A government of the people, by the people, and for the people SHOULD operate from the presumption that its actions are open to those people. But government is more likely to indicate it fears the people and tends to keep things secret.
There’s probably not a lot of objection to the first sentence. The second sentence has a certain two-way paranoia about it that might be more difficult to accept.
But the two sentences indicate a collision of the ideal with the practical and we’re seeing them played out—again—with legislation in Missouri and in other states on a topic that has emerged in recent years: police body cameras.
At this writing, the legislature has four bills before it instituting the use of body cameras by police officers when they’re on duty. In three of the bills, the images captured by the cameras are to be kept secret by the police agency unless a citizen can prove to a judge that they should be made public. It’s not a new standard. The state open records/open meetings law has a lengthy list of exemptions for certain records, particularly police records.
Those of us who lined up years ago in favor of the so-called Sunshine Law and those who live by it and with it today have never been comfortable with the exemptions written into it even while admitting the difficulties in reconciling free press/fair trial issues. Likewise, it’s a conflict between the general public’s right to know and the general public’s right to privacy. It’s hard to believe a lasting solution to this matter of competing constitutional and public interests will ever be found. That’s why courts have to consider the proper weight of arguments of the two sides in specific instances and decide which argument moves the needle on the scale of justice one way or the other.
There is a precedent of a sort that comes readily to mind. As we recall, Jefferson City television station KRCG asked the Cole County Sheriff in 1997 for county jail security video tapes showing the booking of a state representative picked up for DWI. The sheriff didn’t want to release the images and filed a lawsuit to protect his position, naming the station as the defendant. A circuit judge ruled the tape was not a public record. A state appeals court upheld that ruling but sent the matter back to the circuit judge to calculate how attorney fees should be calculated. The state supreme court intervened at that point.
The state Supreme Court ruled the videotape WAS a public record and ordered the sheriff to pay the attorney fees and other costs of the television station since the station was the requester of the records. A pretty readable analysis of the case can be found at http://scholarship.law.missouri.edu/mlr/vol66/iss2/5. That’s Missouri Law Review, 2001, issue two, article five. Author Michele L. Mekel wrote that the court’s ruling eliminated “the possibility that a government agency will employ its resources to force an economically weaker record seeker to forego his or her right of access to public records due to the costs associated with being forced to defend in court.”
Two bills introduced in the Senate, however, provide that the person seeking the disclosure might have to pay the costs and attorney fees of the government agency if the citizen loses. A bill introduced in the House contains the same provision. So a citizen or a media organization wanting to get the video from police cameras, under the proposed laws, would get stuck with attorney fees if they lose. The situation recalls the story of a sixteenth-century British livery stable owner, Thomas Hobson, who told people visiting his business that they if they didn’t take the horse in the stall closest to the door, they couldn’t get a horse. We call that a “Hobson’s Choice” today. As Frank Sinatra sang it, “All or Nothing at All.”
So the proposed bills appear to lean toward government forcing citizens into a Hobson’s Choice that the state Supreme Court seems to have addressed in the KRCG-sheriff case.
A similar issue is brewing in Indiana where the head of the Indiana Association of Chiefs of Police, Jason Dombrowski, says police would be reluctant to give up the body camera footage because of, among other things, the potential costs of open records lawsuits could lead police agencies to not use the cameras. On the other side is the Chairman of the Indiana Broadcasters Association, Dave Crooks, who thinks that “most people would have never seen the videos that have been released out of Chicago involving the police incident shootings” if Illinois had the law being considered in Indiana.
And we can’t ignore the issue of harassment. Some will argue public release of body cam footage will help curtail what they see as police harassment of private citizens. On the other side is a concern that the blanket ruling that all body camera video is a public record can produce citizen harassment of police in one way or another.
But in a government of the people, should a person who thinks an officer has abused him or her in a traffic stop have to risk paying the police department’s attorney fees if the motorist wants to see the body cam footage? Or, should police departments have to face lawsuits by motorists who are angry about being stopped and seek revenge by filing a lawsuit?
Legislators are asked to balance those issues.
The state laws—several touch on assumptions that government shall operate in an open manner—generally say openness will rule UNLESS otherwise provided by law. That’s why the introduced bills include the loser-pays language (that the Missouri Supreme Court ruled many years ago could tilt the scales against the information seeker).
Should the language in law say government records will be open unless the agency takes action to defend its decision to withhold them—and the agency shall bear the costs of defending its position, win or lose. All the citizen would have to do is notify the agency that the citizen disagrees with the position and asks for arbitration through the court system. If the agency wins, it’s a cost of doing business and the citizen is not liable for the agency legal costs. If the agency loses, it should pay any costs that the citizens have borne in questioning that policy. If government of the people, by the people, and for the people really means anything, this might be worth considering.
Admittedly, this could be called “the lawyers’ full employment” position. But in a country that supposedly believes in a system that puts the people above the government, the issue is worth discussion. And if we look at history, we find ample examples the political system and society will adjust, accommodate, and move on when authority over people is adjusted to lean toward the people—as long as the people act responsibly.
And that’s the balance.