Madison enters the debate over redaction fees for police body-camera footage

A proposal would allow MPD to take advantage of a highly unusual chapter in Wisconsin’s open-records law.

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A proposed City ordinance change would hinder public access to the Madison Police Department’s body-camera footage before it even fully implements a bodycam program, enabling the department to charge redaction fees for video and audio material. But District 8 Alder MGR Govindarajan hopes to stop the change in its tracks. 

The resolution, introduced in early January, would bring Madison’s public-records rules into alignment with Act 253, a new state law that took effect in March 2024. It would also make some unrelated, more routine changes meant to keep City ordinance current with changing staff practices. It’s on the agenda for the Wednesday, February 12 meeting of the City’s Public Safety Review Committee. Govindarajan says he is working with Mayor Satya Rhodes-Conway on a substitute amendment that would strip out the changes dealing with redaction fees, but isn’t sure whether or not his amendment will be ready in time for that meeting.

A major departure from Wisconsin’s history of open-records laws and related court rulings, Act 253 not only allows law enforcement agencies in Wisconsin to charge redaction fees for audio and video material when handling open-records requests, but also invites police to consider the identities and motivations of records requestors to an unusual extent. It creates the possibility of punishing records requestors with a $10,000 fine, if police decide they’ve asked for an exemption under false pretenses and are using records for “financial gain.” In fact, it may be the only piece of open-records law anywhere in the United States that allows government agencies to punish members of the public who ask for records. 

Currently, Madison’s open-records ordinance forbids any City agency from charging redaction fees. Act 253’s language doesn’t force local governments to allow police agencies under their jurisdiction to charge redaction fees. It states that law enforcement “may impose” redaction fees, but doesn’t preempt local ordinance provisions like Madison’s. Govindarajan’s proposal would essentially leave that part of City ordinance as it is. 

Elsewhere in Wisconsin, a 2012 state Supreme Court ruling makes it clear that government agencies can only charge fees explicitly specified in the state’s Open Records Law. Act 253, a legislative response to that ruling, creates a carve-out for police and corrections agencies, but still leaves redaction fees off-limits for other areas of government. 

Govindarajan says he opposes allowing MPD to charge redaction fees because it would create additional barriers to transparency, accountability, and press coverage.

“The fact that state law only allows this additional obstacle for law enforcement agencies just doesn’t seem very democratic—[in the sense of] small-d democracy,” Govindarajan tells Tone Madison. “It feels icky. So that’s why I was opposed to this in the first place. I brought it up to the Mayor’s office as soon as I could, and she was also very amenable to removing it as soon as possible.” (Govindarajan also works as a staff member in the Wisconsin Legislature, and stressed that he was commenting on Act 253 solely in his capacity as an Alder.)

The proposed ordinance change also came up at a January meeting of the Madison Common Council’s Executive Committee. But discussion at that meeting centered entirely on procedural confusion over why the resolution was on the Executive Committee’s agenda. Substantive debate about the actual policy will likely kick off at the February 12 PSRC meeting. That begins at 5 p.m. and will take place over Zoom. Those interested in attending or registering to speak can review the agenda now.

Process issues

The proposed change to the ordinance appears to have stemmed from a routine process in which City staff suggests revisions that bring ordinances up to date with changing laws and practices. While Mayor Satya Rhodes-Conway is listed as the resolution’s sponsor, it’s possible the Mayor didn’t know she had “introduced” it until after the fact. City of Madison spokesperson Dylan Brogan addressed the Mayor’s position on the resolution after receiving questions about it from Tone Madison. 

“This came from MPD and working with the City Attorney’s office, and really just recognizing that there was a change in state law and putting it on our books, and how exactly that would be implemented is something that wasn’t spelled out and would need to happen,” says Brogan. (Disclosure: Brogan previously contributed to Tone Madison as a podcast producer and writer, during his time as Assistant News Director at WORT.)

As currently written, the resolution would give MPD full latitude to implement all of Act 253’s provisions. It strikes the overall prohibition on redaction fees and instead reads: “Except as provided in Wis. Stats §19.35(3)(h), a requestor may not be charged for the time necessary to review a record and to redact or excise non-releasable materials.” (Wis. Stats §19.35(3)(h) is the section of state law that Act 253 created.) If it passed in this form, City ordinance would place no additional parameters on how MPD takes advantage of Act 253. It would not legally prohibit MPD from threatening records requestors with a $10,000 fine. 

Act 253’s authors—chiefly Wisconsin police lobbying groups and Republican legislators with law-enforcement ties—kept many ambiguities in the wording of the law. It doesn’t define key terms that allow some requestors to ask for exemptions from redaction fees, including “financial gain.” Neither the courts nor Wisconsin Attorney General Josh Kaul have provided guidance on how to interpret its novel provisions. For now, that gives police wide latitude in applying the law, and local district attorneys a lot of discretion as to whether or not to go through with punitive fines.

The threat of fines is not abstract, either. In June 2024, records staff at the UW-Madison Police Department responded to a records request from a Tone Madison freelancer by threatening to fine her under Act 253: “If you are an outside party requesting footage, and this will not be used for a story on a media outlet, then under this legislation, we will require you to fill out a form certifying that you would not use this footage for financial gain. By signing this, you agree to use this only for personal use. If you end up sending it to Tone Madison to use on their website or social media platforms, you will be in violation of that certification, in which you may be charged a $10,000 fine.” UW-Madison’s attorneys have argued that journalists are not eligible for exemption from redaction fees under Act 253. Madison’s City Attorney’s office interprets it the same way.

While Wisconsin’s open-records law does provide a punishment mechanism for government officials who wrongfully obstruct records requests, it’s never before created a way to punish the person asking for the records. The fine provision in Act 253 is an outlier, and possibly unique, in the annals of American public-records laws. In interviews with open-records advocates and policy experts in Wisconsin and nationwide over the past nine months, Tone Madison has yet to speak with anyone who knows of a comparable provision in other state- or federal-level open records laws.

“That provision definitely stood out to me…I think that is very unusual, and I personally have not seen another provision like that,” says Hayley Tsukayama, Associate Director of Legislative Activism at the Electronic Frontier Foundation (EFF). “I don’t even think it’s speculative to say that’s a barrier erected to keep people from filing requests.”

Tsukayama specializes in state-level legislation at EFF, a nonprofit advocating for civil liberties and privacy in the digital world. During an interview with Tone Madison, she noted the lack of an exception for journalists in Act 253, and its overall lack of specificity. “I was like, ‘Did I find a short version of this law?'” Tsukayama says, half-joking.

“It’s written very much like a law of somebody who does not want to release records,” Tsukayama adds.

Unknown costs

Police nationwide have received hundreds of millions of dollars in state, local, and federal government funding to adopt body cameras, arguing that the technology will make policing more transparent. At the same time, police have often complained about the downstream costs of generating and storing the resulting footage, especially when members of the public ask to see it. Law enforcement agencies and state legislatures around the country have created numerous procedural and legal barriers that often make body-camera footage difficult and expensive to access. Act 253’s supporters, including police lobbying groups and police unions, have followed suit. Those groups argue that police need to be able to charge redaction fees in order to make up for the costs of handling records requests for body-camera footage. In Wisconsin, proponents of redaction fees have often fixated upon the example of YouTube accounts that make ad money by posting bodycam footage.

Former MPD Chief Shon Barnes vocally advocated for body cameras during his tenure in Madison. He also supported changing City ordinance in order to allow MPD to charge redaction fees, claiming in a June 2024 email to District 2 Alder Juliana Bennett that “we can no longer avoid these fees in some regard.” In 2024, MPD conducted a 90-day pilot study of body cameras in its North District, in partnership with a paid consultant for leading bodycam maker Axon. The report MPD issued about the study in November placed heavy emphasis upon the anticipated costs of handling public requests for bodycam footage.

It’s not clear whether or not MPD’s Acting Chief, John Patterson, will take up the same approach to body cameras and redaction fees now that Barnes has departed for a new job as Seattle’s police chief. Reached via email with questions for this story, Patterson notes Govindarajan’s in-the-works substitute amendment.

“I expect that there will be a substitute amendment coming soon which will remove references to Act 253,” Patterson writes. “As a result, I don’t expect any immediate changes to our current practices, and I am very comfortable with that.”

I did ask Patterson whether MPD had noticed an increase in footage requests and related costs since the end of the pilot study period. He replied that he didn’t have that information immediately available as of our deadline. We’ll update this story if MPD is able to follow up with more details about the volume of requests it’s been getting.

Charging redaction fees would likely make up only a fraction of any additional costs, especially if MPD adds new staff positions to build capacity for records requests. In the first place, fees are a notoriously unreliable source of revenue for governments. The Government Finance Officers Association, a professional association for public officials in the U.S. and Canada who deal with financial matters, cautions in its online guidelines for local governments that “Fines and imposed fees should not be used as revenue raising or cost-recovery tools.” And even under the language of Act 253, Wisconsin police agencies can charge records requestors only for “the actual, necessary, and direct cost of redacting,” and have to index that cost to “the pay rate of the authority’s lowest paid employee capable of performing the task.” The revenue Act 253 generates would depend entirely on how many requests a given agency receives, how many of those are exempt from redaction fees from one reason or another, the scope of those requests, and how much time staff spends on the redactions themselves. Even if MPD is constantly deluged with redaction-heavy requests, there is simply no way redaction fees alone would cover a salary for a new staff position.

Govindarajan acknowledges that frivolous requests from random YouTube and TikTok accounts could get expensive fast, but he doesn’t accept the fiscal argument for charging redaction fees.

“At best this open records ordinance might provide MPD with a couple thousand dollars, maybe a couple ten-thousand dollars,” Govindarajan says. “It’s a drop in the bucket. It doesn’t actually help recoup that much money. I mean, there has not been an analysis done on that as far as I’m aware, but…if the argument is, ‘Oh, but it helps us save money,’ it’s not an effective argument at the end of the day.”

Taking advantage of Act 253 could also end up costing the City. Open-records disputes often end up in court. Given the many ambiguities in Act 253 and the dubious interpretations police are already advancing, it’s almost certain Wisconsin will see a lawsuit over it sometime within the next few years. Wisconsin courts have a long history of ruling in favor of public-records access. Whichever state or local agency gets sued, it has a strong chance of ending up on the hook for legal fees and other costs. 

“The chances of it being sued in court are pretty high, and then at the end of the day, the City would have to be on the hook for defending the ordinance,” Govindarajan says. “We would have to pay in court and all of that stuff. And we already have a pretty crappy budget situation, so we definitely don’t want to get into another court fight.”

Even if Govindarajan succeeds in stopping the ordinance change for now, MPD could ask the Madison Common Council to allow it to charge redaction fees in the future. No one has yet proposed a City policy change affirmatively blocking MPD from taking advantage of Act 253, either. As Alders continue to debate whether or not to fund a department-wide bodycam program for MPD, and agonize over state-imposed constraints on local government budgets, there’s no telling how political support for redaction fees will shake out.

Addressing questions directed to Rhodes-Conway’s office, Brogan acknowledged a need to balance cost concerns with public access.

“I think Alder Govindarajan deserves a lot of credit for flagging this one sentence in there, and…the Mayor agrees that we should take it out, figure out what it means for Madison, and keep an eye on any pending litigation, and implement this in a way that really upholds how the City has dealt with records and open record records requests for a long time, which is [that] we don’t try to be burdensome with fees,” Brogan says. “We try to make it easier on folks, because people have a right to know.”