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Our Views: Keep police video under Open Records Law

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Sunday, October 15, 2017

An Assembly bill to restrict the release of body camera recordings would undermine the main rationale for equipping police officers with video devices.

Many communities have called for police to wear body cameras in the wake of allegations of excessive force. While many police chiefs agree the cameras create more transparency and help build public trust, the Assembly bill could have the opposite effect, preventing police from adequately responding to allegations of misconduct.

To be sure, the cameras more often than not exonerate police and prove allegations to be false, as happened in 2014 when the Janesville Police Department released video showing its officers trying to subdue an uncooperative theft suspect. The video shows police acted properly and used only as much force as necessary, despite some contrary claims.

Police organizations have voiced support for the Assembly bill, but they're mistaken in their belief that the Wisconsin Open Records Law, which provides a “balancing test” for determining whether a record should be released, cannot be properly applied to video.

Under current law, departments can use technology to redact images and audio in video that officials decide should not be public, such parts of a video that would identify a sexual assault victim. Each department can use its discretion on whether recordings should be made public, and it's important departments retain this discretion. Under existing law, members of the public who disagree with a decision to withhold parts of a video or other records can file an action in court.

The bill under consideration, AB-351, stipulates video could be released in situations involving death, arrest, injuries and searches, but it would prohibit the release of a recording depicting a location where someone “may have a reasonable expectation of privacy.” There's a way around this provision, but it would be cumbersome for both police and requester: Police would have to obtain written permission from people, such as crime victims, depicted in the video.

As the Wisconsin Freedom of Information Council noted in its written testimony to the committee studying this issue, there might be times when it's in the public interest to release recordings involving, for example, allegations of police misconduct inside a home. “Besides creating considerable additional work for law enforcement, these requirements completely fail to acknowledge the public's right to know about the actions of police in certain critical situations,” wrote Bill Lueders, president of the council.

The Janesville Police Department was among the first in the state to adopt body cameras for officers. Police Chief David Moore, in an interview with The Gazette, expressed skepticism about the bill, agreeing provisions blocking a video's release are unnecessary and that current law already allows police to withhold or redact parts of a video revealing sensitive information.

“We've had good success applying the balancing test (to video),” he said. “I'm comfortable processing the videos the way we have been.”

Moore's views on open records probably put him in the minority among police chiefs, but his assertion that video can be regulated under the same rules governing paper documents counters claims that law enforcement lacks the time, tools or ability to manage open records requests for video.

Moore noted some aspects of the bill are good, namely provisions requiring departments to form policies and train officers for using body cameras and handling video recordings. Some departments use body cameras inconsistently, and body camera practices vary widely between departments.

Body cameras are a new technology, and there's certain to be new and unanticipated consequences surrounding the release of video and the public's reaction to it.

But Wisconsin has a long history of siding with the public interest, especially regarding public's access to government records, and legislators should not allow this fear of the unknown to upend the state's tradition of making government as transparent as possible.



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