Has Rep. Mark Buesgens' privacy been violated by Wednesday's release of video of his field sobriety test by Wright County authorities?
State Rep. John Lesch, former state representative Duke Powell, and I have been having a conversation about this on Twitter and the jury is still out... somewhat.
Powell contacted Wright County authorities in the belief that releasing the tape violates the state's Data Practices Act. The authorities said the tape could be released because their investigation is complete, according to Powell.
An inspection of the law doesn't answer the question because video is not mentioned. Here are the relevant parts of the law. It states that material used in an arrest is confidential while the case is "active."
Investigative data collected or created by a law enforcement agency in order to prepare a case against a person, whether known or unknown, for the commission of a crime or other offense for which the agency has primary investigative responsibility is confidential or protected nonpublic while the investigation is active.
Usually, law enforcement authorities stymie journalists' attempts to get information by claiming an investigation is "active." This particular controversy stems from the assertion that this one isn't.
A criminal investigation becomes "inactive" (that is, the video could be released) when the police or prosecutors decide not to prosecute or the time prosecutors have to file charges expires.
Rep. John Lesch, DFL-St. Paul, isn't happy with the release of the Buesgens arrest video. "Defendants are tried in court, not in the press. Just like reporters jealously guard the sanctity of their own sources," he told me via Twitter. Lesch chairs the House Crime Records/Criminal Records Division and says he'd like to have his committee take a look at the release of the video.
Getting a definitive answer from state officials in charge of the Data Practices Act isn't easy. Matt Gehring, a legislative analyst in the House of Representatives Research Department, wrote an overview of the act in July. He wasn't aware of a case involving the release of video but referred me to the Information Policy Analyst Division of the state Department of Administration. A recording at the office suggested leaving a message and they'd try to return the call within two days.
Wright County authorities did not ask for a determination by the Information Policy Analyst Division of the state Department of Administration, according to Jerrod Raulk, a policy analyst. He says the release of video is a "gray area" which is not specifically addressed in the law, but said there are several provisions a law enforcement agency could cite to justify its release.
But under the law, a criminal case can be considered "inactive" after the time expires for prosecutors to bring charges. That time came several days ago.
While I am glad to see that Rep. Lesch isn't happy to see the video released (and fmr. Rep. Powell in concurrence), I am certain that there would have been a posse of gleeful Republican staffers foaming at the mouth to get a video like that out on a DFLer in a similar circumstance.
While I agree that this is a question that deserves some consideration, what I don't understand is why the question is never raised when dashcam videos of lesser known individuals are released. (I think of the man who ate the paper pulled out of his pocket while being arrested and other videos that have gone viral or been shown on the news.)
Does privacy only matter if you feel the person is important enough? If it could possibly have an influence on political careers? If the video fails to amuse the general public?
Because he was operating a vehicle on public roadways, I feel this is a public right to know. I'm sorry that he's got some problems, but a DWI could impact many others.
One of the landmark legal cases that defined libel in the United States (NYT vs. Sullivan) not only defined libel, it also devined who a "public official" or "public figure." is.
Mark Buesgen certainly meets this criteria, and in my opinion, should have no expectation of privacy when filmed while being arrested for suspected DUI.
Showing the video is completely fair game for anyone who threatens the lives of others by driving drunk. It is incredibly fortunate that he didn't kill anyone.
I am sure Buesgens can get Emmer to sue the county. It fits Emmer to a Tee.