ACLU has ‘friends’ in its fight to view Burlington police bodycam footage

The American Civil Liberties Union has a friend in Vermont’s secretary of state as well as several other organizations as it argues to the state’s highest court that a Burlington man should be able to view, free of charge, body camera footage from the arrest of a minor.

Secretary of State James Condos filed an amicus brief, or “friend of the court” brief, with the Vermont Supreme Court in support of the ACLU of Vermont’s bid to “inspect” the body camera footage.

“Public records are the cornerstone of transparency in government,” Condos said Tuesday.

“I joined the lawsuit not because of anything specific in this case except that I feel so strongly about the free and open inspection of records as one of the most important principles of effective, accountable government.”

Condos, who has been secretary of state since 2011, said he has never filed such an amicus brief in a case before the Vermont Supreme Court.

“This could setback transparency for decades if this decision is held up,” he said of the ruling that is under appeal by the ACLU of Vermont. “I understand there is a burden, but that burden rightfully falls on government.”

The ACLU of Vermont is representing Reed Doyle, who is seeking access to police body camera footage “of alleged use-of-force and threats by Burlington police against children of color in 2017.”

Doyle was denied the ability to view the footage unless he paid hundreds of dollars to the Burlington Police Department, according the ACLU.

The civil liberties organization, in its written brief submitted last week to the Vermont Supreme Court, argues that Doyle shouldn’t have to pay anything to view, or “inspect,” the body camera footage, a public record.

“The statute in question and all of the legislative history that we’ve seen in the case says that every person who wants to inspect public records should be able to do so for free in the state of Vermont and that’s what our client is seeking our case,” Jay Diaz, an ACLU of Vermont staff attorney, said Tuesday.

The ACLU also points to 2011 decision by Judge Geoffrey Crawford, then sitting in Washington Superior Court, in a public records case. In that matter, according to Crawford’s ruling, “the statute provides no authority for an agency to impose a charge for inspection of documents.”

In addition to Condos’ filing, other organizations have signed onto amicus briefs in support of Doyle and the ACLU of Vermont, including the Conservation Law Foundation and Vermont Natural Resources Council.

In addition, the The Vermont Journalism Trust, Vermont Press Association, and the New England First Amendment Coalition will be filing an amicus brief later this week. The Vermont Journalism Trust is VTDigger’s parent organization.

The case stems from an incident on July 17, 2017, near Burlington’s Roosevelt’s Park. That’s when Doyle was walking his dog and saw police officers in a confrontation with a group of youths.

Before Doyle arrived, one youth had been arrested for disorderly conduct, and others were arguing with police about that arrest.

Doyle says he heard officers threaten to use pepper-spray on those youth, and also saw an officer push a boy who was backing away. When the boy protested being pushed, he was arrested for disorderly conduct.

Doyle immediately raised concerns with the officers and later filed a complaint claiming excessive force.

Police initially refused to provide Doyle footage, and after the ACLU filed an appeal on Doyle’s behalf, city Police Chief Brandon del Pozo agreed to provide a redacted version if Doyle paid the city $220.50 for staff time.

Doyle filed a lawsuit seeking to require the city to make the video available at no charge. Judge Mary Miles Teachout in August denied Doyle’s claim, ruling, “there is no overarching distinction in the PRA (public records act) between seeking a copy of a record and seeking to inspect a record.”

The ACLU of Vermont, on Doyle’s behalf, then appealed to the Vermont Supreme Court.

“To prevent BPD from burdening Mr. Doyle’s exercise of his right to free and open inspection of records necessary to hold public servants accountable for their actions,” the brief stated, “the Court must reverse the trial court’s flawed conclusion and order BPD to allow for inspection of the records at no cost.”

Del Pozo, Burlington’s police chief, said Tuesday, that his department’s decision regarding the body cam footage is about striking a balance between protecting people’s privacy and government transparency.

He also said the ACLU model body camera policy calls for such footage to be redacted to protect privacy. Since that requires making a copy of the video to make redactions, the chief said Doyle’s request allows for the department to recoup that cost under the public records act.

“The decision made by Judge Teachout affirms that a person cannot inspect video footage without the government first copying and redacting it as required by Vermont law,” the police chief said. “And the law further allows the cost of producing such copies to be recovered by the government on behalf of its taxpayers.”

He said the video requires redactions because it contains images of minors, some who were never charged with a crime and others who were sent to a court diversion program.

“All of their identities have to be redacted,” the police chief said of the minors. “I’d prefer in the future to have a low cost and an effective means of redaction that would make this more of a moot point, but that is not an option right now.”

Del Pozo added that an internal investigation of the incident did take place and it was determined the officers acted within the department’s “guidelines.”

Diaz, of the ACLU, said the argument that the police department has to make a copy to allow the redactions is a “red herring.”

“There is plenty of software available to redact footage very easily,” Diaz said, adding, “It’s their burden to manage their records in a way that people can inspect without cost.”

He added, “If they are a transparent public agency they will provide public records to people to inspect without charge.”

The police department is expected to file its own brief to the Vermont Supreme Court. Oral arguments will eventually be heard before the five-member panel.

No date for when that oral argument will take place was immediately available.

Read the story on VTDigger here: ACLU has ‘friends’ in its fight to view Burlington police bodycam footage.