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SF 498A

Conference Committee Report - 89th Legislature (2015 - 2016) Posted on 06/21/2017 11:31am

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1.1CONFERENCE COMMITTEE REPORT ON S.F. No. 498
1.2A bill for an act
1.3relating to data practices; classifying portable recording system data; establishing
1.4requirements for the destruction of data; requiring policies; imposing
1.5requirements on vendors and providing for damage awards;amending Minnesota
1.6Statutes 2014, section 13.82, subdivision 15, by adding subdivisions; proposing
1.7coding for new law in Minnesota Statutes, chapter 626.
1.8May 21, 2016
1.9The Honorable Sandra L. Pappas
1.10President of the Senate
1.11The Honorable Kurt L. Daudt
1.12Speaker of the House of Representatives
1.13We, the undersigned conferees for S.F. No. 498 report that we have agreed upon the
1.14items in dispute and recommend as follows:
1.15That the House recede from its amendments and that S.F. No. 498 be further
1.16amended as follows:
1.17Delete everything after the enacting clause and insert:

"1.18    Section 1. Minnesota Statutes 2015 Supplement, section 13.82, subdivision 2, is
1.19amended to read:
1.20    Subd. 2. Arrest data. The following data created or collected by law enforcement
1.21agencies which document any actions taken by them to cite, arrest, incarcerate or
1.22otherwise substantially deprive an adult individual of liberty shall be public at all times
1.23in the originating agency:
1.24(a) time, date and place of the action;
1.25(b) any resistance encountered by the agency;
1.26(c) any pursuit engaged in by the agency;
1.27(d) whether any weapons were used by the agency or other individual;
1.28(e) the charge, arrest or search warrants, or other legal basis for the action;
1.29(f) the identities of the agencies, units within the agencies and individual persons
1.30taking the action;
2.1(g) whether and where the individual is being held in custody or is being incarcerated
2.2by the agency;
2.3(h) the date, time and legal basis for any transfer of custody and the identity of the
2.4agency or person who received custody;
2.5(i) the date, time and legal basis for any release from custody or incarceration;
2.6(j) the name, age, sex and last known address of an adult person or the age and sex
2.7of any juvenile person cited, arrested, incarcerated or otherwise substantially deprived
2.8of liberty;
2.9(k) whether the agency employed an a portable recording system, automated license
2.10plate reader, wiretaps or other eavesdropping techniques, unless the release of this specific
2.11data would jeopardize an ongoing investigation;
2.12(l) the manner in which the agencies received the information that led to the arrest
2.13and the names of individuals who supplied the information unless the identities of those
2.14individuals qualify for protection under subdivision 17; and
2.15(m) response or incident report number.

2.16    Sec. 2. Minnesota Statutes 2014, section 13.82, subdivision 6, is amended to read:
2.17    Subd. 6. Response or incident data. The following data created or collected by
2.18law enforcement agencies which document the agency's response to a request for service
2.19including, but not limited to, responses to traffic accidents, or which describe actions taken
2.20by the agency on its own initiative shall be public government data:
2.21(a) date, time and place of the action;
2.22(b) agencies, units of agencies and individual agency personnel participating in the
2.23action unless the identities of agency personnel qualify for protection under subdivision 17;
2.24(c) any resistance encountered by the agency;
2.25(d) any pursuit engaged in by the agency;
2.26(e) whether any weapons were used by the agency or other individuals;
2.27(f) a brief factual reconstruction of events associated with the action;
2.28(g) names and addresses of witnesses to the agency action or the incident unless the
2.29identity of any witness qualifies for protection under subdivision 17;
2.30(h) names and addresses of any victims or casualties unless the identities of those
2.31individuals qualify for protection under subdivision 17;
2.32(i) the name and location of the health care facility to which victims or casualties
2.33were taken;
2.34(j) response or incident report number;
2.35(k) dates of birth of the parties involved in a traffic accident;
3.1(l) whether the parties involved were wearing seat belts; and
3.2(m) the alcohol concentration of each driver; and
3.3(n) whether the agency used a portable recording system to document the agency's
3.4response or actions.

3.5    Sec. 3. Minnesota Statutes 2014, section 13.82, subdivision 7, is amended to read:
3.6    Subd. 7. Criminal investigative data. Except for the data defined in subdivisions
3.72, 3, and 6, investigative data collected or created by a law enforcement agency in order
3.8to prepare a case against a person, whether known or unknown, for the commission of a
3.9crime or other offense for which the agency has primary investigative responsibility are
3.10confidential or protected nonpublic while the investigation is active. Inactive investigative
3.11data are public unless the release of the data would jeopardize another ongoing investigation
3.12or would reveal the identity of individuals protected under subdivision 17. Images and
3.13recordings, including photographs, video, and audio records, which are part of inactive
3.14investigative files and which are clearly offensive to common sensibilities are classified
3.15as private or nonpublic data, provided that the existence of the photographs images and
3.16recordings shall be disclosed to any person requesting access to the inactive investigative
3.17file. An investigation becomes inactive upon the occurrence of any of the following events:
3.18(a) a decision by the agency or appropriate prosecutorial authority not to pursue
3.19the case;
3.20(b) expiration of the time to bring a charge or file a complaint under the applicable
3.21statute of limitations, or 30 years after the commission of the offense, whichever comes
3.22earliest; or
3.23(c) exhaustion of or expiration of all rights of appeal by a person convicted on
3.24the basis of the investigative data.
3.25Any investigative data presented as evidence in court shall be public. Data
3.26determined to be inactive under clause (a) may become active if the agency or appropriate
3.27prosecutorial authority decides to renew the investigation.
3.28During the time when an investigation is active, any person may bring an action in
3.29the district court located in the county where the data are being maintained to authorize
3.30disclosure of investigative data. The court may order that all or part of the data relating to
3.31a particular investigation be released to the public or to the person bringing the action. In
3.32making the determination as to whether investigative data shall be disclosed, the court
3.33shall consider whether the benefit to the person bringing the action or to the public
3.34outweighs any harm to the public, to the agency or to any person identified in the data.
3.35The data in dispute shall be examined by the court in camera.

4.1    Sec. 4. Minnesota Statutes 2014, section 13.82, subdivision 15, is amended to read:
4.2    Subd. 15. Public benefit data. Any law enforcement agency may make any data
4.3classified as confidential or protected nonpublic pursuant to subdivision 7 or as private
4.4or nonpublic under section 13.825 accessible to any person, agency, or the public if the
4.5agency determines that the access will aid the law enforcement process, promote public
4.6safety, or dispel widespread rumor or unrest.

4.7    Sec. 5. [13.825] PORTABLE RECORDING SYSTEMS.
4.8    Subdivision 1. Application; definition. (a) This section applies to law enforcement
4.9agencies that maintain a portable recording system for use in investigations, or in response
4.10to emergencies, incidents, and requests for service.
4.11(b) As used in this section:
4.12(1) "portable recording system" means a device worn by a peace officer that is
4.13capable of both video and audio recording of the officer's activities and interactions with
4.14others or collecting digital multimedia evidence as part of an investigation;
4.15(2) "portable recording system data" means audio or video data collected by a
4.16portable recording system; and
4.17(3) "redact" means to blur video or distort audio so that the identity of the subject in
4.18a recording is obscured sufficiently to render the subject unidentifiable.
4.19    Subd. 2. Data classification; court-authorized disclosure. (a) Data collected by a
4.20portable recording system are private data on individuals or nonpublic data, subject to
4.21the following:
4.22(1) data that document the discharge of a firearm by a peace officer in the course
4.23of duty, if a notice is required under section 626.553, subdivision 2, or the use of force
4.24by a peace officer that results in substantial bodily harm, as defined in section 609.02,
4.25subdivision 7a, are public;
4.26(2) data are public if a subject of the data requests it be made accessible to the public,
4.27except that, if practicable, (i) data on a subject who is not a peace officer and who does not
4.28consent to the release must be redacted, and (ii) data on a peace officer whose identity is
4.29protected under section 13.82, subdivision 17, clause (a), must be redacted;
4.30(3) portable recording system data that are active criminal investigative data are
4.31governed by section 13.82, subdivision 7, and portable recording system data that are
4.32inactive criminal investigative data are governed by this section;
4.33(4) portable recording system data that are public personnel data under section
4.3413.43, subdivision 2, clause (5), are public; and
5.1(5) data that are not public data under other provisions of this chapter retain that
5.2classification.
5.3    (b) A law enforcement agency may redact or withhold access to portions of data
5.4that are public under this subdivision if those portions of data are clearly offensive to
5.5common sensibilities.
5.6    (c) Section 13.04, subdivision 2, does not apply to collection of data classified
5.7by this subdivision.
5.8(d) Any person may bring an action in the district court located in the county where
5.9portable recording system data are being maintained to authorize disclosure of data that
5.10are private or nonpublic under this section or to challenge a determination under paragraph
5.11(b) to redact or withhold access to portions of data because the data are clearly offensive to
5.12common sensibilities. The person bringing the action must give notice of the action to the
5.13law enforcement agency and subjects of the data, if known. The law enforcement agency
5.14must give notice to other subjects of the data, if known, who did not receive the notice from
5.15the person bringing the action. The court may order that all or part of the data be released to
5.16the public or to the person bringing the action. In making this determination, the court shall
5.17consider whether the benefit to the person bringing the action or to the public outweighs
5.18any harm to the public, to the law enforcement agency, or to a subject of the data and, if
5.19the action is challenging a determination under paragraph (b), whether the data are clearly
5.20offensive to common sensibilities. The data in dispute must be examined by the court in
5.21camera. This paragraph does not affect the right of a defendant in a criminal proceeding to
5.22obtain access to portable recording system data under the Rules of Criminal Procedure.
5.23    Subd. 3. Retention of data. (a) Portable recording system data that are not active
5.24or inactive criminal investigative data and are not described in paragraph (b) must be
5.25maintained for at least 90 days and destroyed according to the agency's records retention
5.26schedule approved pursuant to section 138.17.
5.27(b) Portable recording system data must be maintained for at least one year and
5.28destroyed according to the agency's records retention schedule approved pursuant to
5.29section 138.17 if:
5.30(1) the data document (i) the discharge of a firearm by a peace officer in the course
5.31of duty if a notice is required under section 626.553, subdivision 2, or (ii) the use of force
5.32by a peace officer that results in substantial bodily harm; or
5.33(2) a formal complaint is made against a peace officer related to the incident.
5.34(c) If a subject of the data submits a written request to the law enforcement agency
5.35to retain the recording beyond the applicable retention period for possible evidentiary or
5.36exculpatory use related to the circumstances under which the data were collected, the law
6.1enforcement agency shall retain the recording for an additional time period requested by
6.2the subject of up to 180 days and notify the requester that the recording will then be
6.3destroyed unless a new request is made under this paragraph.
6.4(d) Notwithstanding paragraph (b) or (c), a government entity may retain a recording
6.5for as long as reasonably necessary for possible evidentiary or exculpatory use related to
6.6the incident with respect to which the data were collected.
6.7    Subd. 4. Access by data subjects. (a) For purposes of this chapter, a portable
6.8recording system data subject includes the peace officer who collected the data, and any
6.9other individual or entity, including any other peace officer, regardless of whether the officer
6.10is or can be identified by the recording, whose image or voice is documented in the data.
6.11(b) An individual who is the subject of portable recording system data has access to
6.12the data, including data on other individuals who are the subject of the recording. If the
6.13individual requests a copy of the recording, data on other individuals who do not consent
6.14to its release must be redacted from the copy. The identity and activities of an on-duty
6.15peace officer engaged in an investigation or response to an emergency, incident, or request
6.16for service may not be redacted, unless the officer's identity is subject to protection under
6.17section 13.82, subdivision 17, clause (a).
6.18    Subd. 5. Inventory of portable recording system technology. A law enforcement
6.19agency that uses a portable recording system must maintain the following information,
6.20which is public data:
6.21(1) the total number of recording devices owned or maintained by the agency;
6.22(2) a daily record of the total number of recording devices actually deployed and
6.23used by officers and, if applicable, the precincts in which they were used;
6.24(3) the policies and procedures for use of portable recording systems required by
6.25section 626.8473; and
6.26(4) the total amount of recorded audio and video data collected by the portable
6.27recording system and maintained by the agency, the agency's retention schedule for the
6.28data, and the agency's procedures for destruction of the data.
6.29    Subd. 6. Use of agency-issued portable recording systems. While on duty, a peace
6.30officer may only use a portable recording system issued and maintained by the officer's
6.31agency in documenting the officer's activities.
6.32    Subd. 7. Authorization to access data. (a) A law enforcement agency must comply
6.33with sections 13.05, subdivision 5, and 13.055 in the operation of portable recording
6.34systems and in maintaining portable recording system data.
6.35(b) The responsible authority for a law enforcement agency must establish written
6.36procedures to ensure that law enforcement personnel have access to the portable recording
7.1system data that are not public only if authorized in writing by the chief of police, sheriff,
7.2or head of the law enforcement agency, or their designee, to obtain access to the data for a
7.3legitimate, specified law enforcement purpose.
7.4    Subd. 8. Sharing among agencies. (a) Portable recording system data that are not
7.5public may only be shared with or disseminated to another law enforcement agency, a
7.6government entity, or a federal agency upon meeting the standards for requesting access to
7.7data as provided in subdivision 7.
7.8(b) If data collected by a portable recording system are shared with another state or
7.9local law enforcement agency under this subdivision, the agency that receives the data must
7.10comply with all data classification, destruction, and security requirements of this section.
7.11(c) Portable recording system data may not be shared with, disseminated to, sold to,
7.12or traded with any other individual or entity unless explicitly authorized by this section
7.13or other applicable law.
7.14    Subd. 9. Biennial audit. (a) A law enforcement agency must maintain records
7.15showing the date and time portable recording system data were collected and the
7.16applicable classification of the data. The law enforcement agency shall arrange for
7.17an independent, biennial audit of the data to determine whether data are appropriately
7.18classified according to this section, how the data are used, and whether the data are
7.19destroyed as required under this section, and to verify compliance with subdivisions 7
7.20and 8. If the governing body with jurisdiction over the budget of the agency determines
7.21that the agency is not complying with this section or other applicable law, the governing
7.22body may order additional independent audits. Data in the records required under this
7.23paragraph are classified as provided in subdivision 2.
7.24(b) The results of the audit are public, except for data that are otherwise classified
7.25under law. The governing body with jurisdiction over the budget of the law enforcement
7.26agency shall review the results of the audit. If the governing body determines that there is
7.27a pattern of substantial noncompliance with this section, the governing body must order
7.28that operation of all portable recording systems be suspended until the governing body has
7.29authorized the agency to reinstate their use. An order of suspension under this paragraph
7.30may only be made following review of the results of the audit and review of the applicable
7.31provisions of this chapter, and after providing the agency and members of the public a
7.32reasonable opportunity to respond to the audit's findings in a public meeting.
7.33(c) A report summarizing the results of each audit must be provided to the governing
7.34body with jurisdiction over the budget of the law enforcement agency and to the
7.35Legislative Commission on Data Practices and Personal Data Privacy no later than 60
7.36days following completion of the audit.
8.1    Subd. 10. Notification to BCA. Within ten days of obtaining new surveillance
8.2technology that expands the type or scope of surveillance capability of a portable recording
8.3system device beyond video or audio recording, a law enforcement agency must notify the
8.4Bureau of Criminal Apprehension that it has obtained the new surveillance technology.
8.5The notice must include a description of the technology and its surveillance capability
8.6and intended uses. The notices are accessible to the public and must be available on the
8.7bureau's Web site.
8.8    Subd. 11. Portable recording system vendor. (a) For purposes of this subdivision,
8.9"portable recording system vendor" means a person who is not a government entity and
8.10who provides services for the creation, collection, retention, maintenance, processing, or
8.11dissemination of portable recording system data for a law enforcement agency or other
8.12government entity. By providing these services to a government entity, a vendor is subject
8.13to all of the requirements of this chapter as if it were a government entity.
8.14(b) A portable recording system vendor that stores portable recording system data in
8.15the cloud must protect the data in accordance with the security requirements of the United
8.16States Federal Bureau of Investigation Criminal Justice Information Services Division
8.17Security Policy 5.4 or its successor version.
8.18(c) Subject to paragraph (d), in an action against a vendor under section 13.08 for a
8.19violation of this chapter, the vendor is liable for presumed damages of $2,500 or actual
8.20damages, whichever is greater, and reasonable attorney fees.
8.21(d) In an action against a vendor that improperly discloses data made not public by this
8.22chapter or any other statute classifying data as not public, the vendor is liable for presumed
8.23damages of $10,000 or actual damages, whichever is greater, and reasonable attorney fees.
8.24    Subd. 12. Penalties for violation. In addition to any other remedies provided by
8.25law, in the case of a willful violation of this section a law enforcement agency is subject
8.26to exemplary damages of not less than twice the minimum, nor more than twice the
8.27maximum allowable for exemplary damages under section 13.08, subdivision 1.
8.28EFFECTIVE DATE.This section is effective August 1, 2016. Data collected
8.29before the effective date of this section must be destroyed, if required by this section, no
8.30later than 15 days after the date this section becomes effective.

8.31    Sec. 6. [626.8473] PORTABLE RECORDING SYSTEMS ADOPTION;
8.32WRITTEN POLICY REQUIRED.
8.33    Subdivision 1. Definition. As used in this section, "portable recording system" has
8.34the meaning provided in section 13.825, subdivision 1.
9.1    Subd. 2. Public comment. A local law enforcement agency must provide an
9.2opportunity for public comment before it purchases or implements a portable recording
9.3system. At a minimum, the agency must accept public comments submitted electronically
9.4or by mail, and the governing body with jurisdiction over the budget of the law enforcement
9.5agency must provide an opportunity for public comment at a regularly-scheduled meeting.
9.6    Subd. 3. Written policies and procedures required. (a) The chief officer of every
9.7state and local law enforcement agency that uses or proposes to use a portable recording
9.8system must establish and enforce a written policy governing its use. In developing and
9.9adopting the policy, the law enforcement agency must provide for public comment and
9.10input as provided in subdivision 2. Use of a portable recording system without adoption of
9.11a written policy meeting the requirements of this section is prohibited. The written policy
9.12must be posted on the agency's Web site, if the agency has a Web site.
9.13(b) At a minimum, the written policy must incorporate the following:
9.14(1) the requirements of section 13.825 and other data classifications, access
9.15procedures, retention policies, and data security safeguards that, at a minimum, meet the
9.16requirements of chapter 13 and other applicable law;
9.17(2) procedures for testing the portable recording system to ensure adequate
9.18functioning;
9.19(3) procedures to address a system malfunction or failure, including requirements
9.20for documentation by the officer using the system at the time of a malfunction or failure;
9.21(4) circumstances under which recording is mandatory, prohibited, or at the
9.22discretion of the officer using the system;
9.23(5) circumstances under which a data subject must be given notice of a recording;
9.24(6) circumstances under which a recording may be ended while an investigation,
9.25response, or incident is ongoing;
9.26(7) procedures for the secure storage of portable recording system data and the
9.27creation of backup copies of the data; and
9.28(8) procedures to ensure compliance and address violations of the policy, which
9.29must include, at a minimum, supervisory or internal audits and reviews, and the employee
9.30discipline standards for unauthorized access to data contained in section 13.09.
9.31EFFECTIVE DATE.This section is effective August 1, 2016, provided that a law
9.32enforcement agency using a portable recording system on that date must adopt the policy
9.33required under this section no later than January 15, 2017.

9.34    Sec. 7. LEGISLATIVE AUDITOR REVIEW.
10.1Beginning no earlier than January 1, 2019, the legislative auditor is requested to
10.2conduct a comprehensive review of compliance with the requirements of Minnesota
10.3Statutes, sections 13.825 and 626.8473. Data used for purposes of the review must
10.4include the results of the biennial audits required by Minnesota Statutes, section
10.513.825, subdivision 9, and may also include any other data that, in the judgment of the
10.6legislative auditor, assists in developing a complete understanding of any compliance or
10.7implementation issues resulting from enactment of those sections. The legislative auditor
10.8is requested to submit the results of the comprehensive review to the legislature no later
10.9than January 15, 2020.
"10.10Delete the title and insert:
"10.11A bill for an act
10.12relating to data practices; classifying portable recording system data; establishing
10.13requirements for the destruction of data; requiring written policies and
10.14procedures; imposing requirements on vendors; providing for damage awards;
10.15requiring a legislative auditor review;amending Minnesota Statutes 2014,
10.16section 13.82, subdivisions 6, 7, 15; Minnesota Statutes 2015 Supplement,
10.17section 13.82, subdivision 2; proposing coding for new law in Minnesota
10.18Statutes, chapters 13; 626.
"
11.1
We request the adoption of this report and repassage of the bill.
11.2
Senate Conferees:
11.3
.....
.....
11.4
Ron Latz
Susan Kent
11.5
.....
11.6
Bill Ingebrigtsen
11.7
House Conferees:
11.8
.....
.....
11.9
Tony Cornish
Brian Johnson
11.10
.....
11.11
Debra Hilstrom

700 State Office Building, 100 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155 ♦ Phone: (651) 296-2868 ♦ TTY: 1-800-627-3529 ♦ Fax: (651) 296-0569