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0649, 15 Nov 17

State should standardize access to police body cam videos

My column for the Washington County Daily News is online. Actually, it was online yesterday, but I was busy. Here you go:

Technology has always pushed the boundaries of culture and it often takes time for the law to catch up. As body cameras become more common for police, the management of that footage has largely been left to individual law enforcement agencies. The Wisconsin State Assembly has passed a good bill to govern the public’s access to law enforcement body cam footage that the state Senate and governor should quickly enact into law.

The use of body cams by law enforcement has been expanding mainly due to the public’s pressure to do so. Americans grant a lot of power in our police and extend a lot of trust that they will use that power appropriately on our behalf. But that trust is not absolute and in the wake of a series of high profile incidents where a law enforcement officer killed a citizen under questionable circumstances, many members of the general public pushed for police to wear body cams to help discern the truth in such incidents.

On the other side of the coin, many law enforcement officers asked to use body cams under the belief that while a body cam video might indict a cop doing something illegally, it might also exonerate a cop who is wrongly being accused of committing a crime. Now that many law enforcement agencies are using body cams, the results are predictably varied. What we are finding is that the body cam footage of controversial incidents rarely conclusively show the “truth,” and a jolting video rarely quells the controversy.

While the use of body cam footage may not be the antidote to controversy that many had hoped, body cams have become a useful tool in the routine business of law enforcement. The question remains: now that we have thousands of law enforcement officers going about their work while recording themselves and all of the people around them, who is allowed to see those recordings?

In general, the video recorded by law enforcement’s body cams are public records. That means that upon request, the law enforcement agency must give that video to anyone who asks unless there is a compelling government interest not to do so. Our common law has always set a fairly high bar for withholding public documents, so the end result is that 95 percent of requests for police body cam video are granted.

The presents a problem in balancing the public’s right to know with the individual’s right to privacy and protection under the Fourth Amendment. While policies for when law enforcement officers activate their body cams vary, most of them are recording whenever they are engaging a member of the public for any reason. This means that even when an officer is engaging a citizen who has not committed a crime, which is the vast majority of the time, that engagement may be recorded and released on the internet for everyone to see.

For example, if an officer responds to an elderly person’s fall in his or her home, that could be recorded and released. If an officer responds to a woman who was raped, that encounter could be recorded and released. If an officer helps a person who slid into a ditch, that could be recorded and released. While some of these incidents are benign, releasing the video of the encounter could be embarrassing for the citizen, or worse, used by someone to harass or further traumatize a victim of a crime.

Rep. Jesse Kremer’s (R-Kewaskum) bill seeks to set some reasonable standards for when law enforcement body cams must be released and when they should be kept confidential. Under the bill, footage would be considered an open record and available to the public if it was taken in a public place and involved a death, assault, arrest or search. If one of those actions occurred in a place where a person had a reasonable expectation of privacy, then the footage could only be released if all of the people involved agree.

Under Kremer’s bill, police body cam footage would still be available for any legal action, civil or criminal, but only footage of actual or suspected criminal behavior could be released to the public. This strikes a reasonable balance that allows the public to continue to have general oversight of police in the most serious encounters, but protects the public from malcontents using police videos for harassment, bullying, preying, or just feeding their creepy voyeurism.

This bill was passed on a bipartisan voice vote in the Assembly and now sits in the Senate awaiting action. The Senate should pick up Kremer’s torch and carry it to Gov. Walker’s desk.


0649, 15 November 2017

1 Comment

  1. jjf

    The Wisconsin Newspaper Association has some suggestions to adjust the bill:

    Attorney James Friedman, representing the WNA, said the proposed amendment offers five critical modifications to the bill.

    “The first part of the amendment changes the list of persons to notify about a request for body camera data from ‘known victim or witness or an owner’ to ‘an individual whose image or voice appears on the data,’” Friedman said. “It seems to me those are the people who may have privacy concerns.”

    Friedman said the second proposal in the amendment would shift the burden to stop a video’s public release onto the individuals in the video. The current version of the bill requires written permission from all individuals before the video could be released; the amendment would instead require a written request from individuals to withhold the video’s release.

    The third proposal in the amendment would alter what happens when an individual does not respond to notifications that the records are being requested for release. Failing to respond would be interpreted as granting permission to release the record.

    Friedman said the amendment would also change what happens when individuals attempt to stop the release of a video.

    “Under the current draft, a denial or no response from an individual requires the custodian to deny the request,” Friedman said. “Under the new version, a written denial requires the custodian to make all reasonable efforts to redact the denying individual’s image or voice from the data before releasing it.  After attempting to redact, the custodian would apply the balancing test to the data, with the individual’s request and the result of the redaction effort expressly weighed in the balance.”

    The final modification in the amendment would allow the person requesting the video’s release to challenge denials using procedures outlined in the state public records law.

    In addition to the WNA, the amendment is also being supported by the Wisconsin Broadcasters Association.

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