MINNESOTA COALITION ON GOVERNMENT INFORMATION (MNCOGI)
Testimony of Matt Ehling related to HF 291
House Civil Law Committee
January 26, 2017
The Minnesota Coalition on Government Information supports HF 291. This bill seeks to clarify the language of Minn. Stat. 13.55 – the section of the Data Practices Act that classifies convention center data.
Before I discuss why clarification of this statute is desirable, I want to address its history briefly, so that its original intent is clear.
As you’ll see in our packet starting on page two, this provision of the Data Practices Act was added in the early 1980s, and was written to specifically address data held by the Saint Paul Civic Center Authority, which booked musical acts and other touring events seeking to rent the Saint Paul Civic Center.
The original statute essentially classified data that related to the marketing and negotiating activities of the Civic Center as it dealt with prospective renters. You’ll see that the data made “nonpublic” by the statue included the identity of firms that contacted the Civic Center Authority, as well as the suggested terms of the rentals. The statute then made this data “public” after a contract with a renter had been signed, or under certain other circumstances. So the original statute was directed specifically at protecting the identify of – and communications with – prospective renters of Saint Paul’s convention center. Setting aside for a moment whether this was good public policy or not, it was the original intent of the earliest version of the statute.
You’ll then see that subsequent alterations to the staute were made, which resulted in what we have today — a generalized provision that covers publicly owned and operated convention center facilities, as well as the Minnesota Sports Facilities Authority, or MSFA. The MSFA is the successor orgnization to the Metropolitain Sports Facilities Commission. The data elements that are covered by the statute today are essentially the same as those covered in 1982, with a couple of additions. What is not covered are the names of individuals who recieve free or discounted tickets or other gifts from publicly owned facilities — that data is presumptively public.
After stories broke in the Star Tribune newspaper about the MSFA providing various public officials and others with free access to box seats in US Bank Stadium, the MSFA recieved press inquiries about who specifically had attended events as guests of the MSFA. Initially, MSFA officials declined to release the names of their guests, citing Minnesota Statue 13.55 – the convention center provision that we’ve been discussing. Eventually, the MSFA released a list that included dozens of names, due to the fact that those names were classified as public data under Minnesota law.
While data relating to persons who receive free tickets and gifts is presumptively public data under the Data Practices Act, we feel that it would be useful to reiterate that fact in law for the following reasons:
1. First, the language of the Data Practices Act has been crafted in many instances to call out specific, public data that is described within a provision that otherwise classifies data as “not public” information. You’ll see an example of this on page four of your packet, in Minn. Stat. 13.601. This statute makes certain data “private,” but its language also notes that other, very specific data are public. Generally under the Data Practices Act, the absense of specific langauge classifying data means that the data remains public, but there are instances in Chapter 13 where language calling out a public classification has been added for clarity.
2. Secondly, in cases where there has been a controversy or disagreement about the meaning of a provision of the Data Practices Act, the legislature has sometimes added clarifying langauge to underscore the right to access certain public data. The controversy over access to the names of persons with free access to MSFA box seats falls into this category. Given the number of publicly-owned convention facilities in the state – ranging from the Ames Center in Burnsville to the DECC in Duluth – questions about the status of data related to gift and tickets may arise again, and additional clarity will be helpful.
The Star Tribune editorial board has urged the legislature to strike a different balance in its final body camera legislation than the position recently taken by the Minnesota Senate. The Senate bill – passed earlier this week – would make most body camera video “private” data. Such data would only be accessible to subjects captured by the video, or to the police who collected the footage. The Senate bill makes an exception for a very limited category of data – video captured in a public place that documents police use of a dangerous weapon, or police use of force that results in substantial bodily harm.
Body cameras have been used in Minnesota for almost six years under the current terms of the Data Practices Act, which provides public access to much footage, but also provides privacy protections to over a dozen categories of individuals, including undercover officers and certain crime victims. If images of those persons are present in body camera recordings, they must be redacted (“blurred out”) before the footage is released. If police departments do not have the technology to redact videos, they currently have the discretion to edit out sections that contain protected images.
Given the fact that the public has had access to much body camera footage for several years now – and to dash cam videos for many years prior – reclassifying most body cam footage as “private” takes too broad a brush to the regulatory questions surrounding body camera data. We agree with the Star Tribune that a more nuanced approach is needed – an approach that is more mindful of government transparency.
MINNESOTA COALITION ON GOVERNMENT INFORMATION (MNCOGI)
Joint Hearing on body camera regulation, Dec. 16, 2015
Full written testimony of Matt Ehling
Chair, MNCOGI Legislative Issues Committee
Thank you for the opportunity to testify about Representative Scott’s proposed body camera bill.
The debate over how to regulate body cameras has been going on for over a year here at the legislature, and has raised many intertwined questions about personal privacy, government oversight, and technological novelty.
Over that year, people have asked whether body cameras are mechanisms for government transparency … whether they investigative tools … or whether they are invasions of personal privacy.
As technology continues to advance, these sorts of questions will get more and more involved, across all sorts of platforms. We feel that this bill is an example of a thoughtful approach that can be brought to these kinds of issues. It is a framework that still faces some adjustment, I’m sure, but it is a very solid conceptual base that addresses the many differing and competing aspects of the body camera debate.
As I’ve mentioned, body cameras have both transparency and privacy impacts. I want to begin our comments by addressing how the bill deals with questions of personal privacy. This has been a recurring theme, due to the fact that body cameras are highly portable, and can easily enter private places such as homes.
Our organization has noted that by controlling when and how body camera video can be collected – especially in private places – the legislature can address some of the thorny privacy concerns that surround body camera use. And we’re pleased to see that this bill recognizes that approach.
Let me turn your attention to the second page of our packet. As you’ll see, in subdivision 3, the bill sets out a regulatory framework for the collection of body camera video. This framework deals with the use of body cameras in private places – places where there is a reasonable expectation of privacy.
And so to do that, the bill looks to the traditional framework that governs other police functions as a starting place for regulating body cameras. Fourth Amendment case law has long recognized that government actors must either have legal authorization to undertake certain actions, or they must have the consent of individuals. This bill takes that concept, and applies it to the use of body cameras. It recognizes that body camera use is separate and discreet from police entry onto property, and it requires its own, discreet treatment.
As you see in the packet, the bill requires that when police enter private property, they must first notify those they encounter that body cameras may be used. Then, they must also seek consent in order to record.
This consent-based approach applies to a wide range of situations that police face every day – welfare checks, responding to complaints, writing reports in private homes, and so forth. We believe that given the option, many people will choose not be recorded in private places during consensual encounters with police. If they do permit recording, their decision will have been made voluntarily, and with notice. And so the net effect of having a consent requirement in law will be to reduce the amount of video that’s recorded in private places, thus addressing privacy concerns, and also creating a smaller and more manageable pool of such data.
Now while consent will be the rule for body camera recording, there are several exceptions in the bill. Again, following the logic of Fourth Amendment case law, the bill recognizes situations in which police may record body camera footage without consent. Just like home entries and searches, consent to use body cameras is not required if police have a valid search warrant, or if exigent circumstances exist. The exigent circumstances category is well defined by case law that already governs entry and searches, and includes scenarios such as hot pursuit, intervening to stop violence, and so forth.
In addition, the consent requirement of this bill does not apply when police are responding to a report of domestic abuse, in recognition that the victim may be coerced, and may not be free to consent in those situations.
Let’s now turn to questions of data classification – the other key part of this bill. Data classification has been an issue of dispute, and those disputes have centered around how much data to make public, or how much to make private. We have long contended that if police oversight is a key reason for why we have body cameras in the first place, then the resulting data needs to be classified to meet that purpose. This necessitates that – at minimum – data involving core police activities needs to be accessible to the public, and not just to the subjects involved.
Over the past year, we have advocated for fairly broad public access to body camera video. Others have disagreed, and have sought tighter controls. We feel that this bill finds a reasonable compromise that still preserves public access to the most critical oversight-related footage.
As you can see on page three of our packet, the bill breaks body camera data down into two distinct batches – data that document “emergencies, investigations, incidents, or request for services” – and those that do not. In our materials, we label the former activities – such as investigations – “core activities.”
As you can see on page three, body camera footage that does not capture core activities is classified as “private” or “nonpublic” data – that is, data that is only available to the subject of the data, and not to the general public.
So what kind of footage might this be? One example would be footage from a body camera incidentally left on by an officer over their lunch break. Or from a body camera that was left running after a call for service had already been completed. That kind of footage would be classified as private data.
Core activities in public places
Moving down the page, let’s now turn to body camera footage related to core activities – those activities that have the highest oversight value. Again, this data involves “emergencies, investigations, incidents, and calls for service.” The bill classifies this data in two separate ways. First, if any of those activities occur in a public place, any body camera footage that captures them is classified as “public,” and is available through data requests.
Core activities in private places
Moving further down the page, body camera footage of core activities that’s recorded in private places – places where individuals have a reasonable expectation of privacy – is treated separately. That footage is classified as “private” data, with one key exception. The exception applies to footage that documents police actions that involve a use of force that results in bodily harm. And so this two pronged-classification makes most footage recorded in private places “private” data. But importantly – it also recognizes that even in private places, events may occur that have a public oversight value. For instance, in the event of a controversial police shooting, related body camera footage should be available to the public no matter if that shooting occurred inside or outside. The public interest in that footage is not diminished by the change of location.
Let me speak briefly to how this section interfaces with existing law. As with much other police data, data that’s made public by this section can be temporarily converted to a “not public” status during a criminal investigation. After the close of the investigation, the data would be public once again, but it would need to have image of protected persons – such as undercover officers – redacted before public release, as well as footage that is “clearly offensive to common sensibilities.” Both of those procedures are addressed by current law, and still interact with this proposed body camera section.
Other data-related provisions
There are some other data-related provision in this bill that I will briefly speak to as I close. The bill make a technical change to existing language in the Data Practices Act that I’ve already mentioned – language that allows material that is “clearly offensive to common sensibilities” to be redacted. Right now, that language says that “photographs” may be redacted. We’ve urged that the word “photographs” be replaced by “images” in order to cover body cameras and other recording devices. We are glad to see that the bill addresses this issue, and makes that change.
Finally, the bill makes it exceedingly clear that private vendors such as Taser International – the vendors that provide both the body camera systems and their data storage solutions – are covered by the Data Practices Act, including its provisions that allow for lawsuits and damages in the event of violations.
And so in closing, we are supportive of this proposal and what it seeks to achieve, and I’d be happy to take any questions.
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.
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.
MNCOGI’s proposed “body cam” data framework, presented at the October 10th Data Practices Commission meeting
LAW ENFORCEMENT USE OF “BODY CAM” RECORDERS:
Overview of classification and operational issues
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:
- 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:
- Should video recorded in public areas and video recorded in private domiciles or workplaces be classified in the same way?
- Should police have to provide notice to persons they encounter that body cams are in operation? In what circumstances would such notice be appropriate?
- 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?
- 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.
- 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.
- 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.
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.
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.
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.
The MNCOGI board recently approved its draft of a possible “traveling law enforcement data” bill at its November 11th meeting. The draft language creates a classification scheme for law enforcement data entering Minnesota from other states, and sets out the following results:
1. Data that is already public in another state would remain public when transferred to Minnesota;
2. Data that is already classified as “not public” data in another state would remain “not public” in Minnesota for a period of one year. After that time it would become public data in Minnesota, unless the data became part of a Minnesota criminal investigation.
MNCOGI’s language would also require that agencies keep a public log with details about the “traveling law enforcement data” coming into their possession. Finally, bi-annual audits would be required to ensure that “traveling” data that became part of a Minnesota criminal investigation met the threshold for “criminal investigative data” as set out by state law.
The draft bill has been shared with the Minnesota Chiefs of Police Association, as part of ongoing talks about this issue. Watch this space for more updates on this process.
– Matt Ehling, MNCOGI board member
Non-Minnesota police entities prepare and disseminate “threat assessment” and other “criminal intelligence” information to Minnesota law enforcement agencies, including the Bureau of Criminal Apprehension and its component MNJAC (the Minnesota Joint Analysis Center). Such data are often utilized in support of crime and terrorism prevention, and can consist of reports on individuals or groups who are believed to pose a threat to public safety.
The classification of this type of data in Minnesota has been in dispute for some time, as some of it does not fit neatly within the existing law enforcement data sections of Chapter 13. In addition, certain non-Minnesota law enforcement entities have reportedly been hesitant to share some of this data with Minnesota agencies, expressing concerns that the data might become public under the Minnesota Government Data Practices Act. Civil libertarians and political activists have also raised questions about the content of some criminal intelligence data. They have expressed concerns that the inappropriate use of such data could have a chilling effect on the constitutionally protected activities of individuals or political organizations. Since 2009, three bills addressing criminal intelligence data have been introduced in the Minnesota legislature, but none have passed.
Recently, the Minnesota Chiefs of Police Association (MCPA) approached MNCOGI about working together to craft a narrow bill that addressed state-to-state “traveling” data – including criminal intelligence data – while setting aside any larger discussions about criminal intelligence data generated by Minnesota agencies until another time. MNCOGI has agreed to prepare the first draft of a bill that would address data coming into Minnesota from law enforcement entities in other states. Formal talks began earlier this month, and are ongoing.
Efforts at crafting criminal intelligence bills require multiple stakeholders. The traveling data discussion will solict input from all parties as it moves forward. MNCOGI is also presenting updates about this process on its blog. Find the minutes of the first meeting between MNCOGI and MCPA representatives here, and watch this space for more updates.