Facts and Procedural History:

E. Joseph Newton, General Counsel for the Minnesota Department of Public Safety, asked for an advisory opinion about the classification of inactive criminal investigative data about and related to an officer-involved fatal shooting of a child (“the child”) that the Bureau of Criminal Apprehension (BCA) maintains, pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13. The Commissioner invited Paul Dworak, attorney for the data subject(s), to submit comments in response to Mr. Newton’s request, which he did.

Mr. Newton wrote:

On July 13, 2018, the BCA assumed primary investigative responsibility for the investigation of an officer-involved shooting [of the child] that occurred in the city of Chanhassen.

During the active criminal investigation, the criminal investigative data were classified as confidential or protected nonpublic data under Minn. Stat. § 13.82, subd. 7. The criminal investigation became inactive on October 11, 2018 when the Carver County Attorney declined to charge the deputies involved in the shooting.

The nearly 1200 pages of data are primarily comprised of (1) incident and service call reports from the July 13, 2018 incident, (2) narratives of peace officers who were on scene, (3) interviews of the child’s family members and a friend, (4) canvass interviews of neighbors within the vicinity, (5) previous incident and service call reports to the child’s residences, (6) search warrants, (7) Google searches by the child and texts between the child and parents, (8) BCA laboratory reports of examinations of physical evidence, (9) dash cam video, and (10) audio and video data collected by portable recording systems.

Mr. Newton also wrote:

These data are “peace officer records on children” because they constitute a “record” and involve a “child.” For instance, there are incident and service call reports with narratives that document the July 13, 2018 incident when the child was or may have been delinquent or may have been engaged in criminal acts. The incident stemmed from allegedly assaultive behavior and peace officers were responding to address a disturbance caused by the child. These data also include interviews of family members, neighbors, and a friend that contain detailed information about the July 13, 2018 incident and/or impressions about the child who was or may have been delinquent or may have been engaged in criminal acts. 

Mr. Newton also asked about data classified under Minnesota Statutes, section 13.825:

This specific statute strictly addresses data that document the “discharge of a firearm by a peace officer in the course of duty” rather than data that document the entire “incident.” However, the portable recording systems data at issue span the scope of the incident that started with a 911 call and lasted subsequent to the discharge of a firearm by a peace officer in the course of duty. For instance, there are data of peace officers responding to the scene before; during, and after the discharge of a firearm (when officers arrived to assist with the investigation) that do not document any portion of the aforementioned discharge.

Issues:

Discussion:

Issue 1: Pursuant to Minnesota Statutes, Chapter 13 (Data Practices Act) what is the classification of inactive criminal investigative data maintained by the Bureau of Criminal Apprehension that are “peace officer records of children”?

Minnesota Statutes, section 260B.171, subdivision 5, classifies as private “peace officers’ records of children who are or may be delinquent or who may be engaged in criminal acts.” Peace officer records of children are not confidential, even when an investigation is active.

Private data are data on individuals; “individual” means a living human being. (See Minnesota Statues, section 13.02, subdivisions 5 and 9, and Minnesota Rules part 1205.0200, subpart 8.)

Under Minnesota Statutes, section 13.10, when an individual data subject dies, data that were classified as private or confidential before death are reclassified as “private data on decedents” or “confidential data on decedents”. 

Minnesota Statutes, section 13.82, subdivision 7, classifies inactive criminal investigative data as public, with exceptions:

Inactive investigative data are public unless the release of the data would jeopardize another ongoing investigation or would reveal the identity of individuals protected under subdivision 17. Images and recordings, including photographs, video, and audio records, which are part of inactive investigative files and which are clearly offensive to common sensibilities are classified as private or nonpublic data … .

According to Mr. Newton, his item (1), “Incident and service call reports from the July 13, 2018 incident” include “narratives that document the July 13, 2018 incident when the child was or may have been delinquent or may have been engaged in criminal acts.”

Data in the reports that were in existence before the child died and were classified as private peace officer records of a child under section 260B.171, subdivision 5, are now private data on decedents per section 13.10. Data created after the death cannot be private data on individuals, and therefore cannot be classified under section 260B.171; they also cannot be classified under section 13.10. 

In his comments, Mr. Dworak asserted that all of the data at issue are private. He referenced language in section 13.10, subdivision 3, which states, “[n]onpublic data concerning a decedent, created or collected after death, are accessible by the representative of the decedent,” in support of his position that all of the data at issue are private. However, that provision does not classify data, instead, it clarifies that data that are nonpublic (because they were created after the data subject dies) are accessible to the decedent’s representative.  

According to Mr. Newton, data BCA collected or created as part of its investigation into the officers’ shooting are inactive criminal investigative data under section 13.82, subdivision 7. Those data are described in items (2) through (8) (except for (5)) that were either government data created after the death as part of the investigation, or data that were not classified upon their creation. For example, although the Google searches by the child and texts between the child and parents were created before the death, they were not government data until they were collected by BCA as part of the active criminal investigation. Because they were not government data when the child was alive, they could not have been classified under section 260B.171. (See Minnesota Statutes, section 13.02, subdivision 7.)

As noted above, inactive criminal investigative data are public unless the data reveal the identity of individuals protected under subdivision 17, or are images and recordings, including photographs, video, and audio, which are clearly offensive to common sensibilities under subdivision 7. 

Upon review by the Commissioner, some of the data in item (5), “previous incident and service call reports to the child’s residences” are classified as private under either section 260B.171 or section 13.10. Data in the reports that are not classified by either of those statutes are either presumptively public or specifically classified as public under section 13.82, unless they are private per subdivisions 7 and/or 17.

Item (9), “dash cam video” on the child before the child died were classified as private peace officers’ records of a child under section 260B.171, and are now private data on decedents under section 13.10. Otherwise, the data are classified under section 13.82, as discussed above.

BCA must examine the data elements in items (1) – (9) to determine which of the above statutes classifies the data. Item (10) is discussed in Issue 2.

Issue 2: Pursuant to Minnesota Statutes, section 13.825, which data are classified as public: data that document the “discharge of a firearm by a peace officer in the course of duty,” or all data that document the entire “incident” (before, during, and after the discharge of a firearm)?

Minnesota Statutes, section 13.825 classifies “portable recording system data," which are audio or video data collected by a portable recording system (commonly referred to as body camera data) as private, with exceptions. Subdivision 2(a)(1) states:

[D]ata 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[.]

Mr. Newton asked the Commissioner about the scope of data that document the discharge of a firearm, i.e., whether it means data that document only the discharge (the firing) of a firearm, or all audio/video data “that document the entire ‘incident’ (before, during, and after the discharge of a firearm)”.

The Legislature classified a portion of body camera data created by law enforcement agencies, but provided no definitions or guidelines in the statute as to what constitutes the data that document the weapon discharge. Absent clarification from the Legislature, law enforcement agencies have discretion to interpret the scope of the plain meaning of “data that document the discharge of a firearm”. Accordingly, law enforcement agencies will have to make those determinations in any given situation. 

However, body camera data on the child before the child died were classified as private peace officers’ records of a child under section 260B.171, and are now private data on decedents under section 13.10. Body camera data about the child after death are public or private under section 13.825. Furthermore, if BCA determines that any otherwise public portions of the body camera data are offensive to common sensibilities, it needs to protect the data per section 13.825, subdivision 2(b).

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:

1. Pursuant to Minnesota Statutes, Chapter 13 (Data Practices Act) the data maintained by the Bureau of Criminal Apprehension are classified under three statutes. As discussed above, some of the data are private under Minnesota Statutes, sections 260B.171 and 13.10. Data not classified by those sections are generally public under Minnesota Statutes, section 13.82. However, some of the data may be protected under subdivisions 7 or 17; if so, the data are private or nonpublic.
2. Pursuant to Minnesota Statutes, section 13.825, data that document the “discharge of a firearm by a peace officer in the course of duty,” are public. Law enforcement agencies must determine how much of the body camera data document the discharge of a firearm.

Signed:

Alice Roberts-Davis
Commissioner

April 4, 2019