Page 1
Court of Appeal:
Some Videos Taken by Police Drones Might Be Disclosable
Panel Says Judge Erred in Proclaiming All Footage to Be Subject to ‘Investigation’ Exemption in CPRA
By a MetNews Staff Writer
|
|
|
Above is a Chula Vista Police Department drone, used in responding to 911 calls. |
A judge acted precipitously in declaring all video footage taken by Police Department drones, dispatched pursuant to 911 calls, to be exempt from disclosure, Div. One of the Fourth District Court of Appeal held yesterday, in a case of first impression.
Footage not relating to investigations must be handed over in response to a request made pursuant to the California Public Records Act (“CPRA”), Acting Presiding Justice Richard D. Huffman wrote.
Such a request was made by Art Castañares, publisher/editor-at-large of La Prensa, a bilingual Latino newspaper and website in San Diego County. The Chula Vista Police Department provided information on its first-in-the-nation program—set up by the Federal Aviation Authority, under which drones are sent to scenes of reported incidents, transmitting images—but declined to provide footage, directing Castañares to its website for an explanation.
Wording on Website
The website states this stance:
“Video and photos collected by [drones] are stored for the purposes of conducting police investigation and subsequent prosecutions. Accordingly, videos and photos are generally accessible to police investigators for official use only. Like all police records, video and photos may also be subject to additional release under the same rules and restrictions as [body-worn camera] video and other items of evidence. Generally, UAS photos and video are considered part of the investigative record and are not available to the public under the California Public Records Act (CPRA) or [federal] Freedom of Information Act (FOIA).”
Government Code §7923.600(a), a part of the CPRA, provides that records of investigations are not public records. Castañares crafted his CPRA request so as to avoid the exemption by agreeing to the withholding of “any such videos that may be part of any ongoing or pending investigations,” while expressing an expectation that police would “provide a log of any videos or documents withheld, who made the determination to withhold them, and when they may be released.”
San Diego Superior Court Judge Timothy Taylor denied the request in toto, citing §7923.600(a). Castañares sought a writ of mandate, which Div. One yesterday granted, in part.
Huffman’s Opinion
Huffman wrote:
“We agree with Castañares that the superior court erred in determining, as a matter of law, all video footage from the drone program is exempt under section 7923.600, subdivision (a) as records of investigations. However, it might be the case, after further inquiry, consistent with this opinion, that the majority of the video footage is exempt. That said, we cannot make that determination on the record before us.”
He explained:
“We are simply considering the possibility that a drone could be dispatched in response to a call to service from the public wherein the use of the drone could not be considered investigatory in nature….[W]e can imagine such situations (e.g., potentially dangerous wildlife roaming the neighborhood, a stranded motorist, a water leak). Based on these reasonable scenarios and the dictate that we broadly construe disclosure under the CPRA…and narrowly construe exemptions…, we conclude, based on the record before us, the trial court’s broad ruling that all drone video footage, as a matter of law, is categorically exempt because the drones are only dispatched in response to 911 calls was error.”
‘Catchall’ Provision
The jurist suggested that on remand, the judge order the city to review the footage and place it one of three categories: “(1) part of an investigatory file, (2) an investigation into whether a law has been broken absent any investigatory file; and (3) a factual inquiry.”
Those in the third class would be not exempt under §7923.600(a), he said—but might be exempt under §7922.000, the “catchall” provision of the CPRA which authorizes nondisclosure where “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”
Huffman said that “our state constitution expressly grants all Californians the right of privacy,: citing Art. I, §1, and remarked:
“[W]e agree that the drone video footage implicates serious privacy concerns. It is undisputed that when a drone is dispatched, its video camera is turned on and is recording. As the drones travel en route to the various scenes, it logically follows that they would, from time to time, travel over and film private backyards, perhaps capturing pool parties, barbeques, sunbathing, or other activities that are intended to be private.”
City Claims Burden
Although the city insisted the request, overall, is too burdensome because of the amount of time that would be expended in making redactions, Huffman said the extent of that burden cannot be gauged because no review of the footage has taken place. He commented that “it might be sensible for the City to at least review a sampling” of the videos not related to investigations “so it can more accurately represent the burden of redacting such videos and the privacy rights implicated in disclosing them to Castañares.”
Huffman specified:
“We offer no opinion regarding what portion of the subject drone video footage is covered by the records of investigations exemption…or whether the catchall provision…applies to any non-exempt footage.”
The case is Castañares v. Superior Court (City of Chula Vista), D082048.
Broad interest in the outcome of the writ proceeding was sparked. The First Amendment Coalition and the Reporters Committee for Freedom of the Press were amici curiae in support of Castañares; in support of the city were the League of California Cities, the International Municipal Lawyers Association, California Sheriffs’ Association, California Police Chiefs Association and California Police Officers’ Association.
Copyright 2023, Metropolitan News Company