By Imani Jaafar and Ryan Patrick
Body worn camera (BWC) video has become a prominent feature of our work in both civilian oversight and law enforcement auditing. Just five years ago, we couldn’t see police interactions and had to piece together events using police reports, GPS logs, occasional squad car or cell phone recordings, witness statements, and whatever else we could find. Undoubtedly, video offers a clearer picture of what happens when law enforcement interacts with the public on the streets of Minneapolis.
Seeing officers interact with people from start to finish provides a completely different perspective from what we could previously only read or hear about. It is difficult to repeatedly watch people suffer some of the worst moments of their lives while officers navigate on the spot decision-making to various degrees of success. However, studying BWC footage allows for an informed discussion about how to improve policing and how we approach public safety not only as municipalities but also as a nation trying to chart a course for a more equitable approach to public safety.
When reviewing police conduct, we often watch videos several times, slowed down, looking for every relevant detail to understand what actually happened during an interaction. We are often required to do this work behind closed doors, with significant limitations on what we can share and how it truly shapes our work.
In this time when the public is crying out for transparency in policing, Minnesota law shields most body camera recordings from public release. Further, the Minnesota Government Data Practices Act (MGDPA), specifically section 13.43 Personnel Data, prevents the release of the vast majority of police compliant data. Even if the effects were unintentional, the MGDPA significantly limits what can be shared publicly about police interactions, making conversations about reform more difficult. In this article, we will discuss some of the key areas that are impacted by the Data Practices Act and the challenges it poses to civilian oversight of police.
Body Worn Camera
The proliferation of body worn cameras triggered a significant change to the MGDPA. Prior to 2016, the MGDPA was relatively permissive when it came to the release of videos created by law enforcement agencies which, at that point, primarily consisted of squad camera recordings. It became immediately apparent to larger law enforcement agencies that when body cameras turn on, the staggering amount of data they create could cause cascading issues when paired with retention schedules, storage costs, and public record requests.
At the same time, privacy advocates recognized that body camera recordings created a massive repository of sensitive government data on individuals unlike squad recordings, as body cameras reach far beyond the hood or backseat of the car. Those interests aligned and advocates and law enforcement agencies pushed to change the MGDPA to limit the release of data created by body cameras or “portable recording systems.” Advocates for police accountability argued against this, noting that body cameras were supposed to increase transparency for the public, but the proponents of section 13.825 succeeded and it became law.
Body worn camera recordings are now considered private data on individuals or nonpublic data with several notable exceptions. For example, private data on an individual is releasable to the person recorded, as that individual is the subject of the data. Additionally (and perhaps of more interest to the general public), when the video captures the discharge of a firearm or force that results in substantial bodily harm, the video may be considered public.
While these exceptions may appear straightforward, the nature of the recordings presents no shortage of challenges. Recordings often capture multiple people, and each has a privacy interest in the data. Those not requesting the video must be redacted out of it unless they consent to the full release of the recording. Videos containing significant uses of force leading to bodily harm or firearm discharges, while presumptively public, may be classified as nonpublic for other reasons, primarily when they are part of active criminal or personnel investigations. While these exemptions to the general categorization of videos as non-public were meant to provide some measure of transparency, in reality, they do not give the public general access to a significant number of recordings.
Police Misconduct Investigations
BWC recordings are one part of a police misconduct investigation. Investigators spend hours poring over BWC recordings and any other video they can locate, police reports, GPS logs, electronic communications, and other information provided by the complainant. Investigators also interview everyone involved; civilians are voluntary participants, but officers are compelled to appear. The resulting investigative summary is contained in a file with all of the evidence that was used by the investigator to write the report. The report contains no recommendations and is a neutral, fact-based document analyzing alleged violations.
The entire file is then handed to a panel made up of civilians appointed by the City Council and Mayor as well as sworn leadership from the Minneapolis Police Department to discuss the merits. Despite this multistep process with many pieces of evidence and documentation produced along the way, most of the cases and the findings that accompany them will always be considered nonpublic data with the accused officer the subject of the data under the MGDPA.1 The privacy surrounding this work has bred significant doubt regarding the Minneapolis police oversight system despite the fact that it is layered with civilians who have both civil rights backgrounds as well as experience in a broad variety of areas including social work and legal services for the most vulnerable residents in the community.
Under MGDPA 13.43, complainants are not entitled to any significant details of a case other than its status (open or closed) unless final discipline has been imposed. Complainants and the general public can only get details on a case if there was discipline and that discipline is final; grievance and arbitration procedures for officers need to be fully completed before files can be released. When body camera recordings are a part of the case file, they remain nonpublic throughout.
Discipline cases take a significant amount of time to resolve. It can take years to conduct a full investigation on a case, have the case go through a merit determination with a panel of civilians and sworn leadership, then hold required due process hearings for the officer, and allow the chief of police to make a final disciplinary determination. Not to mention, the case will likely be followed by a grievance and arbitration process, and the Office of Police Conduct Review sometimes completes cases only to see an arbitrator give officers their jobs back with backpay after a yearlong absence.2 But so long as discipline remains at the end of the process, any member of the public can request and receive the evidence supporting that discipline, the only time in Minnesota that such level of personnel data is accessible.
Officer Complaint History
The MGDPA also dictates what an officer’s complaint history looks like, which is an important piece of information for lawyers working in the criminal justice system. In order to provide the public with the information that is legally permitted under the MGDPA on Minneapolis police complaints, we launched a public data portal where a person can search for an officer and see an instant, current complaint history.3
Since its launch, people from all over the country have used the data portal, and it experiences particularly significant traffic after every critical incident in Minneapolis. The MGDPA allows the portal to display the number of complaints filed against an officer, the date of the complaint, and each complaint’s status (open, closed, closed with discipline). If final discipline was imposed, the allegations are noted. The portal also has statistical information about police misconduct cases handled each year, including what types of complaints come to the office and how they are resolved. The MGDPA’s limitations encouraged us to create this tool because the lack of accessible information generally leads to loss of public trust and speculation about police misconduct cases.
During a time with such heightened tensions, the lack of transparency causes significant frustration and the Minneapolis Civil Rights Department is regularly contacted by individuals who just want more information than the MGDPA allows practitioners to provide. Some believe that hundreds of police misconduct complaints contain uses of force with bodily injuries that would require an officer to be fired. In reality, civilian oversight practitioners handle far more complaints about officers driving poorly or having attitude issues than use of force incidents.
Many of the complaints the Office of Police Conduct Review receives can be remediated by requiring the officer to sit with a supervisor to discuss the incident while watching footage or by going back to training. Cases may be unsupported by any evidence or allegations directly contradicted by evidence after a full investigation, but that information is nonpublic. The contents of all of these files cannot be shared with the public because the officer has not been disciplined. This leads to dozens of closed cases per year with noteworthy outcomes but no publicly available information, not even to the person who filed the original complaint.
Complainant’s Personal Information
Conversely, although complaint investigation data enjoys strong protections under the MGDPA, complainants’ information does not. Once an individual files a complaint, his or her address, phone number, and any contact information on the form becomes public information. All data not specifically described in the MGDPA is considered public and nothing in the act shields information about those who file police complaints.
Investigators must rely on this information to get statements from complainants and send documents to them, especially items they are not comfortable receiving over email. Some complainants do not have regular access to a computer, internet, or phone so receiving documents in the mail is the only way to communicate. However, it can be difficult to explain that the MGDPA makes an individual’s personal information public while prohibiting that same person from accessing any information on the complaint he or she filed other than whether the complaint is open or closed.
Civilian oversight practitioners often struggle with frustration over not being able to share the progress of a case or outcomes that may occur during the life of a case, such as a positive policing policy change or process improvement specifically resulting from the complainant’s case. Dissatisfaction occurs on all sides by complainants, the public, sworn personnel, and civilian oversight practitioners at the inability to have open and meaningful conversation about police misconduct cases to help move important work on improving community policing.
Summary
Police accountability is on the minds of many Minnesotans as discussions about the future of public safety continue. Many calls for change demand transparency, but that is not up to municipalities to decide as state law is in control. In Minnesota, any change to existing oversight models will likely lead to the same issues with the MGDPA, which applies to all government employees, not just police officers, making it harder to change. Negotiating any changes will be a difficult dance between privacy advocates, government employees, and community activists. The future of transparency of police accountability rests with the MGDPA, and, with Minneapolis on a national stage, many will be watching to see whether this critical law will stand in its current form against the weight of demands for policing reform through access to more information on police misconduct.
Imani Jaafar is currently the director of the Office of Police Conduct Review in the Minneapolis Department of Civil Rights. She is a certified practitioner of oversight (CPO) who provides oversight for investigations into allegations of police misconduct and authors research and study reports focused on improving policing. She also serves as an adjunct professor of law at the University of Minnesota.
Ryan Patrick is the former legal analyst for the Office of Police Conduct Review in the Minneapolis Department of Civil Rights and currently serves as interim director of Internal Audit for the City of Minneapolis. Mr. Patrick is a certified internal auditor (CIA), a certified practitioner of oversight (CPO), and a member of the Minnesota bar since 2012.
Notes
1 Minn. Stat. Section 13.43.
2 https://www.mprnews.org/story/2016/10/18/minneapolis-police-officer-reinstated-after-firing; https://www.startribune.com/minneapolis-police-officer-fired-for-decorating-offensive-christmas-tree-gets-job-back/572098402/; https://www.mprnews.org/story/2020/07/09/half-of-fired-minnesota-police-officers-get-their-jobs-back-through-arbitration
3 https://www.minneapolismn.gov/government/government-data/datasource/office-of-police-conduct-review-dashboard/; https://www.minneapolismn.gov/resident-services/public-safety/complaints-and-compliments/police-officer-complaint-process/officer-complaint-history-search/