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| Time is money |
By Jacob Oblak
A citizen named Reed Doyle witnesses an incident in a public park involving Burlington Police officers, and he becomes concerned about the officers’ use of force. So Mr. Doyle does two things. He makes a citizen complaint to the police directly, and he asks to view the police’s body camera footage of the incident.
The police chief tells Mr. Doyle his request is going to take hours upon hours of staff time to make sure the police have redacted all the stuff that other laws require them to redact, so the police will be charging Mr. Doyle for their time. It’ll be hundreds of dollars. The police chief requires a deposit before he’ll begin making the redacted copy of the video. The police chief’s demand is based on the public records act, which says a department can charge someone for their time “associated with a request for a copy of a public record.”
Mr. Doyle declines to pay and sues the police, alleging they have effectively denied him his request to “inspect” the video by requiring him to pay hundreds of dollars. Everybody agrees Mr. Doyle’s request forced the police to make a redacted copy, and everybody agrees Mr. Doyle doesn’t want to keep the copy, only to inspect it.
SCOV then has to answer a rather expensive question: has Mr. Doyle made a request for a copy of a record? If yes, Mr. Doyle has to pay up. If no, the City has to eat the cost. This question is worth several hundred dollars.
As always, the SCOV majority begins with the plain language of the public records law, which appears to differentiate between requests to inspect records and requests to get copies. The police can charge for time spent responding to a request for a copy, but not for time spent responding to a request to inspect a copy.
So the crucial focus, the majority says, is what was requested, not what the department had to produce. Besides, the whole point of the public records act is to enable concerned citizens like Mr. Doyle to oversee the government’s actions, so where there is any ambiguity in the law, SCOV will usually come out in favor of making public oversight of government easier, not harder. Lastly, the majority points out that public policy decisions are for the Legislature, not the Court. The Court only interprets the law.
This is kind of like when I go to the bar and there’s a sign that says “free samples.” After 35 samples, the bartender is going to try to charge me full freight for a beer despite the very clear “free samples” sign above the door. Or maybe it’s not like that at all. We’ll have a conversation about false advertising at watering holes some other time.
Justices Eaton and Carroll dissent, also starting with the plain language of the law. The law allows agencies to charge for their time spent producing a copy, and Mr. Doyle forced the police to make a redacted copy. The crucial focus for the dissenting Justices is on what the police had to produce—a copy—not on the particular phrasing Mr. Doyle used when making his request.
If it’s just a matter of phrasing, then any citizen can avoid the fees by just requesting to “inspect” the video, forcing police to create a redacted copy. If different citizens later ask for the already-created copy, can they be charged for the original time creating the copy? And if somebody asked the police to inspect ALL of the police’s body camera footage, the police are stuck having to complete gigantic requests that takes days’ worth of staff time redacting, for free.
In the end, both the majority and dissent agree that the stakes are high because overseeing government officers is something the public needs to be able to do. There are competing public policy interests at play here and that the Legislature can change the law if it decides to.
The outcome: the police department can’t charge Mr. Doyle for their time creating the redacted copy of the video.
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