On a cold November day, Robert Burks was waiting for the Metro Transit bus at Fourth Street and Hennepin Avenue to take him to an appointment. Burks has been blind since he was 16, but manages to get around using public transportation. He said he was sitting at the bus stop, with his white cane visible in front of him.
When the number 16 bus rolled past him, then stopped at the corner to pick up a group of other riders, Burks had to negotiate around the bench and a light pole to catch up to the bus.
“I paid my fare and then I asked the guy why he didn’t stop at the bus stop,” said Burks, 48. “He went off on me.”
Burks said the driver quickly called dispatch and said he “wanted a blind guy off the bus.”
Two officers arrived and escorted Burks back to the sidewalk, where they put him on the next bus. They didn’t give Burks a ticket or charge him with anything. In fact, the police report states: “Driver had difficulty explaining to officers what the party did on the bus.”
Burks said the officers joked with him that the driver must have been having a bad day.
When he got home, Burks called Metro Transit to file a complaint. To this day, he has not heard back from them.
Meanwhile, Burks contacted the Disability Law Center, which took the case and has filed a discrimination complaint with the Department of Human Rights. The center’s lawyer, Justin Page, requested a copy of the video and audio captured of the incident inside the bus.
But Metro Transit refused, calling the video “private, personnel data,” and said it was not public.
The reason? Because they used the video to determine a personnel matter: the very complaint filed by Burks.
Metro Transit argued that because they didn’t discipline the driver, the video would not be made public, thus depriving Burks of potential evidence he could use in a discrimination suit against them.
Page reasoned that Metro Transit would be biased against disciplining the driver because any discipline would allow Page and Burks to see the video, and thus prove they had a case against Metro Transit.
“It seems it was in their best interest not to discipline the driver,” said Page. “We just want to see the video.”
Page sued Metro Transit, saying it was a violation of the Minnesota Data Practices Act. A judge agreed, and ruled that “the bus video in question is not classified as personnel data, notwithstanding its later use in a personnel action.”
But now the agency that oversees Metro Transit, the Metropolitan Council, is appealing the judge’s decision that they hand over the video.
Drew Kerr, communications specialist with Metro Transit, said the company investigated Burks’ complaint and reviewed the interaction on the bus video.
“A determination was made that the operator would not be disciplined,” Kerr wrote in a statement. “As such, the data related to the investigation is private, personnel data and was not released to Mr. Burks. The judge acknowledged that the law is unsettled and direction from the appellate courts is warranted.”
Kerr said he couldn’t detail the content of the video. “I can tell you the customer does not need it to pursue litigation,” Kerr said, adding that the Amalgamated Transit Union, which represents the Metro Transit bus operators, wants to file a “friend of the court” brief siding with the agency in this case.
Mark Anfinson, an attorney who specializes in First Amendment and data privacy law, said this issue is much larger than Burks’ case. In fact, Anfinson is representing a television station that wants video from another Metro Transit incident, and got the same response.
“If you pull back the edge of the tent on this issue, you’ll see a big space,” said Anfinson. “Saying that employee privacy trumps all other potential uses for video taken in public, on public transportation, is ludicrous. The position taken by Metro Transit on this is frustrating, to put it mildly.”
“The fact is there is no evidence Robert was being unruly,” said Page. “If he was being unruly the police would have arrested him and would not have put him on the next bus. The bus driver discriminated against Robert based on his disability. Metro Transit’s lack of accountability in this case is stunning.”
“This experience frightened, humiliated and embarrassed Robert. Robert calls Metro Transit to complain and it pulls the video and finds its driver did nothing wrong. Therefore, it does not have to disclose the video to Robert. How convenient. And to top it all off, Metro Transit can’t even contact Robert and let him know the status of his complaint and why he was kicked off the bus. I find Metro Transit’s handling of this case very troubling.”
So do I, and I can see where this is heading.
With more and more cameras capturing everything we do, businesses and government agencies will be looking for ways to keep them private, trying to balance the privacy rights of employees with the public’s right to know. But it gets even cloudier when that company or agency thinks the video could work against them in court if released.
Keep that in mind as we begin to put cameras on Minneapolis cops.