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SF 498

3rd Engrossment - 89th Legislature (2015 - 2016) Posted on 06/21/2017 11:31am

KEY: stricken = removed, old language. underscored = added, new language.

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A bill for an act
relating to data practices; classifying portable recording system data; establishing
requirements for the destruction of data; requiring policies; imposing
requirements on vendors and providing for damage awards; amending Minnesota
Statutes 2014, section 13.82, subdivision 15, by adding subdivisions; proposing
coding for new law in Minnesota Statutes, chapter 626.

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

Section 1.

Minnesota Statutes 2014, section 13.82, subdivision 15, is amended to read:


Subd. 15.

Public benefit data.

Any law enforcement agency may make any data
classified as confidential or protected nonpublic pursuant to subdivision 7 or as private
or nonpublic under subdivision 32
accessible to any person, agency, or the public if the
agency determines that the access will aid the law enforcement process, promote public
safety, or dispel widespread rumor or unrest.

Sec. 2.

Minnesota Statutes 2014, section 13.82, is amended by adding a subdivision to
read:


Subd. 32.

Portable recording systems.

(a) As used in this subdivision:

(1) "portable recording system data" means audio or video data collected by 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;

(2) "public place" means a location that is accessible to the general public where
individuals do not have a reasonable expectation of privacy with respect to audio or video
recording of their activities and interactions with others; and

(3) "redact" means to blur video or distort audio so that the identity of the subject in
a recording is obscured sufficiently to render the subject unidentifiable.

For purposes of this subdivision, the peace officer who collected the portable
recording system data or an officer whose image or voice is recorded is a subject of the
data, regardless of whether the officer is or can be identified by the recording.

(b) Portable recording system data are private data on individuals or nonpublic data
unless the recording occurred in a public place and:

(1) the incident involved the use of a dangerous weapon by a peace officer or use
of physical coercion by a peace officer that causes at least substantial bodily harm, as
those terms are defined in section 609.02; or

(2) a subject of the data requests that the data be accessible to the public, provided
that data on a subject who is not a peace officer and who does not consent to the release
must be redacted, if practicable.

A law enforcement agency may withhold access to data that are public under this
paragraph or redact the data to the extent that the data are clearly offensive to common
sensibilities.

(c) Notwithstanding paragraph (b):

(1) portable recording system data that are criminal investigative data are governed
by subdivision 7, except that inactive criminal investigative data are governed by
paragraph (b);

(2) portable recording system data that are public personnel data under section
13.43, subdivision 2, clause (5), are public; and

(3) data that are not public data under other provisions of this section retain that
classification.

(d) Any person may bring an action in the district court located in the county where
portable recording system data are being maintained to authorize disclosure of data that
are private or nonpublic under this subdivision. The person bringing the action must give
notice of the action to the law enforcement agency and subjects of the data, if known. The
law enforcement agency must give notice to other subjects of the data, if known, who did
not receive the notice from the person bringing the action. The court may order that all or
part of the data be released to the public or to the person bringing the action. In making
this determination, 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 law enforcement agency,
or to a subject of the data. The data in dispute must be examined by the court in camera.
This paragraph does not affect the right of a defendant in a criminal proceeding to obtain
access to portable recording system data under the Rules of Criminal Procedure.

(e) A law enforcement agency that uses portable recording systems must maintain
the following information, which is public data:

(1) the total number of devices owned or maintained by the agency;

(2) a daily record of the total number of devices actually deployed and used by
officers and, if applicable, the precincts in which they were used;

(3) the law enforcement agency's policies and procedures for use of portable
recording systems; and

(4) the total amount of recorded audio and video data collected by portable recording
systems and maintained by the agency and the agency's retention schedule for the data
and procedures for destruction.

(f) Notwithstanding section 138.17, portable recording system data that are not
active or inactive criminal investigative data and are not described in paragraph (g) must
be maintained for at least 90 days and destroyed within one year of the date the data
were collected.

(g) Portable recording system data must be maintained for at least one year and
destroyed within three years of the date the data were collected if:

(1) the incident involved the use of a dangerous weapon by a peace officer or use
of physical coercion by a peace officer that causes at least substantial bodily harm, as
those terms are defined in section 609.02; or

(2) a formal complaint is made against a peace officer related to the incident.

(h) If a subject of the data submits a written request to the law enforcement agency
to retain the recording beyond the applicable retention period for possible evidentiary or
exculpatory use in a future proceeding related to the circumstances under which the data
were collected, the law enforcement agency shall retain the recording for an additional
time period requested by the subject of up to 180 days and notify the requester that the
recording will then be destroyed unless a new request is made under this paragraph.
A government entity may retain the recording for as long as reasonably necessary for
possible evidentiary or exculpatory use in a future proceeding related to the incident with
respect to which the data were collected.

(i) An individual who is the subject of portable recording system data has access to
the data, including data on other individuals who are the subject of the recording. If the
individual requests a copy of the recording, data on other individuals who do not consent
to its release must be redacted from the copy.

(j) A law enforcement agency using portable recording systems must arrange for
an independent triennial audit of data collected from the systems to determine whether
the data have been maintained, classified, and destroyed as required by this subdivision.
Summary data related to the results of the audit are public data.

(k) Within ten days of obtaining new surveillance technology that expands the
type or scope of surveillance capability of a portable recording system device beyond
video or audio recording, a law enforcement agency must notify the Bureau of Criminal
Apprehension that it has obtained the new surveillance technology. The notice must
include a description of the technology and its surveillance capability and intended uses.
The notices are accessible to the public and must be available on the bureau's Web site.

EFFECTIVE DATE.

This section is effective the day following final enactment.
Data collected before the effective date of this section must be destroyed, if required by
this section, no more than 90 days after this section becomes effective.

Sec. 3.

Minnesota Statutes 2014, section 13.82, is amended by adding a subdivision to
read:


Subd. 33.

Portable recording system vendor.

(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.

(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.

(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.

Sec. 4.

[626.8473] PORTABLE RECORDING SYSTEMS ADOPTION;
WRITTEN POLICY REQUIRED.

Subdivision 1.

Definition.

As used in this section, "portable recording system"
means a device described in section 13.82, subdivision 32.

Subd. 2.

Public comment; approval of local governing body required.

(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:

(1) purchase and implementation of the system; and

(2) the written policy required under subdivision 3.

(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.

Subd. 3.

Written policies and procedures required.

(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. In developing and adopting the policy, the
law enforcement agency must provide for public comment and input. 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.

(b) At a minimum, the written policy must incorporate the following:

(1) the requirements of section 13.82, subdivision 32, 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;

(2) procedures for testing the portable recording system to ensure adequate
functioning;

(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;

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

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

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

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

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

(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

(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.

EFFECTIVE DATE.

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.

Sec. 5.

[626.8475] PORTABLE RECORDING DEVICE POLICY.

A law enforcement agency that authorizes peace officers employed by the agency
to wear portable recording devices must allow a peace officer to review recordings from
a portable recording device before completing the officer's final report or making a
statement related to an incident.

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