HF 3468

as introduced - 89th Legislature (2015 - 2016) Posted on 03/23/2016 11:06am

A bill for an act
relating to data practices; classifying portable recording system data; establishing
requirements for destruction of certain data in certain cases; requiring consent to
record data on private property with exceptions; imposing requirements on law
enforcement agencies and vendors; requiring audits; requiring a written policy;
requiring approval by a local governing body; amending Minnesota Statutes
2014, section 13.82, subdivisions 6, 7; Minnesota Statutes 2015 Supplement,
section 13.82, subdivision 2; proposing coding for new law in Minnesota
Statutes, chapters 13; 626.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2015 Supplement, section 13.82, subdivision 2, is
amended to read:

Subd. 2.

Arrest data.

The following data created or collected by law enforcement
agencies which document any actions taken by them to cite, arrest, incarcerate or
otherwise substantially deprive an adult individual of liberty shall be public at all times
in the originating agency:

(a) time, date and place of the action;

(b) any resistance encountered by the agency;

(c) any pursuit engaged in by the agency;

(d) whether any weapons were used by the agency or other individual;

(e) the charge, arrest or search warrants, or other legal basis for the action;

(f) the identities of the agencies, units within the agencies and individual persons
taking the action;

(g) whether and where the individual is being held in custody or is being incarcerated
by the agency;

(h) the date, time and legal basis for any transfer of custody and the identity of the
agency or person who received custody;

(i) the date, time and legal basis for any release from custody or incarceration;

(j) the name, age, sex and last known address of an adult person or the age and sex
of any juvenile person cited, arrested, incarcerated or otherwise substantially deprived
of liberty;

(k) whether the agency employed deleted text begin an deleted text end new text begin a portable recording system, new text end automated license
plate reader, wiretaps or other eavesdropping techniques, unless the release of this specific
data would jeopardize an ongoing investigation;

(l) the manner in which the agencies received the information that led to the arrest
and the names of individuals who supplied the information unless the identities of those
individuals qualify for protection under subdivision 17; and

(m) response or incident report number.

Sec. 2.

Minnesota Statutes 2014, section 13.82, subdivision 6, is amended to read:

Subd. 6.

Response or incident data.

The following data created or collected by
law enforcement agencies which document the agency's response to a request for service
including, but not limited to, responses to traffic accidents, or which describe actions taken
by the agency on its own initiative shall be public government data:

(a) date, time and place of the action;

(b) agencies, units of agencies and individual agency personnel participating in the
action unless the identities of agency personnel qualify for protection under subdivision 17;

(c) any resistance encountered by the agency;

(d) any pursuit engaged in by the agency;

(e) whether any weapons were used by the agency or other individuals;

(f) a brief factual reconstruction of events associated with the action;

(g) names and addresses of witnesses to the agency action or the incident unless the
identity of any witness qualifies for protection under subdivision 17;

(h) names and addresses of any victims or casualties unless the identities of those
individuals qualify for protection under subdivision 17;

(i) the name and location of the health care facility to which victims or casualties
were taken;

(j) response or incident report number;

(k) dates of birth of the parties involved in a traffic accident;

(l) whether the parties involved were wearing seat belts; deleted text begin and
deleted text end

(m) the alcohol concentration of each driver new text begin ; and
new text end

new text begin (n) whether the agency used a portable recording system to document the agency's
response or actions, including a brief description of its compliance with section 13.825,
subdivision 3 new text end .

Sec. 3.

Minnesota Statutes 2014, section 13.82, subdivision 7, is amended to read:

Subd. 7.

Criminal investigative data.

Except for the data defined in subdivisions
2, 3, and 6, investigative data collected or created by a law enforcement agency in order
to prepare a case against a person, whether known or unknown, for the commission of a
crime or other offense for which the agency has primary investigative responsibility are
confidential or protected nonpublic while the investigation is active. Inactive investigative
data are public unless the release of the data would jeopardize another ongoing investigation
or would reveal the identity of individuals protected under subdivision 17. new text begin Images and
recordings, including new text end photographs new text begin , video, and audio records, new text end which are part of inactive
investigative files and which are clearly offensive to common sensibilities are classified
as private or nonpublic data, provided that the existence of the deleted text begin photographs deleted text end new text begin images and
recordings new text end shall be disclosed to any person requesting access to the inactive investigative
file. An investigation becomes inactive upon the occurrence of any of the following events:

(a) a decision by the agency or appropriate prosecutorial authority not to pursue
the case;

(b) expiration of the time to bring a charge or file a complaint under the applicable
statute of limitations, or 30 years after the commission of the offense, whichever comes
earliest; or

(c) exhaustion of or expiration of all rights of appeal by a person convicted on
the basis of the investigative data.

Any investigative data presented as evidence in court shall be public. Data
determined to be inactive under clause (a) may become active if the agency or appropriate
prosecutorial authority decides to renew the investigation.

During the time when an investigation is active, any person may bring an action in
the district court located in the county where the data are being maintained to authorize
disclosure of investigative data. The court may order that all or part of the data relating to
a particular investigation be released to the public or to the person bringing the action. In
making the determination as to whether investigative data shall be disclosed, the court
shall consider whether the benefit to the person bringing the action or to the public
outweighs any harm to the public, to the agency or to any person identified in the data.
The data in dispute shall be examined by the court in camera.

Sec. 4.

new text begin [13.825] PORTABLE RECORDING SYSTEMS.
new text end

new text begin Subdivision 1. new text end

new text begin Application; definitions. new text end

new text begin (a) This section applies to law enforcement
agencies that maintain a portable recording system for use in investigations, or in response
to emergencies, incidents, and requests for service.
new text end

new text begin (b) A peace officer who collects portable recording system data, and any other
officer whose activities are recorded on the data, regardless of whether the officer is or
can be identified by the recording, is a subject of the data for purposes of this chapter,
except that the rights of a data subject provided in subdivisions 2 and 3 do not apply to a
peace officer while the officer is investigating or responding to an emergency, incident, or
request for service.
new text end

new text begin (c) As used in this section, "portable recording system" means a device worn by a
peace officer that is capable of both video and audio recording of the officer's activities and
interactions with others or collecting digital multimedia evidence as part of an investigation.
new text end

new text begin Subd. 2. new text end

new text begin Data classification; retention requirements. new text end

new text begin (a) Data collected by a
portable recording system are classified and must be maintained as follows:
new text end

new text begin (1) data that document law enforcement activity that does not constitute an
investigation or a response to an emergency, incident, or request for service, are private or
nonpublic data, and must be destroyed within 30 days of collection;
new text end

new text begin (2) data that document a law enforcement investigation or response to an emergency,
incident, or request for service are public, subject to paragraph (c), if the data document
activities in a location where a subject of the data does not have a reasonable expectation of
privacy. The data must be retained for no longer than any applicable statute of limitations
period has expired, or 180 days after the close of an investigation, whichever is later; and
new text end

new text begin (3) data that document a law enforcement investigation or response to an emergency,
incident, or request for service are private data on individuals or nonpublic data if the data
document activities in a location where a subject of the data has a reasonable expectation
of privacy, except that data that document a law enforcement investigation or response that
involves a use of force resulting in bodily harm, as defined in section 609.02, are public,
subject to paragraph (c). Data subject to this clause must be retained for no longer than
any applicable statute of limitations period has expired, or 180 days after the close of an
investigation, whichever is later.
new text end

new text begin (b) Data subject to the classification and retention requirements of this subdivision
may not be released or disseminated to any person unless the following individuals'
identities have been blurred or distorted sufficiently to render the individuals unidentifiable:
new text end

new text begin (1) individuals whose appearance on the recording are incidental and whose activities
are unrelated to the purpose of the law enforcement investigation or response; and
new text end

new text begin (2) individuals whose identities are subject to protection under section 13.82.
new text end

new text begin (c) Portable recording system data that relate to an active investigation are classified
as provided in section 13.82, subdivision 7. When the investigation becomes inactive, the
data are classified as provided in this subdivision.
new text end

new text begin Subd. 3. new text end

new text begin Notice and consent required to collect data in private locations;
exceptions. new text end

new text begin (a) Except as provided in paragraph (b), a portable recording system may
not record activity at a location where a subject of the data has a reasonable expectation
of privacy unless:
new text end

new text begin (1) the peace officer has notified each data subject whose activities may be recorded
of the existence of the recording system; and
new text end

new text begin (2) each data subject has consented to the recording system's use.
new text end

new text begin (b) The notice and consent requirements of paragraph (a) are not required:
new text end

new text begin (1) in searches conducted according to the terms of a valid search warrant;
new text end

new text begin (2) where exigent circumstances reasonably prevent the law enforcement agency
from providing notice and obtaining consent; or
new text end

new text begin (3) from individuals recorded incidentally by the portable recording system and
whose activities are unrelated to the purpose of the law enforcement investigation or
response, if the officer has made a reasonable effort to prevent those activities from being
recorded.
new text end

new text begin (c) The consent requirements of paragraph (a) are not required in an investigation of,
or response to, a report of domestic abuse as defined in section 518B.01, subdivision 2.
new text end

new text begin Subd. 4. new text end

new text begin Use of portable recording systems required. new text end

new text begin (a) At any time an officer
is equipped with a portable recording system, the system must be used to document the
peace officer's investigations and responses to all emergencies, incidents, and requests
for service. The portable recording system must collect data for the full duration of
the officer's investigation or response, subject to the notice and consent requirements
of subdivision 3. A peace officer may only use a portable recording system issued and
maintained by the officer's agency documenting the officer's investigations and responses.
new text end

new text begin (b) In the event of a conflict between this subdivision and subdivision 7, this
subdivision applies.
new text end

new text begin Subd. 5. new text end

new text begin Facial recognition technology. new text end

new text begin A law enforcement agency may not deploy
or use facial recognition technology in connection with any portable recording system
data unless expressly authorized by law. Facial recognition technology may be used to
blur or distort the identity of an individual protected by subdivision 2, paragraph (b).
new text end

new text begin Subd. 6. new text end

new text begin Use of force cases; officer review prior to completion of report
prohibited. new text end

new text begin A responding peace officer may not review data collected on a portable
recording system prior to completing the officer's final report documenting the emergency,
incident, or request for service if the law enforcement response involved a use of force.
new text end

new text begin Subd. 7. new text end

new text begin First amendment activities. new text end

new text begin To the extent possible, portable recording
systems must only be used to record a peace officer's investigations and responses to a
specific emergency, incident, or request for service. Except in response to a specific
emergency, incident, or request for service, a portable recording system may not collect
data at any event, activity, or assembly subject to protection under the First Amendment
of the United States Constitution unless the data collection has been authorized, in
writing, by the chief of police, sheriff, or head of the law enforcement agency. A written
authorization is public data at all times.
new text end

new text begin Subd. 8. new text end

new text begin Authorization to access data. new text end

new text begin (a) A law enforcement agency must comply
with sections 13.05, subdivision 5, and 13.055 in the operation of portable recording
systems and in maintaining portable recording system data.
new text end

new text begin (b) The responsible authority for a law enforcement agency must establish written
procedures to ensure that law enforcement personnel have access to the portable recording
system data that are not public only if authorized in writing by the chief of police, sheriff,
or head of the law enforcement agency, or their designee, to obtain access to the data
subject to the terms of a search warrant. Consistent with the requirements of paragraph
(c), each access must include a record of the search warrant that is the basis for the access.
new text end

new text begin (c) The ability of authorized individuals to enter, update, or access portable recording
system data must be limited through the use of role-based access that corresponds to
the official duties or training level of the individual and the statutory authorization that
grants access for that purpose. All queries and responses, and all actions in which data
are entered, updated, accessed, shared, or disseminated, must be recorded in a data
audit trail. Data contained in the audit trail are public, to the extent that the data are
not otherwise classified by law.
new text end

new text begin Subd. 9. new text end

new text begin Sharing among agencies. new text end

new text begin (a) Portable recording system data that are not
public may only be shared with or disseminated to another law enforcement agency, a
government entity, or a federal agency subject to a search warrant and upon meeting the
standards for requesting access to data as provided in subdivision 8.
new text end

new text begin (b) If data collected by a portable recording system are shared with another law
enforcement agency under this subdivision, the agency that receives the data must comply
with all data classification, destruction, and security requirements of this section.
new text end

new text begin (c) Portable recording system data may not be shared with, disseminated to, sold to,
or traded with any other individual or entity unless explicitly authorized by this section
or other applicable law.
new text end

new text begin Subd. 10. new text end

new text begin Biennial audit. new text end

new text begin (a) A law enforcement agency must maintain records
showing the date and time portable recording system data were collected and the
applicable classification of the data. The law enforcement agency shall arrange for
an independent, biennial audit of the data to determine whether data are appropriately
classified according to this section, how the data are used, and whether they are destroyed
as required under this section, and to verify compliance with subdivisions 8 and 9. If the
commissioner of administration believes that a law enforcement agency is not complying
with this section or other applicable law, the commissioner may order a law enforcement
agency to arrange for additional independent audits. Data in the records required under
this paragraph are classified as provided in subdivision 2.
new text end

new text begin (b) The results of the audit are public. The commissioner of administration shall
review the results of the audit. If the commissioner determines that there is a pattern
of substantial noncompliance with this section by the law enforcement agency, the
agency must immediately suspend operation of all portable recording systems until the
commissioner has authorized the agency to reinstate their use. An order of suspension
under this paragraph may be issued by the commissioner upon review of the results of the
audit, upon review of the applicable provisions of this chapter, and after providing the
agency a reasonable opportunity to respond to the audit's findings.
new text end

new text begin (c) A report summarizing the results of each audit must be provided to the
commissioner of administration, to the chair and ranking minority members of the
committees of the house of representatives and the senate with jurisdiction over data
practices and public safety issues, and to the Legislative Commission on Data Practices
and Personal Data Privacy no later than 30 days following completion of the audit.
new text end

new text begin Subd. 11. new text end

new text begin Notification to Bureau of Criminal Apprehension. new text end

new text begin (a) Within ten days
of implementation of a portable recording system, a law enforcement agency must notify
the Bureau of Criminal Apprehension of that implementation, including the number of
officers equipped with a portable recording system device.
new text end

new text begin (b) The Bureau of Criminal Apprehension must maintain a list of law enforcement
agencies using portable recording systems and the number of officers in each agency
using a portable recording system device. The list is public and must be available on the
bureau's Web site.
new text end

new text begin Subd. 12. new text end

new text begin Portable recording system vendors. new text end

new text begin (a) For purposes of this subdivision,
a "portable recording system vendor" means a person who is not a government entity and
that provides services for the creation, collection, retention, maintenance, processing, or
dissemination of portable recording system data for a law enforcement agency or other
government entity. By providing these services to a government entity, a vendor is subject
to all of the requirements of this chapter as if it were a government entity.
new text end

new text begin (b) Subject to paragraph (c), in an action against a vendor under section 13.08, for a
violation of this chapter, the vendor is liable for presumed damages of $2,500 or actual
damages, whichever is greater, and reasonable attorney fees.
new text end

new text begin (c) In an action against a vendor that improperly discloses data made not public by this
chapter or any other statute classifying data as not public, the vendor is liable for presumed
damages of $10,000 or actual damages, whichever is greater, and reasonable attorney fees.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2016. Data collected
before the effective date of this section must be destroyed, if required by this section, no
later than 15 days after the date this section becomes effective.
new text end

Sec. 5.

new text begin [626.8473] PORTABLE RECORDING SYSTEMS ADOPTION;
WRITTEN POLICY REQUIRED.
new text end

new text begin Subdivision 1. new text end

new text begin Definition. new text end

new text begin As used in this section, "portable recording system" has
the meaning given in section 13.825, subdivision 1.
new text end

new text begin Subd. 2. new text end

new text begin Public comment; approval of local governing body required. new text end

new text begin (a) A
local law enforcement agency may not purchase or implement a portable recording system
unless the governing body with jurisdiction over the law enforcement agency has approved:
new text end

new text begin (1) purchase and implementation of the system; and
new text end

new text begin (2) the written policy required under subdivision 3.
new text end

new text begin (b) A vote to approve use of a portable recording system and the written policy
required by subdivision 3 must occur at a regularly scheduled meeting of the governing
body, following an opportunity for public comment. Notice of the meeting must be posted
at least 30 days prior to the date of the meeting.
new text end

new text begin Subd. 3. new text end

new text begin Written policies and procedures required. new text end

new text begin (a) The chief officer of
every state and local law enforcement agency that uses or proposes to use a portable
recording system must establish and enforce a written policy governing its use, subject to
the approval requirements in subdivision 2. Use of a portable recording system without
adoption of a written policy meeting the requirements of this subdivision is prohibited.
The written policy must be posted on the agency's Web site.
new text end

new text begin (b) At a minimum, the written policy must incorporate the following:
new text end

new text begin (1) the requirements of section 13.825 and other data classifications, access
procedures, retention policies, and data security safeguards that, at a minimum, meet the
requirements of chapter 13 and other applicable law;
new text end

new text begin (2) procedures for testing the portable recording system to ensure adequate
functioning;
new text end

new text begin (3) procedures to address a system malfunction or failure, including requirements
for documentation by the officer using the system at the time of a malfunction or failure;
new text end

new text begin (4) circumstances under which recording is mandatory, prohibited, or at the
discretion of the officer using the system;
new text end

new text begin (5) circumstances under which the consent of a data subject is required prior to
recording;
new text end

new text begin (6) circumstances under which a data subject must be given notice of a recording;
new text end

new text begin (7) circumstances under which a recording may be ended while an investigation,
response, or incident is ongoing;
new text end

new text begin (8) procedures for the secure storage of portable recording system data and the
creation of backup copies of the data;
new text end

new text begin (9) procedures to ensure compliance and address violations of the policy, which
must include, at a minimum, supervisory or internal audits and reviews, and the employee
discipline standards for unauthorized access to data contained in section 13.09; and
new text end

new text begin (10) if applicable, any other standards for use contained in a uniform policy adopted
by the Minnesota Chiefs of Police Association or the Minnesota Sheriffs' Association.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2016, provided that a
law enforcement agency using a portable recording system on that date must secure the
governing body's approval of the system and the policy required under this section, no
later than January 15, 2017.
new text end