcement process, promote public safety, or dispel widespread rumor or unrest.”

Federal criminal investigative data:  Any Minneapolis Police Department (MPD) data related to the Clark case that has been transferred to the FBI will have its own classification under federal law.  Exemption 7(a) of the federal Freedom of Information Act prohibits the release of data on ongoing criminal investigations.  Federal law does not contain provisions that make some law enforcement data (such as certain arrest data) public during an investigation, as Minnesota law does.  To obtain arrest data related to the Clark case, it would be necessary to request it from the MPD or the BCA – not the FBI.

MNCOGI Supports Call For Legislative Openness and Transparency

Minnesota recently received a grade of D- from the Center for Public Integrity for its lack of transparency and openness in state government. In response, Minnesota House Minority Leader Paul Thissen has called for much needed and long overdue reforms. MNCOGI supports such reforms, and encourages Rep. Thissen and other legislative leaders to strengthen the public’s right to know.

The Center for Public Integrity and Rep. Thissen were both highly critical of a process where closed door meetings produced agreements and bills that were rushed to a vote before lawmakers knew what was in them.  Rep. Thissen said that the “chaotic conclusion” of the 2015 session was a “mockery of legislative process,” and called for reform legislation that would provide lawmakers and the public at least 24 hours to review any proposed legislation.

MNCOGI believes that this proposal is a good first step, but also believes that the legislature and the governor should do more.  Meetings where deals are being cut should be open to the public.  After all, it is the public’s business that is being done, and taxpayers’ money that is being spent.

Voters cannot hold their lawmakers accountable if they are kept in the dark, and the deal making is secret.  A little sunshine would go a long way to restoring Minnesota’s reputation for clean government.

If lawmakers cannot see their way clear to opening the doors, they should at least require that the closed meetings be recorded, and the recordings be made public after the legislation is adopted. That would provide the transparency the public needs in order to hold its elected officials accountable.

Back in the 1970s, the Minnesota Legislature passed good-government legislation called the Minnesota Government Data Practices Act.  The law applied to almost all levels of Minnesota Government.  Counties, cities, school districts, and more were included, but courts and the Minnesota Legislature were excluded. Rep Thissen thinks it’s time to see if the law should be extended to the legislature. MNCOGI believes that this is a sound suggestion, and pledges its support to craft appropriate legislation.

2015 legislative session round-up

James Shiffer (of the Star Tribune’s “Full Disclosure” column, as well as the MNCOGI board) uses his Sunday column to list the open government “wins” of the 2015 legislative session.  These include increased transparency measures for police surveillance equipment, as well as the rejection of bills that would have made certain body camera data, birth record data, and police incident data “not public.”  MNCOGI testified on all of these issues over the course of the session.  We will soon be posting our 2015 testimony and realted documentation in the “policy” section of our blog.  We use that portion of our site as a year-by-year archive of transparency issues that have arisen at the capitol.

MNCOGI notes that the legislative actions highlighed above were due to bi-partisan support from key, transparency-minded legislators, including Reps. Peggy Scott and John Lesch, as well as Senators Branden Petersen, Warren Limmer, Scott Dibble, and many others in both houses.  Our thanks go out to all who have supported the cause of government transparency in Minnesota.

The public needs to fully understand the debate over body camera policy

On April 27th, a letter from MNCOGI’s Gary Hill about police body camera data ran in the Star Tribune newspaper. Find the link here.  The text is below.

The public needs to fully understand the debate over body camera policy

Body-worn police cameras are being used more and more frequently, and legislators are currently grappling with how to classify “body cam” data in order to determine what should be public or private.

The debate over body camera policy has become needlessly complicated because some policy advocates are seeking legislative action without a comprehensive understanding of the status of body camera video under existing law.

For instance, the Coalition for Battered Women recently urged the Legislature to declare nearly all body cam data off-limits to the public, saying secrecy is needed to protect the privacy of victims of sexual assault. Police unions also have cited crime victims in arguing for broad restrictions on public access to body cam data. But much data — including video recordings — on victims of sexual assault or other crimes are private under existing state law.

Closing off public access to most body camera data is unnecessary to protect victim privacy, and would have the effect of hiding video related to police accountability. Controversies over recent shootings by law enforcement underscore the need for better documentation of police response, and body cameras are seen as a way to do so. But the cameras’ potential will never be realized if the public is barred from viewing the video.