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Testimony of the D.C.

Open Government Coalition


By
Kevin M. Goldberg
President
Before the Committee on Judiciary of the Council of the District of Columbia
B21-351, The Body Worn Camera Program Regulations Amendment Act of 2015
B21-356, The Public Access to Body-Worn Camera Video Amendment Act of 2015
PR21-327, The Metropolitan Police Department Body Worn Cameras Approval Resolution of 2015

October 21, 2015


Chairman McDuffie, Members of the Committee on the Judiciary.
My name is Kevin M. Goldberg and I am the President of the D.C. Open Government
Coalition (DCOGC). Our nonprofit, nonpartisan organization seeks to enhance the publics
access to government information and ensure the transparency of government operations of the
District of Columbia. We believe that transparency promotes civic engagement and is critical to
responsive and accountable government. We strive to improve the processes by which the public
gains access to government records and proceedings, and to educate the public and government
officials about the principles and benefits of open government in a democratic society.
On the issue of access to body-worn camera (BWC) video, the Coalition has strongly
supported striking a balance between the publics right to access government records and the
need to protect non-public information. We recognize that logistical challenges exist in making
video content available, but strongly oppose any kind of blanket exemption for access to BWC

footage when the existing exemptions to the D.C. Freedom of Information Act (D.C. FOIA) offer
adequate protection for, among others, law enforcement and personal privacy interests. This
information is crucial to the publics understanding of government operations, which strikes to
the core of the purpose of the D.C. FOIA.
Your efforts especially yours, Mr. Chairman to ensure transparency surrounding
the Metropolitan Police Department (MPD) BWC program are particularly appreciated and may
prove invaluable. We hope that you remain steadfast in your dedication to this transparency goal.
That is why we are asking you today to vote no on PR21-327, the Metropolitan Police
Department Body-Worn Cameras Approval Resolution of 2015 and reject the proposed changes
in B21-351, the Body-Worn Camera Program Regulations Amendment Act of 2015 and B21356, the Public Access to Body-Worn Camera Video Amendment Act of 2015.
We know that implementation of a permanent BWC program feels long overdue.
However, implementing this program in its current form will negate the accountability and
public trust benefits that form the basis for the program itself. The proposed legislative changes
are rooted in an unrealistic view of how the D.C. FOIA and public records laws generally
operate, and appear to draw arbitrary lines around those instances in which public access will be
permitted. Specifically, there is no absolute and direct correlation between the location where a
BWC video is recorded and the impact the resulting video has on the privacy interests of those
involved. Regardless, the existing exemption in Section 2-534(b)(2) of the D.C. Code will
sufficiently protect those privacy interests. The same arbitrariness is apparent in the proposed
regulatory changes addressing access outside of the D.C. FOIA process.

However, before analyzing these substantive deficiencies, Id first like to say that the
process leading up to this hearing has also been deficient. The formation of an Advisory Council
was a laudable step in theory. In practice, that process did not allow for adequate debate and
discussion of these proposals, nor did it lead to a consensus recommendation among the
participants. In fact, the final proposals that resulted after the Advisory Council process do not
appear to be substantively different from the initial proposals, despite assertions by the Mayors
office to the contrary. BWC videos will only be available through the D.C. FOIA in extremely
limited situations: where the video was recorded on public property; where it does not include
footage of domestic violence, stalking, sexual assaults or assaults; and where all personally
identifying information has been redacted. This will result in the release of almost nothing at all
most likely only those videos that are least useful for public oversight purposes.
The DCOGC joined with the American Civil Liberties Union of the Nations Capital, the
D.C. Police Union and the Reporters Committee for Freedom of the Press in a Sept. 10 letter to
the Mayor and Members of the Council that stated: the expert and community members of the
Advisory Committee mandated by the Council have been given no opportunity for meaningful
input into the details of this proposal before it was publicly released with time for the executive
branch to consider them before completing its proposals to the Council. Members of the
Advisory Council met twice over the span of about two months. The Advisory Council was
formally given an initial revised proposal just two days before the second meeting on Aug. 27,
and, when members inquired about aspects of that proposal during the Aug. 27 meeting, Deputy
Mayor Kevin Donahue repeatedly referred to it as a framework with more details forthcoming.
Those details were made available on Sept. 9 when the final proposals being discussed today

were released. That is not an acceptable participatory process for evaluation of legislative and
regulatory frameworks that would have significant impact on the publics right to know.
The Proposed Changes to the D.C. Freedom of Information Act are Unnecessary and
Overbroad.
Public access to BWC videos should be governed by existing law, subject only to
exemptions currently existing in in Section 2-534 of the D.C. Code, specifically Exemption 2,
relating to clearly unwarranted invasions of personal privacy, and Exemption 3, relating to
investigatory records compiled for law enforcement purposes. No amendments to these
exemptions are necessary; the existing exemptions would adequately address the instances
imagined in the proposed new exemptions.
The Proposed Changes to FOIA Exemption 2 are Unnecessary and Overbroad because
that Exemption Already Adequately Protects Personal Privacy Interests.
We are not seeking greater access than that already contemplated under access laws,
which already adequately address the privacy considerations. As new mediums for capturing and
disseminating information have developed over time from still photographs to video captured
by traditional video cameras, cellphones, and now BWCs the law adapts. Privacy remains an
important consideration no matter the medium. BWCs do not change that.1
An extended discussion of the policy rationales for access to BWC videos is not
necessary at this time, as these issues were thoroughly addressed at the Public Roundtable held

Such a result is consistent with the approach being taken by other states on this issue. Research conducted by
attorneys at Ropes & Gray, LLP, which provides pro bono legal counsel to the DCOGC in preparation for this
Committees May 7 public roundtable on this issue found that a majority of states would treat BWC videos pursuant
to existing FOIA laws. http://dcogc.github.io/bwc/.

on May 7. I will simply refer you to the testimony I presented on behalf of the DCOGC at the
roundtable.2
The newly proposed changes to the D.C. FOIA are harmful to public access. The D.C.
FOIA presumes access to records unless a specific exemption applies:
The public policy of the District of Columbia is that all persons are entitled to full
and complete information regarding the affairs of government and the official acts
of those who represent them as public officials and employees. To that end,
provisions of this subchapter shall be construed with the view toward expansion of
public access and the minimization of costs and time delays to persons requesting
information.
D.C. Code Section 2-531. Contrary to this stated goal of the D.C. FOIA, the proposed legislative
changes will allow wide swaths of recordings to be exempt from public access.
These proposed exemptions are overbroad and bear no relationship to primary
justification for their existence: protecting the privacy of those individuals seen on the videos. In
testimony to this Committee on behalf of the DCOGC on May 7 regarding the then-proposed
complete exemption from FOIA, I noted that existing law has proven more than capable of
protecting privacy interests to this point; that remains true now, as we look at something that is
(only slightly) less than a complete exemption.
The main area of overbreadth is the exemption found in what would become Section 2534(a)(2A)(A). That proposed section states any BWC footage recorded inside a residence or
any other place where a person has a heightened expectation of privacy (such as health care
facilities or social service facilities) will be fully exempt from disclosure under the D.C.

http://www.dcogc.org/sites/default/files/dcogc_body_cameras_testimony_final_00786771xb3d1e.pdf

FOIA. Even footage taken on a public street would be subject to mandatory redaction whenever
there are unidentified privacy concerns and, where traffic stops are involved, the audio from the
footage must be redacted. Neither common law nor the D.C. FOIA or other public records laws
approach privacy with such a broad brush. Privacy under common law and Federal FOIA is very
situational in nature, ever-changing depending on various facts and circumstances.
Perhaps most important, the privacy interests involved in a BWC video are not reliant on
the geographic location. That is merely one of many factors that should be considered. The law
has always treated personal privacy in public and private spaces as more of a continuum than
a set of hard and fast lines. While there is a greater expectation of privacy in ones residence and
a near lack of any expectation of privacy when one is on a public street, everything is situational.
In certain situations, public oversight of police action in a traditionally private location may be
entirely warranted. A similar flexibility must be applied in these privacy analyses as well.
Of similar, though somewhat more understandable, concern is a proposed new section 2534(a)(2)(2A)(B) for BWC footage related to cases involving domestic violence, sex assaults,
stalking or assaults.3 The current FOIA exemption 2 allowing withholding of information of a
personal nature where the public disclosure thereof would constitute a clearly unwarranted
invasion of personal privacy is equipped to protect these significant privacy interests.
DC Code Section 2-534(a)(2) exempts Information of a personal nature where the public
disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. BWC

There is a curious exception here allowing the Mayor to release footage in matters of great public interest. Why
should the Mayor be able to override the exemption in these cases, where privacy and security interests for subjects
or others involved would be truly heightened but not in those cases where some random, unidentifiable privacy
concern may exist just because of the location in which footage was recorded?

videos will inherently contain footage that invokes a privacy review. The Coalitions concern is
that, because of the sensitive nature of some content, MPD will already be inclined to invoke
exemptions whether or not the exemption is properly applied on balance. This is the case with
regard to the only D.C. FOIA requests to date: they have all been rejected. In other words, MPD
has successfully relied on existing exemption 2 to deny a request for video recorded on private
property such as a private residence, where minors can be seen in the video, or where the video
was recorded during a call in response to a particularly sensitive situation, such as a domestic
violence call or sexual assault call. While we have not seen litigation over this matter, our
concern extends to possible judicial review of such exemptions as well. Courts have traditionally
been very deferential toward privacy claims and we are concerned that may be enhanced in the
settings imagined in BWC video footage.
That is true whether the records sought are paper records, photographs or videos. Thus,
while BWC videos do carry heightened concerns regarding the invasion of ones privacy, so too
will government agencies be sensitive to those concerns when reviewing requests, as will courts
adjudicating cases filed after a denial assuming a requester actually has the time, money and
dedication to take the agency to court (which many do not).
The final proposal is also unnecessarily overbroad. The initial proposal exempted from
the D.C. FOIA access videos of incidents of domestic violence, sex assaults, or stalking. The
final proposal adds assaults to that list, which is a major and meaningful change. It is
effectively an exception that swallows the rule. Domestic violence, stalking, or sexual assault are
all certain to raise significant privacy concerns, but the inclusion of the assaults as a wholesale
category seems entirely misplaced. Assaults cover a wide variety of interactions. Adding this
category would seemingly include any situation where a police officer assaults a member of the
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public or another law enforcement officer. Both are instances where there should be an
evaluation of whether the publics interest outweighs privacy interests. A wholesale exemption
of these recordings from public access completely undercuts the oversight and accountability
offered by BWCs.
The Proposed Procedural Changes are Also Unnecessary.
Even those proposed legislative changes beyond the breadth of the D.C. FOIA
exemptions are unnecessary. For instance, there is a proposed change to create a new Section 2532(a-2)(2) (and amend Section 2-532(f)(1A)) to require a requester to identify with specificity
the location, date and approximate time of the incident in question. A request that identifies with
records sought with particularity is already required under the D.C. FOIA.4 A request that does
not include this information is likely to be rejected.5
The newly proposed Section 2-532(c)(2) is also unnecessary. That section would give the
MPD extra time to respond to a FOIA request for a BWC video, allowing for 45 days to respond
in all instances (as opposed to the 15 day response period for all other records), with proposed
Section 2-532(d) allowing an extension of time of up to 30 days when various unusual

Section 2-532(c) of the DC Code provides that A public body, upon request reasonably describing any public
record, shall within 15 days (except Saturdays, Sundays, and legal public holidays) of the receipt of any such
request either make the requested public record accessible or notify the person making such request of its
determination not to make the requested public record or any part thereof accessible and the reasons therefore
(emphasis added). The D.C. Office of Open Government offers further instruction: Describe the record(s) you are
seeking as clearly and precisely as possible. In your description, please be as specific as possible with regard to
names, dates, places, events, subjects, and other pertinent details that will help the public body to identify the
records. The more specific you are about the records you are seeking, the more likely the public body will be able to
locate those records. If your request is vague or too broad, we may ask you to be more specific, and this may delay
the processing of your request. http://www.open-dc.gov/freedom-information-act.
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If the Council retains this provision it should follow Seattles lead by posting virtually all BWC video on YouTube
in a highly blurred format. This allows a potential requester to get some idea of what he or she actually wants to
request. It should consider requiring this anyway as a means of promoting responsible, detailed requesting.
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circumstances exist (again, longer than the 10 day extension period applicable to all other
records). Newly proposed subsections 2-532(d)(3)-(4) explicitly identify the need to review a
voluminous amount of separate and distinct video footage which are demanded in a single
request or to review a single lengthy video recording demanded in a request or the inability to
procure a vendor to perform the redactions within the original 45 days as reasons for such a 30
day extension.
These are unnecessarily duplicative of existing law. Current law gives the MPD sufficient
opportunity to justify an extension of the time in which to respond to a request when unusual
circumstances are present, as Section 2-532(d)(1) allows for an extension when there is a need
to search for, collect and appropriately examine a voluminous amount of separate and distinct
records which are demanded in a single request. Agencies of the District of Columbia routinely
some requesters believe too often invoke the existing provisions for extending a request.
There is no need to give the MPD additional authority and opportunity to delay release Further,
as technology continues to improve, it will be increasingly unlikely that the MPD will need this
extended amount of time to respond to those requests it will fulfill, even where redaction is
necessary. 6
Several of the Proposed Regulatory Changes are also Unnecessary, Harming both
Individual and Public Interests.

While the DCOGC is primarily focused on the proposed changes to the D.C. FOIA found
in BR-356, there are certain aspects of BR-351 that may be harmful to public access. Those

Clearly the technology surrounding body cameras continues to improve. Since the May 7 public roundtable, an
Atlanta-based company called Utility Associates has created new technology that appears to make it incredibly easy
to make even very specific and narrow redactions . http://www.prnewswire.com/news-releases/smart-redaction-forpolice-body-worn-video-300142227.html.

provisions appear to lack sufficient consideration and also demonstrate the arbitrariness of the
final proposals.
Proposed Regulation 3900.04
This regulation would allow MPD officers to:
[R]ecord First Amendment assemblies for the purpose of documenting violations
of law and police actions, as an aid to future coordination and deployment of law
enforcement units, and for training purposes; provided, that recording First
Amendment assemblies shall not be conducted for the purpose of identifying and
recording the presence of individual participants who are not engaged in unlawful
conduct.
This explicit authority to record legal assembly protected by the First Amendment creates the
impression of sanctioned police surveillance of public protests and could chill constitutionally
protected expression. Recording in these situations should be subject to the general rules
regarding activation of cameras where police-citizen interaction is occurring.
Proposed Regulation 3902.03
Proposed Regulation 3902.3(a) would allow access, without a D.C. FOIA request, to
anyone who alleges non-criminal misconduct related to an interaction with an MPD officer,
such as rudeness or unprofessionalism on the part of the officer. Subsection 3902.3(b) allows
similar access to anyone who is the subject of a BWC recording in a non-criminal case. In either
instance, access consists of the ability to view such a recording at the police station in the police
district where the alleged misconduct occurred, does not include the right to copy the recording,
and is subject to a requirement that the viewing not violate the personal privacy rights of other
subjects of the recording.

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We cannot understand why any and all persons should not have similar access, especially
in those situations outlined in Subsection (a), involving non-criminal misconduct by an officer.
After all, there are very limited privacy implications when the video can only be viewed, but not
copied or distributed. Anyone should have a right to view specific videos where such misconduct
has occurred.
Regardless of whether the Council agrees with this position, we believe that the words
any person should be changed to read any person or his or her legal representative so as to
allow the parents or legal guardian of involved minors to have access in these situations or the
attorney for an individual considering legal action to assist his or her client.
Proposed Regulation 3902.6
Proposed regulation 3902.6 states:
The Department may form research partnerships with academic institutions and
organizations to examine the impact of the BWC program on community-law
enforcement interactions; provided, that any such partnerships shall require the
protection of any information or unredacted BWC recordings received by the
researchers.
We cannot understand why only those researchers with whom the MPD forms a partnership will
have access to these videos under this section. This seems to allow the MPD to subjectively
choose preferred partners. There should be some type of objective criteria to allow access by any
researchers than can show their work is in the public interest and which bears no relation to the
content or subject matter of their past, current or future research.
Conclusion
The proposals we are discussing today appear to have been hastily crafted without full, careful
thought to their impact. D.C. citizens deserve better. While the DCOGC does advocate for access
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to government information, again let me be clear that we are not advocating for mandatory
access to BWC videos. We are not even advocating for more access to BWC videos than
currently exists for other records requested pursuant to the D.C. FOIA. We are simply asking that
these records be considered under the existing FOIA exemptions.
That is why we ask the Members of the Council to vote no on all three bills before the
Judiciary Committee today and to provide the careful evaluation, deliberation and discussion that
this process lacked. This is an incredibly important time. All eyes are on forward-leaning
jurisdictions like the District as it implements a body-worn cameras program, and all eyes will be
on the District to ensure that it addresses access to BWC footage in an appropriate way. The
DCOGC hopes to work closely with the Council on a more collaborative, participatory process
to ensure that important considerations like personal privacy are properly protected while
providing the citizens of the District of Columbia with the information they need to hold their
government accountable.
Thank you.

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