A terrible bill that deserves a veto
This being national Sunshine Week, it’s ironic that the Indiana legislature has sent Gov. Mike Pence at least two bills that fly in the face of the public’s right to know. I wrote about one of them, a bill addressing the records of private university police departments, last week.
Now it’s time for a look at the other bill, which concerns the release (or, more accurately, non-release) of police video recordings. The bill is being held out as a necessary step for the legislature in addressing a new technology and, in its final form, as a good compromise between privacy and public access.
In fact, it is neither of those things.
Consider what Indiana’s existing Access to Public Records Act already says about public records. There are a number of pertinent facts here. One, records are defined exhaustively, so video recordings are covered. Two, police already have discretion to withhold from the public records they designate as investigatory material. Three, if a police agency refuses to release a record, a requestor ultimately has to go to court to get it. Four, the agency has the burden of proving that it has the right to withhold the record.
In other words, if police want to release a recording, they can do so now. If there’s an investigatory reason for not releasing a recording, they have the discretion to withhold now.
So there’s no reason for this bill unless you want to make it either more or less difficult to get the recordings. And this bill makes it more difficult. The most substantive portion of the legislation removes police recordings from the provisions of the law that allow for penalties for public officials and attorney fee awards to requestors who have to sue to get access to records.
That means there is no penalty for a police department that willfully violates the Access law. And even if you can prove that and win a court order that a recording must be released, you can’t get the department to pay your legal fees. Both of those are provisions that now apply to every other public record.
Why the extra layers of protection for officials when it comes to these records? There’s no clear rationale. But the effect of this proposed legislation is to put them out of reach rather than allow for more meaningful public monitoring of police conduct.
In short, this is a major blow to open government.
I can’t think of a better way to mark Sunshine Week than for Gov. Pence to veto this terrible bill.