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S.F. No. 498 - Police Body Cameras (Minnesota Laws 2016, Chapter 171)
 
Author: Senator Ron Latz
 
Prepared By:
 
Date: May 27, 2016



 

This bill classifies data collected by police body cameras (portable recording systems) and provides for the retention and destruction of the data.  Requirements governing the use of these systems, audits of the data, and vendor practices and liability are also included.

Section 1 amends arrest data that are public to include whether the law enforcement agency used a portable recording system.

Section 2 amends response or incident data that are public to include whether the agency used a portable recording system as part of the response.

Section 3 adds video and audio records to existing law that classifies photographs that are inactive investigative data as private or nonpublic if the data are clearly offensive to common sensibilities.

Section 4 amends current law authorizing law enforcement agencies to provide access to active investigative data under certain circumstances to include private or nonpublic portable recording system data.

Section 5 establishes a new section governing the use of portable recording systems and the classification of the data collected by those systems.

Subdivision 1 provides that this section applies to law enforcement agencies that maintain a portable recording system for use in investigations or in response to emergencies, incidents, and requests for service.  The terms “portable recording system,” “portable recording system data,” and “redact” are defined.

Subdivision 2 classifies data collected by a portable recording system as private data on individuals or nonpublic data, subject to the following:

  1. data that document the discharge of a firearm by a peace officer in the course of duty or the use of force by a peace officer that results in substantial bodily harm are public;
  2. data are public if the subjects requests that the data be accessible, except that, if practicable, data on a subject who is not a peace officer and does not consent must be redacted and data on an undercover peace officer must be redacted;
  3. portable recording system data that are active criminal investigative data are governed by the general law that applies to active criminal investigative data (data are confidential or protected nonpublic) and inactive criminal investigative data would be governed by this section;
  4. portable recording system data that are public personnel data that document the basis for disciplinary action against an employee would be public; and
  5. data that are not public under other provisions of the Data Practices Act retain that classification.

Paragraph (b) provides that a law enforcement agency may redact or withhold access to portions of data that are clearly offensive to common sensibilities.

Paragraph (c) provides that the Tennessen warning (notice that must be given to individuals when asked to provide private or confidential information) does not apply to the collection of portable recording system data.

Paragraph (d) establishes a procedure under which a person may bring an action in district court to authorize the disclosure of portable recording system data that are private or nonpublic or to challenge a determination to redact or withhold access because data are clearly offensive to common sensibilities.  This is based on current law that provides for disclosure of active investigative data.

Subdivision 3 contains the rules for retention and destruction of portable recording system data.

Paragraph (a) provides that data that are not criminal investigative data and not described in paragraph (b) must be maintained for at least 90 days and destroyed according to the agency’s record retention schedule.

Paragraph (b) requires data to be maintained for at least one year if the data document the discharge of a firearm by a peace officer in the course of duty, or the use of force by a peace officer that results in substantial bodily harm, or if a formal complaint is made against a peace officer related to the incident.

Paragraph (c) allows the subject of the data to submit a written request to a law enforcement agency to retain the recording beyond the applicable retention period for possible evidentiary or exculpatory use.

Paragraph (d) allows a government entity to retain a recording for as long as reasonably necessary for possible evidentiary or exculpatory use.

Subdivision 4 governs access by data subjects to portable recording system data.  The data subject would include the peace office who collected the data and any other individual or entity, including a peace officer, regardless of whether the officer is or can be identified by the recording, whose image or voice is documented in the data.  A subject of the data would have access to the data, including data on other individuals who are subjects of the recording.  If an individual requests a copy, data on individuals who do not consent to its release must be redacted.  The identity and activities of an on-duty peace officer may not be redacted unless the officer is undercover.

Subdivision 5 requires a law enforcement agency that uses a portable recording system to maintain specified information regarding the use of the system, which is public data.

Subdivision 6 provides that while on duty, a peace officer may use only a system that was issued and maintained by the officer’s agency in documenting the officer’s activities.

Subdivision 7 requires law enforcement agencies to comply with existing data practices standards in the operation of portable recording systems and maintaining the data.  Written procedures must be established that limit access to personnel with written authorization from the head of the law enforcement agency to obtain access for a legitimate law enforcement purpose.

Subdivision 8 provides that portable recording system data that are not public may be shared with other agencies only if they meet the standards for requesting access under subdivision 7.  A receiving agency must comply with all provisions governing the classification and maintenance of the data.  The data may not be shared unless explicitly authorized by law.

Subdivision 9 requires law enforcement agencies to maintain records showing the date and time portable recording system data are collected and the applicable classification of the data.  Law enforcement agencies must arrange for an independent biennial audit of the data to verify compliance with applicable law.  If the governing body with jurisdiction over the budget of the agency determines that it is not complying, it may order additional independent audits.  Results of the audit are public, except for data otherwise classified under law.  The governing body must review the results and if it determines that there is a pattern of substantial noncompliance, must order that operation of all portable recording systems be suspended.  An order of suspension may only be made following review of the results of the audit and applicable law and after providing the agency and members of the public an opportunity to respond.  A report summarizing the results of the audit must be provided to the governing body and to the Legislative Commission on Data Practices and Personal Data Privacy no later than 60 days after completion.

Subdivision 10 requires a law enforcement agency that obtains new surveillance that expands the type or scope of surveillance capability of a portable recording system to notify the Bureau of Criminal Apprehension.  Contents of the notice are specified.

Subdivision 11 contains provisions governing portable recording system vendors.  By providing specified services related to systems to a government entity, a vendor is subject to the requirements of law as if it were a government entity.  It must comply with Federal Bureau of Investigation security requirements if it stores data in the cloud.  Special damage and liability provisions are included if a vendor violates the law.

Subdivision 12 provides that in the case of a willful violation of this section a law enforcement agency is subject to exemplary damages of not less than twice the minimum, nor more than twice the maximum, allowable under the general law.

This section is effective August 1, 2016.  Data collected before the effective date must be destroyed, if required, no later than 15 days after this section becomes effective.

Section 6 contains portable recording system policy requirements.

Subdivision 1 includes a cross-reference to the definition of a “portable recording system.”

Subdivision 2 requires a law enforcement agency to provide an opportunity for public comment before it may purchase or implement a system.

Subdivision 3 contains requirements for the written policies.  Each law enforcement agency must establish and enforce a written policy governing the use of the systems.  In developing and adopting a policy, public comment and input is required as provided under subdivision 2.  The policy must be posted on the agency’s Web site.  Provisions that must be included in the written policy are specified.

This section would be effective August 1, 2016, provided that a law enforcement agency using a system on that date must adopt the policy no later than January 15, 2017.

Section 7 provides for comprehensive review of agency compliance with the requirements of this act by the Legislative Auditor.  The results would be submitted to the legislature no later than January 15, 2020.

 
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