Your Right to Know: Redaction costs threaten police video access

The bill moved with lightning speed. It was introduced last December, passed the state Senate in January and the Assembly in February, and was signed into law by Gov. Tony Evers in March. 2023 Wisconsin Act 253 allows police and corrections officials to charge some requesters of video and audio recordings for the cost of redaction — that is, blurring out certain information.

Members of the media and others objected, noting that the cost of redactions can easily run into hundreds and even thousands of dollars, making them unaffordable. The ACLU of Wisconsin warned this “could allow law enforcement to shirk their obligation to be publicly accountable, and further erode the belief that police protect communities rather than only their own.”

Just prior to the state Assembly’s vote, lawmakers approved a bill amendment that exempted videos of police-involved shootings as well as requesters “directly involved in the event” captured on video. It also allowed up to 10 requests per year without redaction charges for those who stipulate in writing that they “will not use the audio or video content for financial gain.” The bill as amended passed the Assembly 94-3.

Problem solved? Not really. Questions were subsequently raised about what this language means. Does a request for six videos count as one request or six? If multiple parties ask for the same video, do they split the cost?

But the gravest concern was over the bill’s reference to “financial gain.” Does this mean any media outlet that still manages to make money? It’s an important question, because the new law says anyone who falsely denies being out for financial gain can be fined $10,000 per violation.

State Sen. Jesse James, the bill’s chief sponsor, seemed flummoxed when asked, in a WMTV report that aired March 1, whether it applied to news media. “I don’t have an answer for you,” James said. “We try to do our best to have the legislation 100 percent right, but that doesn’t always happen.” He later affirmed that journalists are not exempt.

The cold, hard reality of interpretation was driven home last month when Alice Herman, a volunteer reporter for the nonprofit news outlet Tone Madison, requested video taken by UW-Madison police officers who shut down a student protest encampment on May 1. Herman was told there would be no exemption and threatened with a $10,000 fine if she signed the form disclaiming an interest in financial gain and then used it for Tone Madison.

UWPD spokesperson Marc Lovicott told me his department is “working through challenges” with the new law and hoping to receive guidance from the state’s Office of Open Government, part of the Department of Justice. “It’s a broadly worded law that’s really untested. We’re all trying to figure it out.”

Lovicott noted that Tone Madison, like other news organizations, runs ads on its website, “so they’re technically taking money in. Is that financial gain?” He said redacting video footage over a period of several hours from the 30-plus officers at the scene, all equipped with body cameras, is “an exorbitant amount of work for our two-person records staff,” for which the department would like to recoup at least some of the associated costs.

Scott Gordon, editor-in-chief and publisher of Tone Madison, wrote a deeply researched article on the new law, which he said leaves “the door open to a broad interpretation that could ensnare all manner of requesters working in the public interest.”

If media outlets and civic groups are priced out of obtaining police video, one of the primary reasons for spending millions of tax dollars to outfit officers with cameras will have been undermined.

This bill, as written, should never have been passed and signed into law. It needs to be clarified, if not repealed.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a nonprofit, nonpartisan group dedicated to open government. Bill Lueders is the group’s president.