Facts and Procedural History:

Joe Augustine, on behalf of KSTP-TV, asked for an advisory opinion regarding his right to obtain copies of data from the City of Minneapolis (“the City”) under Minnesota Statutes, Chapter 13 (Data Practices Act). The City submitted comments in response to Augustine’s request.

A summary of the facts is as follows:

Augustine submitted a data request to the City for a copy of body camera data that was submitted as evidence in court. As part of his advisory opinion request, Augustine provided a copy of the “Court’s Order, which documents that the body camera data was submitted, accepted, and relied on by the Court as evidence in the [criminal] proceeding.”

The City’s response to Augustine’s data request stated:

This request is denied under MN statute [sic] 13.825. The BWC recording is classified as private data associated with the subject(s) seen and heard in the video. The data subject(s) of the video requested have not provided authorization for us to release the video to you, as is required by law and our own City policy. You may be requesting the video because you believe it was used in an exhibit in court, which is considered public data under statute 13.82. However, Minneapolis was not the prosecuting agency in this case and did not enter the video as an exhibit in court. The prosecuting agency is responsible for submitting court exhibits, and you must contact that agency to receive an exact copy of the exhibits.

Issue:

Discussion:

The Data Practices Act classifies all government data as public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)

Minnesota Statutes, section 13.825 classifies “portable recording system data” – audio or video data collected by a portable recording system worn by a peace officer (commonly referred to as body camera data) – as private or nonpublic, with exceptions. Minnesota Statutes, section 13.825, subdivision 2(a)(3) states, “portable recording system data that are active criminal investigative data are governed by section 13.82, subdivision 7.”

Minnesota Statutes, section 13.82, subdivision 7, classifies active criminal investigative data collected or created to prepare a case against a person for a crime or offense, “for which the agency has primary investigative responsibility,” as confidential or protected nonpublic. Section 13.82, subd. 7 also states, “[a]ny investigative data presented as evidence in court shall be public.”

In its comments, the City provided several arguments to support its decision to deny access to the requested body camera data. The City stated, it “is not required to meet with the County Attorney to create new data. ‘Government data’ means all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use. The data submitted into evidence by the prosecuting county attorney does not constitute ‘government data’ of the City.” The Commissioner disagrees.

Section 13.82 applies to law enforcement agencies. In Advisory Opinion 01-079, the Commissioner interpreted the definition of a “law enforcement agency” to include county attorneys for purposes of section 13.82. However, the Minnesota Attorney General’s Office disagreed with the Commissioner’s interpretation in a February 12, 2002, letter, noting that the language and legislative history of section 13.82 made clear that prosecuting authorities were not included as law enforcement agencies for the purposes of this section. As a result, law enforcement agencies, rather than prosecuting authorities, are obligated to respond and provide access to data classified by section 13.82.

The City also noted that it “has no knowledge of whether or how any data was redacted, enhanced, stabilized, or otherwise prepared for use as evidence in trial.” The City must have procedures to insure prompt and appropriate access to data (see Minnesota Statutes, section 13.03, subdivision 3). Thus, it is incumbent on the City to determine which data are responsive to a data request. One way the City can accomplish this is to consult with the County Attorney to determine which part of the City’s investigative record the County Attorney’s Office has submitted as evidence in court.

The City also argued that section 13.82, subdivision 7 is applicable to active investigative data, and as the criminal matter in which the body camera data at issue was presented as evidence in court has now been dismissed, the investigation is now inactive and the public body camera data are classified as private pursuant to section 13.825. The Commissioner disagrees.

Section 13.825, subd. 2(a)(3) indicates that body camera data are “governed by section 13.82, subdivision 7” while the data are part of an active criminal investigation. Additionally, section 13.82, subd. 7 contains a trigger establishing that “[a]ny investigative data presented in court shall be public.”

Here, the City was maintaining the body camera data at issue as active criminal investigative data. While the criminal investigation was still active, and governed by section 13.82, subd. 7, prosecutors presented portions of the body camera data as evidence in court as part of a criminal prosecution. As a result, the portions of the body camera data presented as evidence in court became and remain public data. Any remaining body camera data that were not presented as evidence would revert to the applicable classifications governed under section 13.825 when the criminal investigation became inactive.

This analysis is also supported by the language in Minnesota Statutes, section 13.03, subdivision 4(e):

To the extent that judicial branch data are disseminated to government entities by the judicial branch, the data disseminated shall have the same level of accessibility at the government entity receiving them as they had at the judicial branch entity providing them. If the data have a specific classification in state statute or federal law, the government entity must maintain the data according to the specific classification.

Additionally, section 13.03, subdivision 12 provides, “[p]leadings, as defined by court rule, served by or on a government entity, are public data to the same extent that the data would be public if filed with the court.”

Both of these provisions, along with the public trigger for active criminal investigative data presented as evidence in court pursuant to section 13.82, subd. 7, reflect the Legislature’s intent for judicial branch data, or data presented in court, to have the same level of accessibility at government entities as the data would possess at the judicial branch.

The Commissioner notes that the Legislature enacted section 13.825 in 2016 and has not substantially changed its provisions since that time. The Commissioner is aware that in the intervening years, both members of the public and law enforcement agencies have identified several areas where the requirements could be clarified. This opinion highlights one such area. The Commissioner encourages the Legislature to review the provisions of section 13.825 and in particular its interaction with other provisions governing law enforcement data, to determine whether it best reflects the Legislature’s intent with regard to the protection of and access to this type of data.

Opinion:

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

The City of Minneapolis did not properly respond to a request for body camera data that was presented as evidence in court.

Signed:

Alice Roberts-Davis
Commissioner

June 17, 2022