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Vermont Supreme Court hears arguments on charging to view police body cams



VtDigger 
Thursday, April 18, 2019

The Vermont Supreme Court will decide if a Burlington man should be able to view, free of charge, police body camera footage from the arrest of a minor.

It’s a case that raises the issue of the public’s ability to view a record at no expense, or whether the process involved in making redactions to the requested body cam footage requires creating a copy, which a public agency is allowed by law to charge for.

The legal dispute has attracted the attention of several groups and organizations who have filed amicus, or friend of the court, briefs outlining their concerns that charging for what they term an inspection of a record would create a roadblock to public accountability and transparency.

The high court heard arguments Wednesday from an attorney from the Vermont chapter of the American Civil Liberties Union that Reed Doyle of Burlington simply wants to “inspect” the body camera footage, and therefore should not be charged by the Burlington Police Department.

“Inspection of public information without the burden of fees is necessary for transparency and accountability,” Jay Diaz, a lawyer for the ACLU of Vermont and representing Doyle, told the five justices of the state’s highest court.

The case stems from an incident on July 17, 2017, near Burlington’s Roosevelt Park. That’s when Doyle was walking his dog and saw police officers in a confrontation with a group of youths.

Before Doyle arrived, one youth had been arrested for disorderly conduct, and others were arguing with police about that arrest.

Doyle says he heard officers threaten to use pepper spray on those youth, and also saw an officer push a boy who was backing away. When the boy protested being pushed, he was arrested for disorderly conduct.

Doyle wanted to view the officer’s body cam footage to determine exactly what happened, he said, and if it showed any excessive force was used by Burlington police against children of color.

Diaz, the ACLU attorney, disputed the city of Burlington’s contention that redacting the video, including to conceal innocent third parties and protect minors, leads to the creation of a copy.

“Redacting information is actually just the blocking out or the hiding of certain information that’s in an existing public record,” Diaz told the high court.

“That’s not possible when you’re talking about video, you need to create a new compilation,” Justice Harold Eaton said.

“Whether it’s video or not, there is no distinction,” Diaz replied.

Diaz said Doyle was not seeking a copy, only to “inspect” or view, the body cam footage, even if it’s redacted.

“If a request for a copy is what takes place, then an agency may charge staff time fees,” the attorney said. “But where a request does not seek a copy … that record must be available to them without cost.”

“So for you it’s all about how it’s examined — physically how it’s examined — not what happens before to allow it to be examined. We ignore that?” Justice Karen Carroll asked Diaz.

“That’s correct,” Diaz replied, adding, “We are wary of what the government will do if it can hide certain records that might be embarrassing to it with exorbitant fees. We want to allow every Vermonter to access those records and not allow it to depend if they can afford it.”

A lawyer for the city of Burlington countered the municipality’s needed redactions to the video did lead to the creation of a copy.

Therefore, under the law, the city can charge Doyle for the making of that copy, he said, including the redactions that must be made, which carry a cost of hundreds of dollars.

“This case is emblematic of the balancing of privacy interest and public transparency that public agencies face every day,” attorney Justin St. James, representing the city of Burlington, told the high court Wednesday.

The video requires redactions because it contains images of minors, St. James said, some who were never charged with a crime and others who were sent to a court diversion program.

As a result, he added, the city needed to make a copy of the body cam footage to make those redactions.

“What really is at issue here, is it’s a verbiage issue,” St. James said. “At the most elemental issue of public records law, the moment that redactions are applied to original public records, those records cease to be an original and must be treated as a copy.”

The city’s attorney then added, “They are requesting records for which copies must be made, redactions must be applied, and then passed along.”

“How is this case different then someone taking a stack a records in response to a request and going through the paper records to see which ones are actually subject to inspection and which ones are not?” Justice Eaton asked.

“Isn’t that essentially what they’re doing with the body cam footage, is they’re going through and saying, ‘Well, all right, you can see this part, but you can’t see this part’” Eaton added. “How is it different than a stack of paper?”

“This is a treated as a request for a copy because we knew that there was confidential exempt information,” St. James responded.

Justice Marilyn Skoglund then wanted to know what would happen if she wanted to see an officer’s body cam footage.

“Can I just show up that the police station and say, ‘I’d like to see Sgt. Brown’s video cam for this day and sit there and watch it?’” she asked. “Can I do that?”

“I’m not going to say you can’t ask,” St. James replied.

However, he said, before the video is viewed it would need to be reviewed to determine if information on the footage is exempt under the Vermont Public Records Act.

Brandon del Pozo, Burlington’s police chief, has said that his department’s decision regarding the body cam footage is about striking a balance between protecting people’s privacy and government transparency.

He has said the ACLU model body camera policy calls for such footage to be redacted to protect privacy. Since that requires making a copy of the video to make redactions, the chief said Doyle’s request allows for the department to recoup that cost under the public records act.

Del Pozo added that an internal investigation of the incident did take place and it was determined the officers acted within the department’s “guidelines.”

Doyle brought a lawsuit in Washington County Superior Court in Montpelier seeking to require the city to make the officer’s body cam footage available at no charge.

Judge Mary Miles Teachout in August denied Doyle’s claim, ruling, “there is no overarching distinction in the PRA (public records act) between seeking a copy of a record and seeking to inspect a record.”

The ACLU, in its arguments to the high court, points to a 2011 decision by Judge Geoffrey Crawford, then sitting in Washington Superior Court, in a public records case.

In that matter, according to Crawford’s ruling, “the statute provides no authority for an agency to impose a charge for inspection of documents.”

Secretary of State Jim Condos submitted a filing in Doyle’s case, in support of the ability to inspect a public record free of charge.

“I strongly believe that government records are public records,” Condos said outside the courthouse Wednesday, adding, “It is unfair to force, whether it be the media or a public citizen, to have to pay an exorbitant fee to view those records, to inspect those records.”

Several other organizations have signed onto amicus briefs in support of Doyle and the ACLU of Vermont. They include the Conservation Law Foundation, the Vermont Natural Resources Council, The Vermont Journalism Trust, Vermont Press Association, and the New England First Amendment Coalition.

The Vermont Journalism Trust is VTDigger’s parent organization.

Michael Donoghue, a former Burlington Free Press reporter, represented the Vermont Press Association and the New England First Amendment Coalition, at the hearing Wednesday.

Speaking after the proceeding, Donoghue that he found “interesting” that the Burlington Police Department wanted to charge Doyle fees in this case, but in another recent situation released body cam footage without charging anyone.

“The other day the Burlington Police Department issued a video involving some Secret Service agents, they redacted certain parts of it and never charged anybody and circulated it among the media,” Donoghue said.

“I’m not sure what the difference is between those two cases,” he added. “Why do you want to charge in this case, but on the other hand did not charge anybody, as far as I know, in the Secret Service case.”

In the Secret Service case a Burlington teenager alleged that he had been the subject of racial profiling and forcibly frisked by federal agents. The Burlington Police Department released footage of their interactions with the teen and Secret Service agents after they arrived on scene.

“We’re getting redaction technologies that are getting faster and cheaper,” del Pozo said Wednesday, “and from the very start of this, I’ve said the ideal situation is ease of transparency and accountability through fast redactions technologies, and ones that don’t exact such a cost on the taxpayer.”

The police chief added, “We’re going in that direction, that’s a separate matter apart from the principle of whether you need to make a copy of something in order to inspect it.”

Doyle said after the hearing Wednesday that he was hopeful the Vermont Supreme Court would allow him to view the body cam footage so he can answer his lingering questions about the incident he witnessed nearly two years ago.

“The irony behind all of this to me is if I just would have taken my damn phone out and recorded it, I’d have it,” Doyle added.

The Vermont Supreme Court is expected to issue a ruling in the coming months.