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.