EDITOR'S NOTE: Attorney Dustin Brown, who represents the Wisconsin Newspaper Association, testified before a Wisconsin Senate committee about a bill to limit public access to video created through police body cameras. The WNA and other open government advocates, including this newspaper, have raised concerns about AB 351's intent to severely restrict access to body-cam videos. Following is testimony given by Attorney Brown, of Madison's Godfrey & Kahn law firm:
MR. Chairman, members of the Committee, my name is Dustin Brown. I am an attorney with the Madison office of Godfrey & Kahn, S.C, and I speak today on behalf of the Wisconsin Newspaper Association (the WNA). Thank you for the opportunity to testify today.
Wisconsin's public records law is an enduring testament to this state's commitment to transparency and public accountability. The records law carries out this commitment in the simplest of ways, through a presumption that all government records are public. And it defines records expansively - covering paper documents, emails, databases, video recordings, frankly any kind of data that the government creates or maintains.
The bill before the committee today runs against this tradition of openness because it flips the presumption of openness on its head as to one type of record: footage from body cameras used by law enforcement.
Under this bill:
DATA from body cameras is presumed to be confidential and exempt from disclosure.
The public records law applies only if the footage captures deaths, injuries, custodial arrests, or questioning.
Even in those situations, however, the bill imposes an additional - and unprecedented - exception: if the footage is taken in a private setting like someone's home, access will be denied unless everyone present gives their written consent.
We recognize that video recordings taken within the confines of private spaces warrant special considerations. But this proposal is inconsistent with Wisconsin law and the state's longstanding traditions of openness.
Under this bill:
THE authority to decide whether footage should be public is ceded entirely to the people who appear in the video.
Law enforcement agencies would have no discretion to overrule the decisions of those private citizens.
Likewise, the public's interest in disclosure would receive no consideration if an individual captured on the video declined to give consent.
This approach does not serve the interests of law enforcement or the public. For example, a homeowner could accuse a police officer of wrongdoing but then refuse to allow the disclosure of footage that vindicates the officer. Likewise, footage of an incident that draws tremendous public attention would remain secret if a single witness forgot to return the written consent form.
There are far less extreme ways to protect the privacy of Wisconsin citizens. The public records law already mandates that records be redacted so that the portions that can be disclosed are disclosed. The right technology will allow law enforcement agencies to perform redactions that protect privacy while giving the public the access that is their right.
THE advent of body cameras was not likely on the minds of your colleagues when they drafted the public records law more than a generation ago. But the public records law is brilliant in its adaptability. One way the presumption of openness can be overcome is through the "balancing test" - where the public's right to know is weighed against the public's interest in nondisclosure. Custodians apply the balancing test every time they respond to a public records request.
No matter how far technology advances, and no matter what kind of unforeseen scenario presents itself, the balancing test gives custodians an out. The government always retains the ability to withhold a document if the balance favors nondisclosure. Decades of cases illustrate this point.
Thus, there is no reason and no need to rush this process. The public records law would never force an authority to disclose footage that, for whatever reason, should not be disclosed.
WE therefore urge this committee to have this issue addressed in a Legislative Council study commission, where all stakeholders - the media, law enforcement, freedom of information advocates, and private citizens - can collaborate in crafting the right approach for Wisconsin.
The legislature should eventually address this issue - but this legislation does not strike the right balance. Shrouding body camera footage in secrecy does not serve the interests of your constituents. Until we reach a consensus on the correct approach, the public records law in its current form is well equipped to deal with this issue.