The American Civil Liberties Union of Vermont filed an appeal with the Vermont Supreme Court on Tuesday over a denial of a Burlington man’s request to view, free of charge, body camera footage from the arrest of a minor.
Reed Doyle was walking his dog near Burlington’s Roosevelt Park on June 17, 2017, when he saw police officers in a confrontation with a group of youths. One had been arrested for disorderly conduct before Doyle arrived, and others were arguing with police about the arrest.
Doyle says he heard the officers threaten to use pepper spray on the group. He also says he saw an officer push a boy, who already was backing away with his hands up. When the boy protested being pushed, he, too, was arrested for disorderly conduct. Doyle approached the police officers immediately, and afterward filed a complaint claiming excessive use of force.
Police initially refused to provide Reed Doyle with footage of what he believes amounts to officer misconduct and unreasonable use of force against minors. After the ACLU filed an appeal on behalf of Doyle, city police chief Brandon del Pozo agreed to provide a heavily redacted version of the footage if Doyle paid the city $220.50 for staff time.
The disagreement over whether or not the Burlington Police Department can charge Doyle for the redaction hinges on differing interpretations of the state’s Public Records Act.
Washington Superior Court Judge Mary Teachout sided with the Burlington Police Department in her August decision, saying that the state’s Public Records Act allows for government bodies to charge for staff time to process record requests regardless of whether the requestor wants to obtain, or merely view, a copy of a record.
“The disjunctive reference in the act to the rights to ‘inspect or copy’ is not to two separate rights with a public records regime built around the distinction,” wrote Teachout.
Jay Diaz, staff attorney for the ACLU, said that his organization disagrees. “We believe that the Public Records Act and the legislators that wrote it were very clear in distinguishing between inspection, which is free, and receiving copies, which can come with a monetary charge,” he said.
Diaz said that Teachout’s decision is at odds with a 2011 decision by former Washington County Superior Court Judge Geoffrey Crawford. In that decision, Crawford wrote that the legislature was “not conflating the concepts of ‘copy’ and ‘inspection’” in the 1996 amendment that added cost recovery provisions into the Public Records Act.
Because the records of the arrested minors and police officer personnel files are sealed, “there’s really no mechanism, other than inspecting public records, to shine a light on the issue,” said Diaz.
“If we allow agencies to charge for redaction no matter what, then there’s no incentive for them to make the redaction process quicker and simpler,” said Diaz. “They’re incentivized, actually, to apply redactions as broadly as possible to potentially avoid the release of embarrassing information because it will cost more and more for people even to take a look a the document.”
Brandon del Pozo, chief of police for Burlington, said that the department’s decision strikes a balance between government transparency and “protecting people’s privacy” in a police matter. That tension is exacerbated in public records requests for body camera footage, he said, as it relies on “nascent technology that is expensive to work around.”
Del Pozo pointed to an ACLU model body camera policy that says that footage should be redacted as needed to protect privacy, with an unredacted original of body camera footage preserved. As the department needs to make a copy of the video to redact it, Doyle’s request falls within the cost recovery provisions of the state public records act, he said.
“Reed is right,” said del Pozo. “He has the right to view the government’s records, including our body camera footage, but also in accordance with Vermont law.”
The police department will soon be acquiring facial recognition software that will simplify video redactions, del Pozo said. “I look forward to the day when redactions are easy and they’re quick and they’re relatively inexpensive,” he added.
The police chief noted that the department had conducted an internal investigation of the matter and determined that officers had used “little to no force” in the incident. Doyle could take up the matter with the civilian Burlington police commission that reviewed the investigation, he added.
Doyle said ultimately his request to view the footage boils down to holding police officers accountable, which is something he feels members of the public should not have to pay to do.
“If I didn’t have the means or money to go pay for the redaction, then what happens to public right to know?”
