HSPA made no headway in initial efforts to change a bill giving police departments total discretion on the release of police car and body camera video.
The House Government and Regulatory Reform Committee voted unanimously (13-0) to pass H.B. 1019 Jan. 12 without any amendments.
A day later, Indiana House Democrats discussed potential amendments to the bill that HSPA favored.
The bill’s original language came from the Interim Committee on Government, which met last summer. Rep. Kevin Mahan, R-Hartford City, authored the bill.
The bill establishes law enforcement video as subject matter that police have the discretion to keep confidential.
Steve Key, executive director and general counsel for HSPA, said that under existing law, police have to at least claim videos are “investigatory records.”
He said law enforcement has no legal incentive to make video available to the public under H.B. 1019 unless it exonerates the officer involved.
The current language gives police chiefs and sheriffs carte blanche to decline all requests from the public or press solely on the basis that they don’t want to make videos available.
If that’s the case, a citizen or reporter’s only recourse is to file a lawsuit. There is no intermediary, like the state public access counselor, who can be asked to intervene.
And unlike the general principles of the Access to Public Records Act, where a government agency has the burden to convince the court a record can be kept confidential, the public has the burden to convince a judge that the wishes of police should be overruled.
Under the bill, the public, without seeing the video in question, must prove that:
- Public interest will be served by the video’s release.
- Release doesn’t create a significant risk of substantial harm to any person or the public at large.
- Release will not create a prejudicial effect on ongoing civil or criminal proceedings.
H.B. 1019 also deviates from the Access to Public Records Act in that if the reporter or citizen prevails in court, this bill as currently written prohibits a judge from awarding reasonable attorney fees or court costs.
Under the Access to Public Records Act, the legislature requires such reimbursement as long as the plaintiff first tried to resolve the issue with the public access counselor.
Indianapolis attorney Dan Byron, representing the Indiana Broadcasters Association and Indiana Coalition for Open Government, also raised concerns for the bill’s framework.
Evansville Courier & Press reporter Jay Young also spoke in favor of greater transparency in the bill.
The bill now goes to the House floor, where any state representative can offer amendments. After this second reading, the House will vote on H.B. 1019 as it stands at that point.
“It’s disappointing that greater concern was raised by some committee members over how video requests might put officers in a bad light than the public’s ability to bring poor behavior by police officers to light,” Key said.
Key asked the committee to consider a structure that would give video of certain interactions between police and the public a presumption of disclosure, which mirrors the Access to Public Records Act.
Under the HSPA proposal, law enforcement would then have a burden to object to a request to inspect or copy the video.
HSPA suggested that a panel – perhaps with the public access counselor, a law enforcement member and citizen representative – hear the objection and offer a ruling.
This would be similar to the Access to Public Records Act’s use of the access counselor to resolve most disputes without the need for litigation.
If either side felt strongly that the panel ruling was wrong, then a lawsuit could be filed.
HSPA feels that a citizen victory should also come with a reimbursement of reasonable attorney fees and court costs as called for under the Access to Public Records Act.
Only Rep. Sue Errington, R-Muncie, voiced support for a citizen being reimbursed for court costs and attorney fees.
In other Government and Regulatory Committee actions, lawmakers also passed without changes H.B. 1022, concerning the public’s access to information on private university police departments.
HSPA testified that while the bill is an improvement to current law, private universities would not report the same information from criminal investigations under H.B. 1022 that a city police department would under the Access to Public Records Act.
Rep. Pat Bauer, D-South Bend, is the bill’s author. The language was recommended by the Independent Colleges of Indiana, he said.
Ben Hunter, chief of staff to the president at Butler University, told the committee that private universities have to report more under the federal Clery Act.
HSPA’s Key shared police reporting requirements under the Access to Public Records Act at IC 5-14-3-5 with the committee.
The statute requires release of the name and age of the victim (unless a sex crime), the factual circumstances surrounding the incident and a general description of any injuries, property involved or weapons used.
A look at the Clery Act [20 U.S.C. 1092(f)] shows that the only university requirements are a log showing the nature of the crime and disposition of the complaint. Key said that’s more a dispatch log entry than a daily report.
The committee passed the bill out of committee 13-0.