SF 86

3rd Engrossment - 89th Legislature (2015 - 2016) Posted on 05/27/2015 08:23am

A bill for an act
relating to data practices; classifying data and providing procedures related
to automated license plate readers and portable recording systems; 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 new text begin or as private
or nonpublic under subdivision 32 new text end 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:

new text begin Subd. 31. new text end

new text begin Automated license plate reader. new text end

new text begin (a) As used in this subdivision,
"automated license plate reader" means an electronic device mounted on a law
enforcement vehicle or positioned in a stationary location that is capable of recording data
on, or taking a photograph of, a vehicle or its license plate and comparing the collected
data and photographs to existing law enforcement databases for investigative purposes.
Automated license plate reader includes a device that is owned or operated by a person
who is not a government entity to the extent that data collected by the reader are shared
with a law enforcement agency.
new text end

new text begin (b) Unless the data are public under subdivision 2, 3, or 6, or active criminal
investigative data, the following data collected by an automated license plate reader are
private data on individuals or nonpublic data:
new text end

new text begin (1) license plate numbers;
new text end

new text begin (2) date, time, and location data on vehicles; and
new text end

new text begin (3) pictures of license plates, vehicles, and areas surrounding the vehicles.
new text end

new text begin (c) Notwithstanding section 138.17, data collected by an automated license plate
reader must be destroyed:
new text end

new text begin (1) 90 days from the time of collection, if the data are classified under paragraph
(b), provided that if the law enforcement agency has received a written request that the
data be preserved from an individual who is the subject of a pending criminal charge or
complaint that includes the case or complaint number and a statement that the data may be
used as exculpatory evidence, the data must not be destroyed until the criminal charge
or complaint is resolved or dismissed; or
new text end

new text begin (2) upon request of a program participant under chapter 5B, at the time of collection
or upon receipt of the request, whichever occurs later, unless the data are active criminal
investigative data.
new text end

new text begin Data on a request of a program participant under clause (2) are private data on individuals.
If data collected by an automated license plate reader are shared with another law
enforcement agency, the agency that receives the data must comply with the data
destruction requirements of this paragraph.
new text end

new text begin (d) A law enforcement agency that installs or uses an automated license plate reader
must maintain a log of its use, including:
new text end

new text begin (1) specific times of day that the reader actively collected data;
new text end

new text begin (2) the aggregate number of vehicles or license plates on which data are collected for
each period of active use and a list of all state and federal databases with which data that
were collected were compared unless the existence of the database itself is not public;
new text end

new text begin (3) for each period of active use, the number of vehicles or license plates in each of
the following categories where the data identify a vehicle or license plate that has been
stolen, a warrant for the arrest of the owner of the vehicle or an owner with a suspended or
revoked driver's license, or are active investigative data; and
new text end

new text begin (4) for a reader at a stationary location, the location at which the reader actively
collected data.
new text end

new text begin Data in a log required under this paragraph are public.
new text end

new text begin (e) In addition to the log required under paragraph (d), the law enforcement agency
must maintain records showing the date the data were collected and the applicable
classification of the data. The law enforcement agency shall arrange for an independent,
triennial audit of the records to determine whether data currently in the records are
classified and destroyed as required under this subdivision and to verify compliance with
paragraph (f). Data in the records required under this paragraph are classified as provided
in paragraph (b). The results of the audit are public.
new text end

new text begin (f) A law enforcement agency must comply with sections 13.05, subdivision 5, and
13.055 in the operation of automated license plate readers and access to the data. The
responsible authority for a law enforcement agency must establish written procedures to
ensure that law enforcement personnel have access to the data 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 data collected by an automated license plate reader for a legitimate,
specified, and documented law enforcement purpose. Access to the data must be based
only on a reasonable suspicion that the data are pertinent to a criminal investigation,
and a request for access must include a record of the factual basis for the request and
any associated case number, complaint, or incident that is the basis for the request.
Notwithstanding subdivision 24, a law enforcement agency may share data that are
classified under paragraph (b) with another law enforcement agency only if that agency
complies with the requirements of this paragraph.
new text end

new text begin (g) Within ten days of the installation or current use of an automated license plate
reader or the integration of automated license plate reader technology into another
surveillance device, a law enforcement agency must notify the Bureau of Criminal
Apprehension of any fixed location of a stationary automated license plate reader or other
surveillance device with automated license plate reader capability and, if applicable, if
the agency uses any other automated license plate reader or any other type of electronic
device or technology that collects data on motor vehicles or occupants that may be used
for identification purposes or for tracking activities of motor vehicles or individuals. The
Bureau of Criminal Apprehension must maintain a list of law enforcement agencies using
automated license plate readers, including locations of any fixed stationary automated
license plate readers or other surveillance devices with automated license plate reader
capability. Except to the extent that the bureau, upon request from the responsible authority
of the law enforcement agency, determines that the location of a specific reader is security
information, as defined in section 13.37, this list is accessible to the public and must be
available on the bureau's Web site. In addition, the law enforcement agency must maintain
a list of the current and previous locations, including dates at those locations, of any fixed
stationary automated license plate readers or other surveillance devices with automated
license plate reader capability used by the agency, which is accessible to the public.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin 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 later than 15 days after the date this section becomes effective.
new text end

Sec. 3.

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

new text begin Subd. 32. new text end

new text begin Portable recording systems. new text end

new text begin (a) As used in this subdivision:
new text end

new text begin (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;
new text end

new text begin (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
new text end

new text begin (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.
new text end

new text begin 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.
new text end

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

new text begin (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
new text end

new text begin (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.
new text end

new text begin 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.
new text end

new text begin (c) Notwithstanding paragraph (b):
new text end

new text begin (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);
new text end

new text begin (2) portable recording system data that are public personnel data under section
13.43, subdivision 2, paragraph (a), clause (5), are public; and
new text end

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

new text begin (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.
new text end

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

new text begin (1) the total number of devices owned or maintained by the agency;
new text end

new text begin (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;
new text end

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

new text begin (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.
new text end

new text begin (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.
new text end

new text begin (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:
new text end

new text begin (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
new text end

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

new text begin (h) If a subject of the data submits a written request to the law enforcement agency to
retain portable recording system data 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.
new text end

new text begin (i) Notwithstanding paragraphs (f) to (h), a government entity may retain portable
recording system data 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.
new text end

new text begin (j) 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.
new text end

new text begin (k) 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.
new text end

new text begin (l) A law enforcement agency must not use a portable recording system unless
the agency has adopted and enforces a written policy governing the use and operation
of portable recording systems and standards and procedures for complying with this
subdivision. At a minimum, the policy must:
new text end

new text begin (1) establish strict procedures governing access to the data to ensure that the data are
not edited, altered, or prematurely destroyed, except to the extent that redaction of data is
required under this subdivision;
new text end

new text begin (2) include guidelines or standards governing the circumstances under which a
portable recording system must or may be activated or deactivated and whether notice of
use is required; and
new text end

new text begin (3) provide for training of peace officers for purposes of complying with this
subdivision and the policy.
new text end

new text begin (m) 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.
new text end

new text begin (n) A law enforcement agency must not obtain or use a new surveillance technology
that expands the type or scope of surveillance capability of a portable recording system
device beyond video or audio recording unless the local governing body with jurisdiction
over the law enforcement agency has authorized its use.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin 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 the effective date. Chief law enforcement officers
shall adopt the policy under paragraph (l), by January 15, 2016.
new text end

Sec. 4.

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

new text begin Subd. 33. new text end

new text begin Portable recording system vendor. new text end

new text begin (a) For purposes of this subdivision,
"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

Sec. 5.

new text begin [626.8472] AUTOMATED LICENSE PLATE READER POLICY.
new text end

new text begin Subdivision 1. new text end

new text begin Statewide model policy. new text end

new text begin The board, in consultation with
representatives of law enforcement agencies and the commissioner of administration shall
adopt and disseminate a model policy governing the use and operation of automated
license plate readers and standards and procedures for compliance with section 13.82,
subdivision 31. The board shall seek and consider comments of members of the public
when adopting the policy.
new text end

new text begin Subd. 2. new text end

new text begin Agency policies required. new text end

new text begin The chief law enforcement officer of every
state and local law enforcement agency shall establish and enforce a written policy
governing automated license plate readers that is identical or substantially similar to the
model policy adopted by the board. A law enforcement agency that does not comply with
this subdivision must not use an automated license plate reader.
new text end

Sec. 6. new text begin EFFECTIVE DATE; APPLICATION.
new text end

new text begin (a) The Board of Peace Officer Standards and Training shall adopt the model policy
under section 5, subdivision 1, by October 1, 2015.
new text end

new text begin (b) Chief law enforcement officers shall adopt the policy under section 5, subdivision
2, by January 15, 2016.
new text end