Open government advocates are wary of Wisconsin’s new police video editing law

Unfortunately, one of Wisconsin’s most prominent free speech advocates says: Folks, we’ll have to wait until police start charging outrageous fees to test the new law that will allow police departments across the state to charge for police body camera footage to raise.

Attorney Tom Kamenick, president and founder of the Wisconsin Transparency Project, released a report Thursday addressing what he called the “rushed and confusing” Act 253.

“This spring, the Wisconsin Legislature passed a new law that allows law enforcement agencies to charge applicants fees for redacting video and audio recordings in many situations. “The law effectively allows police departments to be paid twice for the same work — first by taxpayers through the normal budget process and then again by journalists and others trying to shed light on government operations,” Kamenick wrote in his article analysis. “The law, 2023 Wisconsin Act 253, is poorly drafted and was hastily passed on a bipartisan basis despite significant objections from Wisconsin media and other government transparency advocates.”

The law was written to allow police departments to cover the costs of editing out sensitive or evidence-relevant portions of body camera, dash and surveillance camera videos. But Kamenick says the law also allows police departments to edit voice messages before releasing them to the public.

Most concerning, Kamenick wrote in his analysis, are the costs, possible restrictions and fines allowed under the new law.

“The law refers only to the ‘costs of redacting,’ not the costs of ‘reviewing.'” For example, if it takes 10 hours to watch a video to determine what needs to be redacted and 1 hour to redact the actual ones Performing redactions can only be charged by the hour, he explained. “The key difference is whether review time is a ‘direct’ cost to the editorial board, as the review process is ‘necessary’ and incurs ‘actual’ costs.” This wording may be ambiguous, but any ambiguity should be resolved in favor of access. “

He’s also concerned about legal restrictions on who can file applications and how many can file them.

“An institutional applicant cannot have made 10 previous audio or video requests to the same government agency in the same calendar year,” the analysis states. “An individual requester, however, is subject to more stringent requirements.” In addition to the limit of 10 requests per year per law enforcement agency, an individual must certify that they will not use the requested records for “financial purposes” (other than to award civil damages). False certifications will subject the applicant to a $10,000 penalty, regardless of whether the error was accidental or intentional. By comparison, government officials who violate the Open Records Law face significantly lower fines of “not more than $1,000” only if they “arbitrarily or capriciously” delay or deny a records request.

Kamenick ends his analysis with a troubling conclusion.

“Law 253 was poorly designed. It was written confusingly. It allows law enforcement agencies to be paid twice for the same work (first by the taxpayer and then by the applicant). It leaves important questions unanswered. It imposes unreasonably high penalties on applicants who make simple mistakes,” Kamenick added. “Until the courts begin interpreting the provisions or the Attorney General issues formal advice, applicants and administrators have little guidance. However, everyone should bear in mind that the Open Records Law is intended to be applied liberally to facilitate access and to help provide people with the greatest possible information about the government affairs and the official actions of those officials and employees who manage these data represent them.’”