MNCOGI supports cameras in courts

~ mncogi

The Minnesota Supreme Court will consider expanding a pilot program to allow audio and video coverage of criminal court proceedings after a guilty plea or verdict is entered. This follows a two-year pilot that allowed cameras at civil court proceedings.

The high court will hold a hearing on the program December 16. MNCOGI submitted a statement urging the court to accept a committee’s recommendation to expand the pilot program:

Minnesota Coalition on Government Information (MNCOGI)
Cameras in the Courts
Prepared by Hal Davis, MNCOGI board member

Minnesota Supreme Court
December 16, 2014

The Minnesota Coalition on Government Information (MNCOGI) commends the Minnesota Supreme Court for continuing to move forward in allowing Minnesotans to see their court system in action. The coalition commends the Court for its extensive efforts and hard work in striving to provide open access to judicial proceedings as we transition to the electronic age.

The U.S. Supreme Court, in a 1947 decision (Craig v. Harney, 331 U.S. 367, 374), said: “A trial is a public event. What transpires in the courtroom is public property.” In 1981, in Chandler v. Florida (449 U.S. 560), the Court ruled that states could experiment with television coverage of criminal trials. The Court found that state experimentation with “evolving technology” in the courtroom, as long as it does not infringe on “fundamental guarantees” of the accused, is consistent with the Constitution.

The public has a right to observe proceedings in open court. “To work effectively, it is important that the society’s criminal process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing people to observe it.” Richmond Newspapers, Inc., v. Virginia, 448 U.S. at 571-572 (1980).

MNCOGI commends the Advisory Committee on Rules of Criminal Procedure for proposing a pilot program to allow cameras in “criminal proceeding[s] occurring after a guilty plea has been tendered or a guilty verdict has been reached.” Rule 4.02(d). We are pleased by the recommendation that “Absent good cause, the trial judge must grant a media request for audio and video coverage of proceedings governed by the pilot,” by the presumption favoring coverage, and by the recommendation that the pilot should be carried out statewide.

This recommendation comes after a two-year pilot allowed cameras in certain civil proceedings. The 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 is appreciative of the Advisory Committee’s commitment to further open criminal proceedings to video and audio coverage, and our organization looks forward to additional steps in this area. After more than 10 years of consideration, we believe no problems will arise. Adequate safeguards are in place to protect the participants in the process and the decorum of the court. Problems that have been anticipated have not materialized. We believe that will continue to be the case.

In the State of Ohio, for instance, video is now the official record. The cameras are positioned all over the courtroom, except toward the jury box, and microphones are everywhere but the spectator area. DVDs are the public record, available for $2.25, and can hold a day-long hearing. The judges say that the fears that people would “play to the camera” have not come to pass. The cameras are so ubiquitous as to be almost invisible. Everyone knows they are there and no one thinks about them.

The Minnesota Coalition on Government Information believes that a similar outcome will ensue in this state. 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’s proposed “body cam” data framework, presented at the October 10th Data Practices Commission meeting

~ mncogi

LAW ENFORCEMENT USE OF “BODY CAM” RECORDERS:

Overview of classification and operational issues

Background

Mobile “body cam” systems are compact, camera/recording or camera/transmission devices that can be attached to clothing, glasses, or other worn garments or accessories.

Police in several Minnesota municipalities – including Duluth – have adopted such devices for use by their police departments.  At present, the city of Minneapolis is on the cusp of a body cam pilot program to help develop protocols for larger-scale implementation. The cameras are largely being adopted to enable the capture of video documentation to help resolve disputes over police conduct and/or use of force incidents.

Two types of commercially available body cam systems are being used by law enforcement agencies:

  1. Systems that record to the worn device when triggered by a user;

2.  Systems that are connected to a remote server through wireless connectivity, and record on a continuous basis.

Current data classification

At present, information gathered by police body cams is generally treated as presumptively “public” data under Chapter 13.  One exception to this public presumption involves the use of body cam data in active criminal investigations.  When such an investigation is opened, body cam data pertinent to the matter can be maintained as “not public” data for the duration of the active investigation, after which it reverts to its former, public status.  This is similar to the way that squad car video is currently treated.

Issues raised by body cam data

Body cam video holds the possibility of clarifying questions about police use of force incidents, creating accountability for the public. Body cam data may also help to prevent unfounded claims of police misconduct from being sustained.  At the same time, the mobility and pervasiveness of the video recording offered by body cams raises questions around privacy that complicate the discussion over camera operation and data classification.  For instance:

  1. Should video recorded in public areas and video recorded in private domiciles or workplaces be classified in the same way?
  1. Should police have to provide notice to persons they encounter that body cams are in operation?  In what circumstances would such notice be appropriate?
  1. Would continuous transmission of body cam data over wireless networks be susceptible to hacking or interception, and therefore trigger invasions of privacy or breaches of potentially sensitive data?
  1. Would some forms of body cam technology raise more difficult classification, use, or privacy questions than others?

MNCOGI’s proposed framework

MNCOGI continues to explore issues surrounding police body cam data, but offers the following framework to help guide the discussion surrounding the implementation of the technology, and the classification of the resulting data.

  1. Video should be presumptively public; arrest video public “at all times”.

A public classification for body cam data offers oversight benefits to the public. Public availability of the data serves the classic oversight purpose of documenting the conduct of public officials for later review.

Public access to body cam data also permits the public to review how and where the government is collecting video material. Access to the data allows the public a means of measuring the appropriateness of video collection and use.

MNCOGI generally urges a “public” classification for body cam data, with most data remaining presumptively public, and other data expressly classified as being public “at all times” under Minn. Stat. 13.82, Subd. 2. As the primary purpose of gathering the video is to provide transparent documentation of the actions of officers, some form of public status would be the best match for the data.

Actions that are most relevant to an oversight purpose should be public at all times – arrest data, for instance. Currently, Minn. Stat. 13.82 Subd. 2 includes a specific list of types of data relevant to arrests that are always public, and thus not subject to being withheld as criminal investigative data at any point. Body cam documentation of arrests should be added to that list, or otherwise specified elsewhere in Minn. Stat. 13.82. Other, specific forms of video recording might also be considered for classification as being public “at all times” under Minn. Stat. 13.82.

Other body cam data could remain unclassified, and thus presumptively public data.

  1. Privacy should be addressed through the regulation of video collection.

While body cam data could play a potentially positive oversight role, it could also greatly expand the ability of police to create a long-term surveillance record of a community, raising privacy and accountability concerns.  Much like license plate reader (LPR) technology, long-term retention of indiscriminate body cam data could vest the government with an archive of the movements and associations or individuals, or even the interiors layouts of locations that police visit for calls for service and other incidents.

Continuous, indiscriminate recording could also raise questions about whether individuals who might require police attention for welfare checks or similar services would be reluctant to call, due to hesitations about having their interactions recorded.

Such privacy issues could be addressed through a statutory scheme under which certain body cam data would be classified as “public”, while other data would be classified as “private”. However, MNCOGI believes that this matter would be better addressed through the regulation of camera use, rather than by creating multiple categories of private body cam data.

Departmental rules, municipal ordinances, or state laws could be written to address when, where, or how body cam data could be collected in order to address questions of privacy. For instance, are there situations in which notice should be required prior to recording? Welfare checks could be one set of circumstances. The recordings of arrests, on the other hand, could be regulated so as not require such notice.

The regulation of body cam recording would also ensure that the technology is used for a narrow, oversight purpose, without expanding into a more broad-based video surveillance platform.

MNCOGI letter in support of, and recommendations for, Minneapolis open data policy

~ mncogi

On July 14th, MNCOGI sent the following letter to Minneapolis City Council Member Andrew Johnson concerning the then draft Open Data Policy. This letter served as both a show of support for the issue of open data in Minneapolis, and a set of recommended changes to the draft policy in order to better align the Open Data Policy with the Minnesota Data Practices Act and federal data laws.

On July 30th, the Minneapolis City Council adopted an amended version of this Open Data Policy.

The following letter is also available for download as a PDF.

Gary Hill
Board Chair
Minnesota Coalition on Government Information

July 14th, 2014

Council Member Andrew Johnson
350 South 5th Street
Room 307
Minneapolis, MN 55415

Dear Council Member Johnson,

I am writing to you on behalf of the Minnesota Coalition on Government Information (MNCOGI), a non-profit organization dedicated to government transparency and public access to information. Our members support the aims and intentions of the city’s proposed “Open Data” policy, and we wish Minneapolis success in moving ahead with its initiative.

Bill Bushey (a MNCOGI board member who has been closely involved in discussions regarding the proposed policy) has shared a draft with our members for the purposes of gathering feedback. MNCOGI has evaluated the draft, and offers the following general comments:

1. Overall, we would urge that the draft language be modified in certain places to more closely align with terminology used in Chapter 13 of the Minnesota Statutes. This should be done in order to avoid any interpretive issues related to the implementation of the Open Data Policy within the general framework of the Data Practices Act.

For instance, the language within the “Department Responsibilities” section that describes “private” data should be modified to conform to the terminology of Chapter 13. Instead of labeling such data as simply “private,” it should be labeled as either “not public” data, or alternately, “private data on individuals, nonpublic data, or protected nonpublic data.” Please also note that “administrative cost concerns” are not permissible reasons to make data “not public” under Chapter 13.

2. We would also urge that the Open Data Policy clearly articulate the role of the Data Practices Responsible Authority (RA) within the work-flow structure of the Open Data initiative, due to the RA’s key role in administering data access under Chapter 13. In MNCOGI’s opinion, all city personnel responsible for implementing the Open Data Policy should be under the purview of the RA.

3. Finally, we would urge the city to evaluate potential liability issues related to unintentional disclosures of data classified as “not public” under state or federal law. This would be a “best practices” step that would be worth undertaking, given the potential scale of the data releases that the city would be making. Data policies like this one are cutting-edge projects, and MNCOGI wishes to see them crafted in concert with all applicable statutory requirements, so that they may become models for similar, future activities.

Please feel free to contact us with any additional follow-up questions. We appreciate your efforts to move the concept of government transparency into this new and innovative era.

Sincerely,

/s/ Gary Hill
Gary Hill
Board Chair, MNCOGI

MNCOGI opposes health care industry exemption in “Helmberger” data practices bill

~ mncogi

In 2013, the Minnesota Supreme Court issued its opinion in the Helmberger v. Johnson Controls case, which limited the application of the Data Practices Act (DPA) to private entities performing outsourced government work under contract. In its decision, the court held that private vendors whose contracts did not contain express “notice” language were exempt from the provisions the DPA. The decision reversed the previous, long-lived understanding that all Minnesota government contractors were, in fact, covered by that law.

“Helmberger” bill introduced

At the start of the current legislative session, the Minnesota Newspaper Association brought forward a bill that would remedy the Helmberger decision by specifying that all contractors performing government functions would be covered by the DPA – whether or not their contracts contained a specific notice requirement.

The bill clarifies section 13.05, Subd. 11 of the DPA, which provides the public with a valuable tool to oversee the outsourcing of government work to private entities. By providing public access to contractor data, this section of the DPA ensures that there is transparency in how tax dollars are spent, and how government functions are performed.

The “Helmberger” bill is important to government transparency, and MNCOGI board members have testified in favor of it at several legislative committee hearings. Most recently, at a joint Civil Law- HHS hearing, MNCOGI testified that the important oversight purpose of the bill should not be obscured by the addition of amendments, so that legislators could vote solely on the bill’s underlying premise.

Senate adds amendment to exempt health care industry

While in the Senate, the “Helmberger” bill had several sections added, including a section that granted a one-year exemption from the full reach of the DPA to health plans who contract for government work, as well as related providers and vendors.

MNCOGI opposes industry-wide exemptions from DPA

While this section “sunsets” after one year, MNCOGI believes that specific industries should not be granted preferential treatment in how the DPA applies to them – even for a short period of time.  Additionally, MNCOGI is concerned that once an exemption has been established in law, there may be a tendency to convert what was once a temporary statutory provision into a permanent feature of the DPA.

The House of Representatives is now set to vote on the House version of the bill on May 15. As of this writing, several amendments have been offered to the initial bill, including amendments that mirror the final Senate version (complete with its amended language).

MNCOGI is continuing to urge legislators to oppose the addition of broad, industry-wide exemptions to the bill, so that its oversight purpose does not become diluted.

Open data and comedy: They can go together

~ mncogi
MNCOGI board member Bill Bushey (center) shares the stage with Secretary of State Mark Ritchie (left) and Minneapolis Chief Information Officer Otto Doll (right)
MNCOGI board member Bill Bushey (center) shares the stage with Secretary of State Mark Ritchie (left) and Minneapolis Chief Information Officer Otto Doll (right)

 

Open Twin Cities co-founder and MNCOGI board member Bill Bushey braved the stage at Bryant Lake Bowl on Monday to sing the praises of open data, along with the Minnesota Secretary of State and Minneapolis’s chief information officer. It was all part of the Theater of Public Policy, an improv group that combines comedy with free-wheeling discussions of serious stuff. The house was packed to hear about the availability of large data sets, privacy breaches and other typically dry matter made more fluid by the wide beer selection and live music. Also spotted in the audience: MNCOGI board member Helen Burke.

MNCOGI: Minnesota should create legislative commission on data practices

~ mncogi

The Star Tribune recently ran an editorial penned by MNCOGI chair Gary Hill regarding the group’s support for a legislative commission on data practices and data privacy.

The commission idea was initially brought forward by Representative Mary Liz Holberg, a Lakeville Republican who has long been considered the legislature’s resident expert on data issues.  Senate support for the idea started with DFL Senator Scott Dibble of Minneapolis.

Holberg’s hope for the commission is to allow the legislature a better, more deliberative forum for the discussion of complex data policy matters, outside of the time crunch of the regular legislative session.

MNCOGI has testified on behalf of the House and Senate versions of the bill before several committees, and the respective bills are now awaiting action on the floor of the legislature.

MNCOGI recognizes three outstanding FOI advocates

~ mncogi

Upon receiving the 2014 John R. Finnegan Freedom of Information Award, Timberjay Newspapers publisher Marshall Helmberger said he’s gratified to know “Minnesotans still appreciate German-Norwegian stubbornness.”

Helmberger accepted the award Friday, March 14 at the annual Minnesota Coalition on Government Information FOI Day event in Minneapolis. Two pioneers for government transparency, Rodgers Adams and Robert Shaw, also received lifetime achievement awards.

MNCOGI honored Helmberger for his nearly three-year legal fight to uncover construction cost irregularities by the St. Louis County school district. The district and its contractor refused to disclose figures for a taxpayer-funded school construction project. Timberjay vs. Johnson Controls reached the Minnesota Supreme Court and prompted a legislative push to clarify how such contracts are structured.

“This fight is not over,” Helmberger said after receiving the award. He also praised First Amendment attorney  Mark Anfinson for his pro bono work on the case that Helmberger credited for “leveling the playing field” for a small newspaper going up against a Fortune 500 company with a well-financed team of lawyers.

MNCOGI also recognized two contemporaries of John Finnegan for their work with the late St. Paul Pioneer Press publisher to enact the law establishing the presumption of openness for government documents in Minnesota.

Robert Shaw, former executive director of the Minnesota Newspaper Association, and Rodgers Adams, a former assistant editor at the Star Tribune were presented with lifetime achievement awards at the event.

Former Minnesota Supreme Court Justice Paul Anderson gave the keynote address at the ceremony. He quoted Mark Twain, folk singer John Prine and Star Tribune reporter Rachel Stassen-Berger to both praise and excoriate members of the press.

“I don’t love the press,” Anderson said. “I treasure your role and I respect you.”

Anderson is recognized as a proponent of government transparency, but spoke of instances where inaccurate news reports put him in uncomfortable positions, including questioning by the FBI.

MNCOGI 2014 legislative issues

~ mncogi

On February 28th, MNCOGI released its 2014 legislative issues document during a noon-time event at the Minnesota State Capitol.

During the 2014 session, MNCOGI will be closely following several matters, including the status of license plate reader (LPR) data, provisions surrounding booking photo data, and the creation of a legislative commission on data practices.

MNCOGI’s full list of issues is reproduced below:

Data Practices Legislative Commission

• MNCOGI position:  Given the importance and complexity of data-related issues, the Minnesota Legislature should create a Legislative Commission on Data Practices.  A commission would allow the Legislature more time to study data issues (both access and privacy issues), bring recommendations, and craft bills that could be acted upon during the regular session.  The additional time afforded by the commission would allow the Legislature to take a “long view” of such matters, and aim for continuity in data policy.

LPR (License Plate Recognition) Data

• MNCOGI position:  To ensure effective oversight, provisions should be included within state law to ensure public access to data about the scope, nature, and use of LPR technology by Minnesota government entities.  MNCOGI also believes that a reasonable formula for dealing with data collected by LPR scanners is as follows:

All data collected by LPR scanners should be classified as “not public” data for a very short period of time after collection.  A retention scheme should be instituted under which “non-hit” LPR data would be quickly purged during its brief, initial status as “not public” data.  The remaining “hit” data that pertains to specific individuals or vehicles should be maintained as “not public” criminal investigative data until the closure of a criminal investigation.

Private contract, sub-contract data

• MNCOGI position:  In light of the Supreme Court’s opinion in the Helmberger v. Johnson Controls case, the Minnesota Legislature should support changes to Minnesota law that would ensure that data about privatized government functions continues to be available for public review.

Booking photograph data

• MNCOGI position:  Minnesota law should not be altered to treat requesters of booking photographs differently from other public data requesters.  Two bills introduced during the 2014 session seek to institute certain requirements related to booking photographs.  One of the bills (HF 1940) mandates that requesters submit statements regarding their intended uses of the photographs, as well as the locations where the photographs will be published.  The addition of such requirements would weaken the overall framework of the MGDPA by introducing – for the first time – mandates requiring certain requesters to specify their intended uses of government data.

HF 1940 also seeks to institute a variety of penalties for failing to comply with some of its provisions. For instance, the bill requires that persons who receive booking photographs from other parties file use-related disclosures with police agencies, or else become liable for damages. Such an approach raises significant First Amendment issues.

Prosecutors specified in “Criminal Investigative Data”

• MNCOGI position:  Prosecutors should be added to the itemized list of persons and/or entities that can receive and maintain “criminal investigative data” under Minn. Stat. 13.82.  Such a change would codify a long-standing practice recognized by IPAD advisory opinions.

Affirmative right to record open meetings

• MNCOGI position:  Minnesota law should be altered in order to codify an affirmative right to record any proceedings that are subject to Minnesota’s Open Meeting law.  Such a change would codify a long-standing Attorney General opinion on the subject,

Police “body cam” data

• MNCOGI position:  Several municipal police departments have either obtained – or are in the process of obtaining – “body cam” video recorders for patrol officers to wear.  These mobile devices record daily police interactions in order to create a record for use in criminal or civil court proceedings.  MNCOGI believes that the data created by police body cams should be classified as public “incident” data, similar to the way in which squad car video is considered to be presumptively public government data.  In both cases, the public classification of the data ensures a measure of public review of police activities.

Mass surveillance data

• MNCOGI position:  Given recent advances in technology, government entities may increasingly be able to engage in the mass collection of data about individuals that was formerly beyond the reach of large-scale capture.  Such data could include, for instance, ongoing, “real-time” information about the locations and movements of thousands of individuals.  The legislature should evaluate such technologies on an ongoing basis, and ensure statutory access to information about the nature, scale, and legal underpinnings of such technologies.

 

City finally hands over records of investigation

~ mncogi

By James Eli Shiffer, MNCOGI board member and the Star Tribune’s watchdog and data editor

I blogged last month about how the Star Tribune had waited seven months for the city of Minneapolis to hand over records of an internal investigation into a public official. The documents finally arrived last week, and staff writer Eric Roper had a story about it in Sunday’s paper.  He also offered readers the entire investigative file, so you can piece together your own story, in between eight months’ worth of redactions.

MNCOGI-SPJ response to School District 833 data practices proposal

~ mncogi

On February 3, 2014, MNCOGI and the Minnesota chapter of the Society for Professional Journalists sent a letter to several members of the Minnesota Legislature in response to a legislative priority set out by the School Board for District 833. At its January 9, 2014 meeting, the School Board listed its priorities for the coming legislative session, including making modifications to the Data Practices Act that would permit requests to be answered only if they were of “general interest to the public.”

As noted in the joint MNCOGI-SPJ letter, the district’s proposed standard would – if adopted – weaken the long-standing presumption of broad public access to Minnesota government data.  It would also permit government entities to “play favorites” with data requesters, effectively allowing them to pick and choose between who they wished to respond to. To quote from the letter,

“The proposed criteria of “general public interest” is exceedingly vague.  Some government entities might favor one requestor over another on the basis of mere political considerations, or turn aside “uncomfortable” requests that sought data related to government mismanagement, waste, fraud, or other unflattering conduct.”

Minutes from the School Board’s January 9th meeting are here. MNCOGI’s letter is available for review here.