DULUTH, Minn. -- The shooting of a knife-wielding man inside a Duluth home in August was perhaps the first major test of privacy and open record laws in the era of body cameras.
The incident was captured by multiple officers on their body-mounted cameras, and prosecutors reviewed the footage before determining that the officer’s use of deadly force was justified.
The public, however, has not seen that video.
Police administration and city officials have withheld the video, citing a need for the state to issue further clarification on privacy issues involving open record laws. But proponents of government transparency and police accountability continue to push for access to body camera videos, especially in use-of-force incidents.
As the number of agencies equipping its officers with cameras continues to rise, so do the issues of privacy and transparency surrounding their use. And it appears likely, experts say, that the debate is going to culminate in a fight at the Minnesota Legislature’s next session in early 2015.
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“I think we’re going to see a knockdown, drag-out battle at the Capitol next year,” said Mark Anfinson, a Twin Cities media attorney. “We’re in brand-new territory here.”
No specific laws
The Duluth Police Department purchased body cameras for all of its uniformed officers earlier this year, fully implementing the program in June. It was the first major department in the state to do so.
Department policy instructs officers to record almost all incident responses, including traffic stops, arrests, searches, confrontations, uses of force and interviews with suspects and witnesses.
One of the biggest problems associated with implementation of the program, Duluth Police Chief Gordon Ramsay said, is that state law does not define when video is public or private.
“The bottom line is requests are going to be made,” he said. “The data practice laws do not address body cameras. We’re pioneers in the state on this issue.”
In the Duluth shooting case, the video was requested by the Duluth newspaper and other local news organizations. But police have withheld it thus far, suggesting it might remain private because it occurred within a private residence.
Ramsay has spoken with legislators and written in support of laws that would implement policies for public access to body camera video. He has expressed concerns about the public being able to access videos that may contain private or sensitive information.
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“I’m a huge proponent of cameras,” he said. “But we need to figure out how to balance the need for transparency while respecting the privacy expectations of our citizenry.”
Anfinson, who works with numerous media outlets and the Minnesota Newspaper Association, said there are no laws on the books that would prevent the release of videos taken by police officers in the course of their duties.
“Body camera video is public data,” he said. “It’s my opinion that it’s not even something that they’re allowed to withhold while it’s being investigated. … It’s public incident data from the get-go.”
Awaiting state ruling
The city filed a preemptive strike in the issue last week.
City attorneys asked the Minnesota Department of Administration, which oversees data practice requests, to place temporary restrictions on access to certain video.
The request asks that the state allow agencies to withhold videos that were recorded inside “private places,” schools and hospitals. Videos from investigations of domestic assault, sexual assault, mental health crises or juvenile crimes also would not be available to the public.
“Body cameras provide a useful tool for law enforcement,” attorneys wrote in the application. “One of the primary uses of this new technology is to capture and preserve evidence for use in criminal investigations and court proceedings. However, the technology is advancing faster than the law. As a result, there are compelling concerns regarding citizen privacy.”
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It’s a request that some open-records advocates and government watchdogs said is an overreach intended to keep the public from accessing police videos.
Rich Neumeister, a longtime citizen advocate for government transparency, said the request, if granted, would allow police to withhold a wide range of video.
“It’s very broad and gives a lot of discretion for police departments to keep things secret,” Neumeister said after reviewing the city’s request.
Neumeister suggested that there already are applicable laws to cover the areas for concern cited in the document. For example, laws already provide for the protection of the identities of sexual assault victims, he said.
“There’s already law that can be applied to these situations,” he argued.
The city’s request will be reviewed by the Department of Administration’s Information Policy Analysis Division, which has 90 days to issue a decision. Any classification would be temporary, pending further action by the legislature.
Wave of the future
The Duluth Police Department isn’t the only agency in the state using body cameras. Others, too, have adopted the technology, or at least started testing it.
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The Burnsville Police Department has been using them for a few years. Some Minneapolis officers began wearing cameras for the first time last month.
And it appears the trend won’t be slowing down any time soon. President Obama earlier this month requested $263 million in funding to help pay for more than 50,000 body cameras nationwide.
A Justice Department-funded report published earlier this year by the nonprofit Police Executive Research Forum found that of the 63 agencies that reported using body cameras, about one-third did not have a written policy covering their use.
“There has been overwhelming public support for body cameras,” Ramsay said. “It’s the wave of the future.”
The city’s application to the state included a letter of support from the city of Maplewood. Deputy City Attorney Allison also noted that the cities of Minneapolis and Burnsville were preparing letters of support.
Anfinson, who plans to file objections to the city’s application, said he’s hopeful Information Policy Analysis Division will reject the application, saying there is no specific legal basis for videos to be withheld.
But Anfinson said the battle was to be expected, and probably won’t be resolved until the Legislature takes it up.
“This is exactly the type of complicated analysis that has been anticipated,” he said. “It is a mess of legal issues, a whole bunch of which collide with each other.”
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Ramsay said the city will be content to abide by any ruling from the state.
“We want clarification on what is public and what is not,” he said. “I’m not in a seat to decide. Whatever the Department of Administration decides, we’ll comply with.”
