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Coalition to D.C. Council: Big Fees for Body-Cam Video Redaction Have Hijacked Public Access; Plus Five Ways to Make the Video More Useful

Fritz Mulhauser | November 9, 2019

High costs and delay have limited public access to police body-worn camera video. This was the testimony of the D.C. Open Government Coalition and other critical witnesses at the Council’s October 21 review of the camera program.

“MPD has chosen an overbroad interpretation of the law,” said Coalition witness Fritz Mulhauser (this writer). “It redacts a great deal of information they shouldn’t. And it charges a bundle for doing that. So the [access] system isn’t working… and we’ll go to court if necessary.”

After a phased rollout that began in 2014, thousands of D.C. officers now wear cameras on the front of their uniform. They are to turn them on to capture video and sound at the start of police activity.

The Council in 2015 rejected the mayor’s proposal to keep the resulting records secret. Instead, lawmakers led by Council member Kenyan McDuffie (D-Ward 5) held discussions with community members and developed a consensus. Final rules allowed public access through regular Freedom of Information Act (FOIA) procedures like any other record. Also, rules allow the mayor to release video where it would be useful public education even if otherwise exempt. MPD internal affairs and the independent Office of Police Complaints can also see BWC video.

Over-redaction pushes costs sky-high, likely drives down public access

Coalition testimony showed the results have been slim—only about 140 requests granted in five years and most heavily censored.

The Coalition testified that ”redaction” or blurring of details results from incorrect interpretation of privacy exemptions. MPD tells staff at expensive high-tech firms to take out details (such as anything about a police officer’s identity, any passing pedestrian’s face or any vehicle car tag) according to the Coalition. The result: a $23 per video minute price tag.

The Coalition also reported unsuccessful efforts to uncover further details of MPD redaction policy such as how editors decide questionable cases or learn the status of any charges that resulted (that factors into privacy rules). The agency disclosed only one page of instructions after several FOIA requests. (It’s attached to the testimony.)

The excessive redaction causes the high fees quoted to requesters. Amounts have reached thousands or even millions of dollars in examples the Coalition cited, payable in advance. MPD does not provide data on how many requesters gave up from sticker shock, or on agency treatment of fee waiver requests.

The Coalition has asked the Office of Open Government for a legal review of the MPD redaction scheme.

OOG Director Niquelle Allen’s prepared testimony called for clearer redaction and fee policies. She concluded “releasing these excessively redacted videos is not in the public’s interest and creates a higher level of mistrust of police operations” and that MPD should explore doing it with government staff for faster and cheaper results for the public.

Other important BWC video uses should be expanded

The Coalition testimony also offered five ways to improve use of the new resource of real-time video of police conduct in thousands of public encounters:

· Improve public reporting by adding analysis of BWC video and statistics. The present twice-yearly MPD reports are barebones, offering zero discussion of the amazing statistics included. For example, 78 percent of 1,500 complaints were correct, that officers failed to turn cameras on when they should. What is being done about that? Nor is there any account of the results of the 20,754 videos used in internal investigations and the 3,779 used by the Office of Police Complaints. These problems and results from millions invested need more sunshine.

· Use mayoral override more often to release BWC video that can educate the public. The mayor’s office could find no records (in response to a Coalition FOIA request) of the mayor ever releasing video to help the public understand an incident, as the law allows. (An MPD witness said he thought there had been four such instances. Coalition FOIA appeal seeking a new search is pending.) In effect ignoring the goals of the BWC program to increase public trust and police accountability, the mayor declined to release video in several high-profile situations where a very concerned community had questions about police conduct. (For example, in the “Nook’s barbershop” situation in Deanwood in 2018.)

· Provide data on video viewing by subjects. This is allowed by the statute but no data is available showing if it’s being done.

· Improve police YouTube release channel. No longer in use after some early trials. Why not use more?

· Continue evaluation of the BWC program and expand outside use of data. BWC video is proving useful to analyze police conduct in complaints and litigation. What about within the police agency? MPD has reported no details of use of the video resource since they collaborated on one early evaluation that found no impact of the cameras (comparing officers with and without cameras on rates of complaints and use of force) and offering only the gloomy advice to not expect big effects in changed policing.

Council may invite public into dialogue on next steps

Public witnesses asked for a fresh look at the camera program by a task force or advisory group including the community, to strengthen policies so that video is more available and more used.

Family members gave heartbreaking accounts of individual efforts to get access. Especially troubling were accounts in officer-involved shootings of their loved ones, where family members were rebuffed for months with FOIA denials based on MPD’s “ongoing investigation” exemption (often implausible when offered many months after the event).

In response, Council member Charles Allen (D-Ward 6), chair of the Committee on Judiciary and Public Safety, sounded frustrated. He asked many witnesses to comment on the idea of even stronger default policy of open access so that police officials might more often waive exemptions.

Coalition stresses importance of richer, deeper use of camera data

Hope for improved police accountability and community trust accompanied cameras. In her opinion ending biased stop-and-frisk tactics by New York police, federal judge Shira A. Scheindlin reflected on the longstanding difficulty of knowing true facts about police conduct:

I was forced to analyze the constitutionality of the stops based on testimony given years after the encounter, at a time when the participants’ memories were likely colored by their interest in the outcome of the case and the passage of time. The NYPD’s duty to monitor stop and frisk activity is similarly hamstrung by supervisors’ inability to review an objective representation of what occurred.

(Floyd v. City of New York, 959 F. Supp. 2d 668, 685 (S.D.N.Y. 2013))

In ordering a new program of BWCs in the city, the judge concluded “body-worn cameras are uniquely suited to addressing the constitutional harms” of abusive policing.

The Coalition summarized how such hopes rose as well in the District of Columbia when the cameras came into use in 2014, to understand police conduct given their freedom of action in the street to both fight crime while also obeying the law:

Hopes also accompanied their introduction here a half decade ago, to bring to light the actual uses of this huge discretion. This new kind of evidence in court is now common, with a host of new complexities in adapting old doctrines of evidence; that experience is worth examining further, perhaps by one of the local law schools.

As far as other uses in the District, public access has been limited and MPD is largely silent on its own uses. So the question remains, as the video is used more and police work becomes more visible, is that work improving—doing better at controlling crime and also ensuring justice?

For the next five years, the agenda should be to make more, and deeper, use of the resource the BWC video affords.

Video of the roundtable is here; Coalition testimony begins at 1:30:20.