D.C. Police for Years Have Violated Law in Blurring Released Police Video: New Ruling Calls for Clearer, Faster and Cheaper Access
Fritz Mulhauser | November 7, 2020 | Last modified: November 9, 2020
After 13 months of investigation, the D.C. Office of Open Government (OOG) in a November 5 opinion has advised the Metropolitan Police Department to correct mistaken policies on blurring details and charging fees for released video. The new ruling says D.C. law supports the public right to know and requires not “redaction” but release of most images of officers and bystanders, house addresses, and car tags where those are on video from officers’ body-worn cameras (BWC).
The incorrect redaction rules in effect for the last five years, according to the OOG, violate the D.C. Freedom of Information Act (FOIA) in multiple ways. The Open Government Coalition has long argued this results in excessive high-tech video and audio editing work (farmed out to expensive contractors) which raised fees, delayed response and made the result hard to interpret.
Any kind of public access was controversial when the BWC program was proposed in 2014. Following community consultations and intense deliberation on the mayor’s plan to keep the video secret, the D.C. Council in 2015 rejected that idea and instead allowed access to the video through the usual public records request process prescribed in the FOIA. That law protects privacy but in balance with the public right to know what government is up to.
BWC video release has not satisfied the community especially as video has not been promptly available to show what happened in police shooting deaths. Routine release has been troubled as well; the Coalition has testified repeatedly based on community complaints about months and years of delay and proposed redaction charges ranging from thousands to millions of dollars.
MPD data show over 2,300 body cameras are now issued to patrol officers (and 800 more to others). They must be turned on to record throughout most interactions with the public. The agency is behind in twice-yearly reports required by law on camera details but the latest (covering January through June 2019) showed cameras recorded 259,000 hours of police work in the community. Access work has not deluged the police department as the mayor forecast–only 151 public requests came in during that six month period, yet the cumbersome release process meant that only 38 percent were completed.
The new OOG ruling came in response to a D.C. Open Government Coalition complaint October 1, 2019, asking for review of redaction policy and whether it was based on proper reading of the balance in D.C. FOIA of public access and privacy protection. The Coalition asked the office to investigate after its own months of fruitless efforts to get clear answers from D.C. police about the redaction rules and their legal basis.
In a dramatic 4000-word text, the OOG opinion finds no legal basis for many aspects of MPD treatment of public requests for BWC video:
- As to fees charged, the OOG finds the fees charged for redacted video to be unlawful (never published as rules, as required) and calls for a public price list and lower charges through less blurring and use of updated technology that may even be available in D.C. government.
- As to officers, the OOG points to federal court decisions rejecting the MPD theory of privacy for police work in public and calls for ending routine blurring of officer details such as face or badge captured on video.
- As to locations, the OOG dismisses the police policy of blanket redaction of house numbers and business addresses captured on video, finding no protection in the law for business information displayed in public and protection for house numbers only where linked to criminal investigation.
- As to car tags, the OOG acknowledges license plates are individual information but concludes redacting them is unneeded since other laws prohibit D.C. government from releasing information linking a tag to its licensee. That is, letting a tag go unredacted is harmless and MPD policy should stop incurring the time and cost of redaction.
- Finally, as to bystanders captured on video of public situations, the OOG finds their privacy not protected and redaction thus generally incorrect, allowed only for those who have some connection to a crime.
OOG opinions do not include a response from the agency. The November 5 opinion says the police department “should adopt” the recommendations but sets no deadline. It was sent to the general counsel of MPD whose office handles all BWC video requests under FOIA. Policy could change Monday morning if the agency chooses.
Under D.C. law, the OOG authority on FOIA matters extends only to issuing “advisory” opinions. This is unlike another part of the law that assigns the Office to enforce the Open Meetings Act with authority (that it has actually used) to sue for court enforcement if a public body does not follow advice in an OOG opinion. No law assigns FOIA enforcement and the Coalition has advocated for years for clearer lines of authority.
The OOG sent its opinion also to the Mayor’s Office of Legal Counsel (MOLC). That unit decides appeals when requesters seek review of agency FOIA decisions that seem incorrect, including delay or misuse of exemptions such as the privacy protections at issue with BWC video release. The MOLC can in future decisions adopt the OOG reading of FOIA law and on its own authority require MPD to release video with less redaction. The Coalition will advocate for D.C. Council oversight if needed to assure this happens.