UPDATE 1/18/19: MPD 1st District Commander Morgan Kane met with ANC6B Tuesday (15) and Larry Janezich blogged on the session for Capitol Hill Corner. He reports Kane said a total of seven officers were involved, two at the CVS where the man reported his encounter with the youths, and five members of a bike squad who heard a radio call and found the three young men a few blocks away. When the original complainant went home, all seven joined together talking with the youths. No wonder there was so much video! Kane also said parents were called after about eight minutes and the sidewalk scene continued until they arrived. The MPD FOIA Officer, Inspector Vendette Parker, was also at the meeting and explained, according to Janezich, "the expensive redactions [are] to protect identities of children and uninvolved parties passing by, and well as confidential radio communications picked up by the body cams as well as restrictions which protect juveniles. She said body cam videos are routinely viewed by those directly involved or their attorneys, but whether a video can be released to the public is ultimately in the hands of the MPD police chief." Janezich also reports that "ANC6B Chair Chander Jayraman announced that he had been in communication with CM Charles Allen, who asked for time to review the video and have a conversation with MPD. Allen can’t release the video, but he can provide comment and talk publicly about it."
UDATE 1/11/19: ANC commissioner Denise Krepp Tweeted that her requests to MPD have been denied and the offer of costly redacted video is apparently off the table.
She said "Last night, MPD said no fee waiver & no video. Please ask MPD to share redacted video w/ neighbors. TY." She attached an MPD communication to her on Thursday (10) at 5:44 that cited confidentiality of juvenile criminal records as the reason for denying her request for the video of the December 22 incident in which four MPD officers stopped and questioned three youths on Capitol Hill.
A news item with dueling quotes from an elected official and Mayor Muriel Bowser about public access to a Metropolitan Police Department (MPD) body-worn camera video raises a broader question about the redaction of the video in dispute. Paul Wagner (an active FOIA user in his own reporting) had the story on WTTG Fox 5, last Thursday (3).
K. Denise Rucker Krepp is an Advisory Neighborhood Commissioner on Capitol Hill. She asked (according to the news story) for a police briefing and airing of video from the body-worn cameras of four MPD officers. She saw it as part of her work linking the community and D.C. government, and in response to citizen concerns. She wanted to shed light on what happened when police stopped, frisked and questioned three young boys December 22.
The TV story cites a police report that a man told officers the three had threatened him with a knife and followed him into a CVS store. The sidewalk investigation went on for an hour with no parents present. A bystander alerted Rucker and shared cell phone video. Police found no knife and the man who made the initial complaint declined to press charges.
MPD treated the commissioner’s inquiry as a Freedom of Information Act request from any citizen. The agency sent Krepp a proposed bill including $5,267 for redaction (meaning blurring of details) of 229 minutes at $23 per minute. (Krepp published the document in a Tweet January 2.) The law allows advance payment requests where costs are expected to be large (over $250).
The bill could be less, or go away completely:
- First, the whopping bill reflects a great many redundant hours. The news story said the incident lasted an hour, so 229 minutes must include video from several officers’ cameras. One camera angle is probably enough to show what happened in such a simple interaction.
- Second, MPD can waive fees under the Freedom of Information Act if the request is in the public interest. Krepp, as an elected official, has requested a waiver and would seem to have a fair case.
Krepp in the news story questioned where the astonishing price came from? The invoice she got is from MPD and doesn’t identify the redaction company that will do the work. But as we blogged earlier, when the Open Government Coalition asked for data on BWC requests last year, MPD identified QueTel of Chantilly, Va., as having provided $97,695 in FOIA video services. This was 85 percent of the year’s total; CACI, Digital Evidence Group and InterMotion Media LLC were the other three vendors. So QueTel may be a likely source to do the redaction work on the video Krepp requested. The company is no mom-and-pop or storefront. Their website shows over 100 state, city, county and university police departments using its “software solutions for evidence management.” Still, it’s always a good question whether the government got a fair price.
Last, but most significant for both usability of the resulting video and cost of the work, is this key question about the hours of costly redaction (blurring details in video): what, exactly, is the contractor told to conceal?
In a document, certain personal data to redact are obvious, for example, Social Security numbers or email addresses. But what should be blurred in a slice-of-life video shot in the street that includes police and others involved, bystanders, vehicles parked and passing by, items held in the hand, computer screens that are in every police car, lettering and logos on clothing, and much more? The soundscape is diverse as well, with police and participant voices as they talk, traffic sounds, observers’ voices, police radio calls.
If a viewer can identify someone from any of these, is that a privacy invasion the law requires be avoided by redaction--or not? How much should we expect privacy in the street? Isn’t a bit less privacy justified, to keep faith with the public accountability purpose of the video? That is, for the public to see and understand what police are doing and saying on duty in public, isn’t release of more details “warranted” and who decides in each case, according to what rules?
The word "warranted" (or justified) matters because it’s the only helpful adjective discussing when privacy may be invaded in a key section of the D.C. Freedom of Information Act. The act mentions privacy twice briefly (and both are about discretion to withhold, not required withholding).
- First a law enforcement agency may withhold any investigative record (or segment) whose release would be “an unwarranted invasion of personal privacy.” D.C. Code 2-534 (a)(3)(C). The language signals some privacy may be lost where justified by other benefits.
- Second, for all other non-police records, privacy-protective withholding is allowed only if release would be a “clearly unwarranted” privacy invasion. D.C. Code 2-534 (a)(2) (emphases added).
Despite the law's direction to balance justifications for and against withholding, privacy is being privileged. In fact, MPD releases BWC videos (about 57 in fiscal year 2017, the latest year with full data*) redacted beyond recognition according to Coalition members who have seen examples—all faces, all voices, every car tag in sight, and more. (See, for example, the videos released to reporter Paul Wagner of DUI traffic stops—later released in full after Coalition legal pressure and reversal by the Attorney General Karl Racine, as they had been shown in court.)
Thus the agency appears to have decided that privacy generally trumps access and so release of video with reasonable details of participants and conversations is uncommon, not by law (as the mayor demanded in 2015) but by internal MPD policy . If true, this hidden decision rule helps explain the agency prediction of costly hours of work to blur so many details on the videos Krepp requested. Such redaction guidance is not in law or regulation; perhaps only in oral instructions to the contractor? The D.C. Open Government Coalition has a pending FOIA request for any relevant records of redaction guidance, instructions to contractor staff making these important decisions frame by frame watching screens in darkened rooms in Northern Virginia (or wherever).
This isn't what the public expected. Following months of debate in 2015, the public and the Coalition applauded the D.C. Council action voting body-worn camera funds together with mandatory public access to the video under the usual Freedom of Information Act procedures. That ground-breaking legislation was among the most open policies in the nation and promised a new day in police accountability. (In contrast, California police departments closed their footage for years, and the legislature there only opened some “critical incidents” for viewing a few weeks ago.) The MPD shouldn’t be turning back the clock by hidden redaction policies that block the public access the Council intended and the public expects.
*Note MPD is overdue in publishing the reports required by the law every six months on FOIA requests and other details of use of body-worn camera video. See D.C. Code 5-116.33. October 2017 is the latest available. Those for 2018 are in process, according to an MPD official. The available ones are posted on the MPD website here.