Author: mncogi

MNCOGI testimony in support of HF 1517

~ mncogi

MINNESOTA COALITION ON GOVERNMENT INFORMATION

Minnesota Senate Judiciary, February 26, 2018

Testimony in support of HF 1517

Thank you Mr. Chairman and Senators.  Matt Ehling, Minnesota Coalition on Government Information.  I am testifying in support of SF 1517, and will limit my comments to technical aspects of the amendment language.

The main point we would like to raise about the bill as amended, is that provisions of this bill have similarities and analogs to other, existing provisions of law.

1)  To begin, the bill would require HMOs to provide certain data – specifically, records about the resolution of quality of care complaints – to the Department of Health.  Under the current statute, HMOs are required to maintain records about these complaints, but they only have to provide statistical summaries about the complaints to the Commissioner.  Under SF 1517, providing records about the resolution of complaints would also be mandatory.

I would note that mandatory data production is not at all unusual in the current relationship between HMOs and their state regulators.  Mandatory reporting is already part of the information management reality for HMOs under Chapter 62D, as well as under Minnesota Statutes 256B.69.  Under 62D.08, HMO entities are already required to report a wide variety of information to the Department of Health, including financials, enrollment numbers, and performance information.  Under 256B.69, HMOs must report additional data to the Department of Human Services, including administrative expense reporting, data on client satisfaction, and service utilization.  So the requirement in this bill that HMOs vest quality of care complaint records with the Commissioner of Health is neither unusual or novel.

2)  Secondly, I would like to speak to the data classification status of the record provided under this bill.  The bill would classify the record provided to the Commissioner as either  “confidential” or “protected nonpublic” data, but the bill also provides an exception to that classification.  The exception is that the individual who made the complaint can access certain parts of the record.

For background, “confidential” and “protected nonpublic” status are data classifications under Minnesota law that are routinely applied to sensitive data, such as investigative data.  For example, criminal investigative is classified as “confidential” or “protected nonpublic” while the investigation is active.  These classifications mean that only the government entity holding the data can access the data.  As I’ve noted, this bill provides an exception to that protected status, by allowing the complainant to access certain parts of the record.

This exception would not be unique, however, as there are other exceptions to “confidential” and “protected nonpublic” data elsewhere in Minnesota law.  For example, there are statutory provisions in the criminal, human rights, and licensing contexts that provide government entities with the ability to release confidential data for specific purposes, as allowed by statute.  In the criminal investigative context, for instance, investigative data can be released to crime victims in certain instances, and law enforcement agencies are permitted to release confidential data to promote public safety.  Access exceptions to the general treatment of confidential data have been added by the legislature over time, to promote specific public policy goals.

3)  Finally, I would like to speak to the mechanics of how redactions would work under this bill.  The bill states that “the commissioner shall assure that all parts of the record that do not identify individuals” are accessible to the complainant, meaning that such individual data would need to be redacted before the record is presented to the complainant.  It is long-standing practice under Minnesota’s Data Practices Act for government entities to make redactions to protected data before disseminating.

The most relevant point of comparison here is to how Minnesota law treats proprietary business data held by government entities – what is called “trade secret” data under Chapter 13.  When government entities receive trade secret data from private companies, they have a legal obligation to evaluate the data, and to apply any necessary redactions before releasing the data in any form.  Under Chapter 13, it is the responsibility of the government entity to make redactions.

Similarly, as contemplated by this bill, redactions to the record would be handled by the government entity, and they would be applied to obscure the identify of any named individuals within the record.

Thank you for the opportunity to speak in favor of the bill today, and I would be happy to speak to any questions you may have.

MNCOGI to discuss government transparency issues for the 2018 legislative session

~ mncogi

The Minnesota Coalition on Government Information (MNCOGI) will discuss government transparency issues for the 2018 session on March 2nd at 10:00am in room 181 of the Minnesota State Office Building.

During the press event, MNCOGI will provide a venue for current and former elected officials to discuss the importance of government transparency.  Speakers will include current Saint Paul City Council member Jane Prince, former Minneapolis City Council member Paul Ostrow, and former Minneapolis School Board member Carla Bates.

Ms. Prince will speak in opposition to a legislative initiative put forward by the City of Woodbury that seeks to put an end to the free inspection of government data under Minnesota’s open records law.  Currently, the state’s Data Practices Act permits individuals to view requested data at no charge, while also permitting government entities to charge fees for copies if copies are requested.

Mr. Ostrow and Ms. Bates will speak to the importance of elected officials maintaining transparency in government operations, and will also highlight problems they have encountered as private citizens in seeking government information.

MNCOGI board member (and former IPAD director) Don Gemberling will discuss MNCOGI’s policy priorities for 2018, including improved retention for government e-mail, improvements to the Open Meeting Law, and related matters.

WHERE:  Minnesota State Office Building Room 181 (1st floor press conference room)

WHEN:  March 2, 10:00am-10:30am

CONTACT:  MNCOGI spokesman Don Gemberling (651-699-6553)

MNCOGI background on records retention provided to Civil Law Committee February 2, 2017

~ mncogi

OVERVIEW OF RECORDS MANAGEMENT

Prepared by Matt Ehling, MNCOGI board member

1.  The Records Management Statute (138.17) is separate from the Data Practices Act.  While the Data Practices Act regulates access to “government data,” the Records Management Statute (RMS) regulates how long government entities must keep “government records.”  Government records contain “government data” as defined by the Data Practices Act.

2.  The RMS does the following:

a.  Requires that government entities create “Records Retention Schedules” that specify how long they will keep government records;

b.  Empowers the Records Disposition Panel (the State Auditor, Legislative Auditor, Attorney General, and director of the Historical Society) to approve records retention schedules, approve when records can be destroyed, and transfer records with historical value to the State Archives at MHS;

c.  Defines various forms of “government records”;

d.  Regulates who has access to government records once they are transferred to MHS, since the Data Practices Act no longer applies once records are at MHS.

The RMS categorizes government records in terms of general categories of records, and not in terms of specific “form.”  For instance, the RMS speaks of “correspondence” and “memoranda” rather than “letters” or “e-mail.” It speaks of “recordings” instead of “videotapes” or “digital video files.”

3.  While the Data Practices Act does not apply to many rural townships, the RMS does.  However, the workload for rural townships is reduced, since they only need to maintain records under the RMS, but do not need to provide public access to the data under the Data Practices Act.

4.  The RMS requires government entities to create a records retention schedule, and to have it approved by the Records Disposition Panel.  Entities can either create their own, or use a model schedule, which many do.  MHS provides model records retention schedules that many cities, counties, townships, and other entities adopt.

The model schedules are available here.

For “correspondence” the model schedules specify the following retention periods:

a.  General County Retention Schedule:

General correspondence:  3 years

Medical examiner correspondence:  10 years

b.  General School District Retention Schedule:

Correspondence/administrative:  3 years

c.  General Township Retention Schedule:

General correspondence: 3 years

Historical correspondence:  Permanent

d.  General Cities Retention Schedule:

General correspondence: 3 years

Historical correspondence:  Permanent

Transitory correspondence:  Until read, unless content relates to city business and falls under other retention schedules.

5.  The Records Management Statute also interacts with the Official Records Act (15.17).  The Official Records Act states that government entities need to “make and preserve all records necessary to a full and accurate knowledge of their official activities.”  For many years, the Official Records Act was the only state statute that regulated government information.  John Finnegan and other people involved with the creation of the Data Practices Act disliked the Official Records Act because it did not provide much access to government information, and courts had interpreted it to be fairly narrow in its reach (see below).

6.  The Official Records Act was interpreted by a 1968 Minnesota Supreme Court case to only apply to “official” records.  The case (Kottschade v. Lundberg) held that government entities were not obligated to produce the field notes of a property assessor to the public, since such notes were not “official” records.  The enactment of the Data Practices Act – with its broad definition of “government data” – allowed the public to access government data such as field notes.  However, the concept of “official records” is still used by government agencies in the records retention area to categorize records that can be destroyed – even under a records retention schedule.  This is frequently applied to some types of e-mails. The thinking is that even if the public has access to a particular e-mail under the Data Practices Act, if that e-mail is not an “official record” then the entity does not need to keep it (unless it is the subject of a pending Data Practices Act request and disclosable as “public data”).  You can see that reflected in the recent St. Paul e-mail retention policy, where they state that messages that are not “official” can be destroyed outside of the records retention schedule.

MNCOGI background on records retention, presented to Sens. Limmer and Latz February 1, 2017

~ mncogi

MINNESOTA COALITION ON GOVERNMENT INFORMATION

RECORDS RETENTION/E-MAIL – Background

Prepared by Matt Ehling, MNCOGI board member

The Records Management Statute (Minn. Stat. 138.17) governs retention of government records.

138.17 requires government entities to create a records retention schedule and to get it approved by the Records Disposition Panel.

The RMS categorizes government records in terms of general categories of records, and not in terms of specific “form.”  For instance, the RMS speaks of “correspondence” and “memoranda” rather than “letters” or “e-mail.” It speaks of “recordings” instead of “videotapes” or “digital video files.”

At present, there is no mandatory minimum time period for the retention of “correspondence” (including e-mail) under 138.17.

The Minnesota Historical Society (which serves as part of the Records Disposition Panel) provides recommendations for records retention.  Most of the recommendations for correspondence (including county, township, school boards) center on a 3-year recommended retention period for correspondence.  The model city schedule has a 3-year recommendation for “general correspondence” but allows “transitory” e-mails to be destroyed after reading.

The Records Management Statute interfaces with the “Official Records Act” at Minn. Stat. 15.17. The Official Records Act states that government entities need to “make and preserve all records necessary to a full and accurate knowledge of their official activities.”

15.17 has been interpreted to distinguish between “official” records and others that are not “official” and can be destroyed at will.  The Governor’s Office has been operating under such an interpretation since the Ventura administration, and more recently, the City of St. Paul adjusted its e-mail policy to limit record retention by highlighting the distinctions between “official” and non-official records.

MINNESOTA COALITION ON GOVERNMENT INFORMATION

RECORDS RETENTION/E-MAIL – Policy Recommendations

Eliminate references to “official” records in 138.17 and 15.17 and replace with “government records” to make the text of both statutes align, and to eliminate the artificial between “official” records and others.  This distinction currently allows government entities great discretion to destroy records, and should be eliminated.

To codify a minimum retention period for e-mail, set a minimum retention period for “correspondence” instead of “e-mail” in order to align with the existing language of 138.17.  If desired, “correspondence” can be further clarified to cover text-based electronic communications like e-mail.

Given that a 3-year retention period for correspondence is the most frequently recommended period in Minnesota Historical Society model schedules, MNCOGI urges the adoption of 3 years as the statutory retention period for correspondence, including e-mail.

To address concerns raised by government entities about retaining unnecessary amounts of non-pertinent e-mail (such as duplicate copies of e-mailed newsletters, etc.), provision can be made at 138.17 subd. (1)(b)(4) to specify certain specific categories of records that would not be subject to retention.

MNCOGI testimony on HF 291, presented January 26, 2017

~ mncogi

MINNESOTA COALITION ON GOVERNMENT INFORMATION (MNCOGI)

Testimony of Matt Ehling related to HF 291

House Civil Law Committee 

January 26, 2017

The Minnesota Coalition on Government Information supports HF 291.  This bill seeks to clarify the language of Minn. Stat. 13.55 – the section of the Data Practices Act that classifies convention center data.

Before I discuss why clarification of this statute is desirable, I want to address its history briefly, so that its original intent is clear.

As you’ll see in our packet starting on page two, this provision of the Data Practices Act was added in the early 1980s, and was written to specifically address data held by the Saint Paul Civic Center Authority, which booked musical acts and other touring events seeking to rent the Saint Paul Civic Center.

The original statute essentially classified data that related to the marketing and negotiating activities of the Civic Center as it dealt with prospective renters.  You’ll see that the data made “nonpublic” by the statue included the identity of firms that contacted the Civic Center Authority, as well as the suggested terms of the rentals.  The statute then made this data “public” after a contract with a renter had been signed, or under certain other circumstances.  So the original statute was directed specifically at protecting the identify of – and communications with – prospective renters of Saint Paul’s convention center.  Setting aside for a moment whether this was good public policy or not, it was the original intent of the earliest version of the statute.

You’ll then see that subsequent alterations to the staute were made, which resulted in what we have today — a generalized provision that covers publicly owned and operated convention center facilities, as well as the Minnesota Sports Facilities Authority, or MSFA.  The MSFA is the successor orgnization to the Metropolitain Sports Facilities Commission.  The data elements that are covered by the statute today are essentially the same as those covered in 1982, with a couple of additions.  What is not covered are the names of individuals who recieve free or discounted tickets or other gifts from publicly owned facilities — that data is presumptively public.

After stories broke in the Star Tribune newspaper about the MSFA providing various public officials and others with free access to box seats in US Bank Stadium, the MSFA recieved press inquiries about who specifically had attended events as guests of the MSFA.  Initially, MSFA officials declined to release the names of their guests, citing Minnesota Statue 13.55 – the convention center provision that we’ve been discussing.  Eventually, the MSFA released a list that included dozens of names, due to the fact that those names were classified as public data under Minnesota law.

While data relating to persons who receive free tickets and gifts is presumptively public data under the Data Practices Act, we feel that it would be useful to reiterate that fact in law for the following reasons:

1.  First, the language of the Data Practices Act has been crafted in many instances to call out specific, public data that is described within a provision that otherwise classifies data as “not public” information.  You’ll see an example of this on page four of your packet, in Minn. Stat. 13.601.  This statute makes certain data “private,” but its language also notes that other, very specific data are public.  Generally under the Data Practices Act, the absense of specific langauge classifying data means that the data remains public, but there are instances in Chapter 13 where language calling out a public classification has been added for clarity.

2.  Secondly, in cases where there has been a controversy or disagreement about the meaning of a provision of the Data Practices Act, the legislature has sometimes added clarifying langauge to underscore the right to access certain public data.  The controversy over access to the names of persons with free access to MSFA box seats falls into this category.  Given the number of publicly-owned convention facilities in the state – ranging from the Ames Center in Burnsville to the DECC in Duluth – questions about the status of data related to gift and tickets may arise again, and additional clarity will be helpful.

MNCOGI panel discussion on records retention

~ mncogi

The public’s right to see government records is meaningless if the records don’t exist.  In this electronic era, government records are easier to destroy, denying the public information that could document the history of our times, bolster news reports, and serve audits and other checks on government accountability.

On September 8th, please join the Minnesota Coalition on Government Information for a discussion of state law, current practice, and public policy options regarding records retention. The session will provide practical, expert information to help inform journalists, historians, lawmakers and the concerned public. Panelists are:

  • James R. Nobles, Minnesota Legislative Auditor
  • Cecily Marcus, Curator, Givens Collection of African American Literature, University of Minnesota Libraries
  • Shawn Rounds, Minnesota State Archivist
  • Don Gemberling, Minnesota’s top expert on the Minnesota Government Data Practices Act

Journalist/author Jon Kerr will moderate.

The UpTake will live stream the event.  Watch it here.

Star Tribune: Senate body cam bill hinders public access

~ mncogi

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

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

~ mncogi

MINNESOTA COALITION ON GOVERNMENT INFORMATION (MNCOGI)
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.

Exceptions
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

~ mncogi

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.