Open Government Advocates Wary of Wisconsin’s New Police Video Redaction Law

Unfortunately, one of Wisconsin’s most prominent free speech advocates says, people we’re going to have to wait until police start charging outrageous fees to test the new law that allows police departments across the state to charge for police body camera footage.

Attorney Tom Kamenick, President and Founder of the Wisconsin Transparency Project, on Thursday released a report that looks into what he calls the “hasty and confusing” Act 253.

“This spring, the Wisconsin Legislature passed a new law allowing law enforcement agencies to charge record requesters for redacting video and audio recordings in many situations. The law effectively allows police departments to be paid twice for the same work – first by taxpayers through the ordinary budgeting process and then again by journalists and others trying to shed light on government operations,” Kamenick wrote in his analysis. “The law, 2023 Wisconsin Act 253, is poorly written and was hastily passed on a bipartisan basis despite significant objections from Wisconsin media and other government transparency advocates.”

The law was written to allow police departments to cover the cost of editing-out sensitive or crucial-for-evidence pieces of body camera footage, dash camera video, and security camera video. But Kamenick says the law also allows police departments to edit voicemails before releasing them to the public.

Most concerning, Kamenick wrote in his analysis, are the costs, potential restrictions, and fines that are allowed under the new law.

“The statute refers only to the ‘cost of redacting,’ not the cost of ‘reviewing.’ If, for example, it takes 10 hours to watch a video to determine what needs to be redacted, and 1 hour to perform the actual redactions, only the hour can be charged, he explained. “The key difference is whether the review time is a ‘direct’ cost of redaction, as the reviewing process is ‘necessary’ and creates ‘actual’ costs. This language may be ambiguous, but any ambiguity should be resolved in favor of access.”

He is also concerned about the law’s limits on who can make requests, and how many they can make.

“An institutional requester must not have previously made 10 audio or video requests to the same government authority in the same calendar year," the analysis notes. "An individual requester, on the other hand, is subject to stricter requirements. As well as being limited to 10 requests per year, per law enforcement agency, an individual must certify that they will not use the requested records for 'financial gain' (other than an award of civil damages). False certifications subject the requester to an outrageous $10,000 fine, regardless of whether the error was accidental or intentional. By comparison, government officials who violate the Open Records Law are subject to significantly lower fines of 'not more than $1,000,' and only if they 'arbitrarily or capriciously' delay or deny a record request.

Kamenick ends his analysis with a worrying conclusion.

“Act 253 was poorly conceived. It was written confusingly. It permits law enforcement agencies to be paid twice for the same work (first by taxpayers and again by requesters). It leaves vital questions unanswered. It places unreasonably high penalties on requesters who make simple mistakes,” Kamenick added. “Until courts begin to interpret its provisions or the Attorney General issues formal advice, requesters and custodians alike have little guidance. Everyone should keep in mind, however, that the Open Records Law is meant to be applied liberally in a way that favors access and helps provide people with the ‘greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.’"