Troubling legislation in four states would seriously undermine the public’s right to know and ability to hold government officials accountable.
Two of the bills — in Indiana and New Jersey — would restrict access to police body camera footage. Legislation in Florida would make it more difficult for citizens and the press to challenge improper government secrecy. And Massachusetts lawmakers are set to vote on a measure that, while aimed at improving the state’s public records law, could do the opposite.
Open government groups have raised concerns about each of the proposals.
Indiana: Police video recordings
The Indiana House of Representatives on Tuesday passed a bill that would impose numerous roadblocks on journalists and others who want to obtain police body camera and dash camera videos.
Police already have wide discretion to deny release of such recordings — decisions that can be difficult if not possible to challenge, according to the Hoosier State Press Association.
Under the legislation, House Bill 1019, only two classes of people would be entitled to inspect police video recordings: (1) those depicted in the videos, and (2) when a video shows the interior of a property, the owner of that property. Neither would be allowed to make copies of the recordings, but rather would only have a right to view them.
Anyone else, including reporters, would have to file a lawsuit to obtain a police video recording. Requesters would have to show that disclosure is in the public interest, does not create “significant risk of substantial harm to any person or to the general public,” and will not prejudice civil or criminal proceedings.
If a court orders release of a recording, police would be required to obscure a litany of depictions, such as acts of severe violence, anyone who is under 18 years of age, and crime victims and witnesses.
Requesters who prevail would not be entitled to get their attorney’s fees reimbursed.
The bill could also hamper newsgathering by requiring record requesters to know particular details of every video being requested. Requesters would have to provide the date and time of the activity that was recorded, where that activity occurred, and the name of at least one person who was “directly involved” in the activity but not in a law enforcement capacity.
The Hoosier State Press Association, Indiana Broadcasters Association and Radio Television Digital News Association are opposed to the legislation.
It now goes before the state Senate.
New Jersey: Police body camera footage, 911 records
Similarly, a New Jersey legislator has introduced a bill that would entirely exempt release of police body camera footage from the state’s public records law, along with audio recordings and transcripts of 911 calls.
The bill’s author, state Sen. Paul Sarlo, has said he might amend the legislation to allow for disclosure when police are involved in altercations.
Sarlo represents several municipalities that are being sued by the press for access to records about a 2014 incident in which police shot and killed a 23-year-old black man.
Florida: Reimbursement of attorney’s fees
A Florida bill would make it more difficult for the public and press to enforce the state’s public records law.
The legislation “would remove the requirement that government officials who intentionally violate the state’s public records law pay attorney’s fees when citizens take them to court,” according to the Tampa Bay Times.
Instead, the bill would make reimbursement discretionary, letting judges decide when plaintiffs who prevail in public-records lawsuits should have their attorney’s fees covered.
Many states have cost-shifting provisions similar to Florida’s current version, which often are the only way plaintiffs can afford to go to court.
The legislation advanced Tuesday in a state Senate committee; a state House of Representatives committee already signed off on a companion bill.
Massachusetts: Public records law reform needs reform
The Massachusetts Senate is expected to vote within the next few weeks on legislation aimed at improving the state’s public records law, but the proposal has numerous problems, according to Danielle McLean, president of SPJ New England and a member of SPJ’s national Freedom of Information Committee.
The measure, along with a companion House bill that passed late last year, seeks to limit some fees assessed to record requesters and provides for the possibility that plaintiffs who prevail in public-records lawsuits can have their legal expenses reimbursed. But as McLean points out, the legislation has serious problems:
- It welcomes delays. The legislation would allow the government to wait more than two months to respond to record requests. Currently, officials are supposed to respond within 10 days, but the bill would expand that deadline to 60 days for state government and 75 days for local governments.
- It restricts enforcement. The bill would require that public-records lawsuits be filed within 30 days of a denial being issued, a fairly narrow window to appeal. The legislation also does not mandate that plaintiffs who prevail will get their legal fees reimbursed; that decision would instead be up to a judge.
- It fails to address gaping holes. The bill also does nothing to make the public records law apply to the governor, state Legislature or state court system, although it does authorize a study to explore that possibility.
McLean and other freedom of information advocates held a rally last week on the steps of the Massachusetts State House in Boston, calling on senators to amend the law so it requires faster responses to public records requests, provides stronger enforcement mechanisms and reduces fees charged to requesters.
Approximately 25 to 30 people participated in the rally, including journalists, activists and college students.
“During the rally, we had some awesome dialogue, made a lot of noise, and gained some good momentum for the cause,” McLean said.
Jonathan Anderson is chair of the Society’s Freedom of Information Committee.