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The District does not want you to see police body camera footage of a 2017 traffic stop and arrest of Councilmember Trayon White.
D.C. Attorney General Karl Racine argues in court documents that White’s expectation of privacy outweighs the public’s right to view the footage of an interaction between a sitting councilmember and a District police officer on a public street. The AG’s office declined to comment on the pending lawsuit.
Mayor Muriel Bowser’s office has weighed in as well. A letter from the Mayor’s Office of Legal Counsel denying a Freedom of Information Act request submitted by the Washington Post says that White has a “strong privacy interest in not being associated unwarrantedly with alleged criminal activity.”
White said Friday that he has no problem with the District releasing the footage.
“I’m intrigued that the Wash Post is spending money on lawyers about this situation,” he says via text message. “I see it’s an agenda. D.C. should just go ahead and release the footage.”
The fight over access to the body camera video is playing out in a lawsuit the Post filed in August 2018. The case cleared an initial hurdle early last week when D.C. Superior Court Judge Hiram E. Puig-Lugo rejected the District’s attempts to get the lawsuit thrown out. But the judge stopped short of ordering the footage to be released. The next hearing is scheduled for Feb. 2.
“The residents of the District of Columbia have a right to know, not just whether the Councilmember sought preferential treatment, but whether the complaints about MPD that he has raised over time manifested during the traffic stop on June 27, 2017,” Puig-Lugo writes in his opinion.
The case has implications for the future of public access to police body camera footage in general, as well as for White in his role as a councilmember.
Attorneys and experts in open government law say the case is the first to test the District’s FOIA law as it pertains to body camera footage. The outcome could more clearly define what footage must be released and what footage police can keep from the public eye.
“I don’t know of any other Superior Court case about privacy in body worn camera situations,” says Fritz Mulhauser, a lawyer familiar with FOIA issues, who sits on the board of the D.C. Open Government Coalition but spoke with City Paper in an individual capacity. “MPD’s definition of privacy with regard to body worn cameras hasn’t been tested previously in court.”
The Post sees the footage as an essential piece of information about a D.C. lawmaker who has authority over MPD. The paper declined to comment for this article while the case is pending.
The “public has an interest in knowing whether Councilmember White may have attempted to take advantage of his position of authority—or whether he received favorable treatment—during his stop and arrest,” the Post says in court documents.
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It was around 11:30 p.m. on June 29, 2017 when an MPD officer stopped White for driving with his headlights out on Pennsylvania Ave. NW near 13th St. NW, less than a block from his office at the Wilson Building.
White told the officer that he left his driver’s license in his other vehicle and instead offered his D.C. government ID card, according to the officer’s account of the interaction.
The officer then found that White’s license was suspended and arrested him. The charge for driving on a suspended license was dropped in August 2018, according to the court’s docket available online.
Less than four months after White’s suspended license charge was dropped, he introduced legislation aimed at restricting the city’s ability to suspend drivers’ licenses for low income people with ticket debt “apparently without disclosing that he himself had been arrested and charged with driving on a suspended license,” according to the Post’s lawsuit. The bill passed unanimously and currently awaits Bowser’s signature.
The Post cites examples of White’s police criticism dating back to his time as an elected member of the State Board of Education to bolster its case for the release of the body camera footage. Such footage would allow the public to “evaluate the propriety of the MPD’s stop and arrest of Councilmember White, and whether there is merit to his accusations of politically motivated policing,” the newspaper argues in court documents.
While on the State BOE in 2011, White was arrested during a protest outside the Woodland Terrace public housing complex, according to the lawsuit. At that time, White issued a statement saying MPD targets him because he speaks out against police misconduct.
“Police follow me all the time even when I’m driving with my family. I was assaulted by MPD in 2006 and sued DC. Ever since then I have been a target by DC police. I have a great relationship with MPD senior officials who really cares. However, the vice unit aka ‘jump outs’ is unethical and get away with illegal activities at the expense of people lives. This is one of many incidents. I have no criminal record, except protesting at the White House. I feel disrespected and targeted. I have been labeled the leader for my generation, especially for Ward 8. That is one of the main reasons the people arrested me.”
In 2014, White sued the District government for violations of his civil rights. The lawsuit says an officer slammed the trunk of a car on White’s head and shoulders causing him to be hospitalized. The case was resolved out of court after he took office as a councilmember.
The Post notes at least two other incidents where White documented his interaction with police as well as police interactions with others in videos posted and streamed to Facebook. With one video, which shows officers who had stopped two teenagers, White wrote: “While I understand they are trying to get guns off the streets. This is illegal and unethical,” according to court documents.
To be clear, the newspaper is not asserting that White’s interaction with the officer in 2017 was tainted by his political position. That’s what they’re trying to find out.
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For open government advocates, this case is another example of the District’s opacity with body camera footage.
Back in 2015, when the city was shaping its body camera policy, Bowser initially wanted to make all police body camera footage exempt from public disclosure, in part because of the anticipated expense of producing the footage and concerns about personal privacy. Ultimately, the Council rejected the mayor’s strict position and the two sides came to a compromise that exempts some footage from disclosure.
Since then, however, open government attorneys say D.C. has taken a broad definition of what footage qualifies for exemption or redaction.
“MPD has been notoriously bad about this,” says Bob Becker a lawyer and member of the D.C. Open Government Coalition, speaking in an individual capacity. Becker points to two cases to illustrate his point.
The first involves Fox5’s efforts to get footage of drunk driving arrests used as evidence in court. The redacted videos that MPD provided obscured officers’ and suspects’ identities beyond what would have been shown in court, Becker says, adding that “they obliterated everything meaningful in [those videos].”
In the second, more recent example, MPD’s FOIA office returned an Advisory Neighborhood Commissioner’s request for body cam footage with a $5,000 bill to cover the cost of redactions. Denise Rucker Krepp, the neighborhood commissioner, requested body camera footage of an encounter between officers and three young boys in a Capitol Hill neighborhood. Police have said the boys were accused of threatening a man with a knife, but were never charged, Fox5 reported.
The encounter includes 229 minutes of video. The approximately $5,000 bill comes to about $23 per minute.
Krepp asked MPD to waive the fee, and they responded that now they won’t be releasing the footage at all because the subjects are minors.
For Mulhauser, the open government lawyer and advocate, the $5,000 bill raises more concerns about how police are choosing to interpret the law that allows them to redact body camera footage.
The D.C. FOIA allows a law enforcement agency to withhold records (including body camera footage) if the release would be an “unwarranted invasion of personal privacy.” But how does the department define “unwarranted?” Those rules are not publicly available, according to Mulhauser’s blog post on the D.C. Open Government Coalition’s website. MPD did not immediately respond to a request for comment. We’ll update this post if we hear back.
The court battle over footage of White’s interaction with the MPD officer doesn’t yet have implications for the department’s redaction policy. But, Mulhauser notes, if MPD elects to release the footage with redactions, and the Post decides to challenge the department’s decision, the redaction process could become much more transparent.