AB 748 – Establishes Standards for Disclosure of Video and Audio Recordings of Critical Incidents

Category: Public Agencies
Date: Oct 23, 2018 04:04 PM

The California Public Records Act (“CPRA”) requires public agencies to make public records promptly available for inspection and copying to a requesting party unless the public records are exempt from disclosure under the CPRA.  The CPRA currently exempts from disclosure records of investigations conducted by any state or local police agency. 

Beginning July 1, 2019, AB 748 mandates the disclosure of video and audio recordings of “critical incidents” involving police agencies, except in delineated circumstances when the disclosure of the recording may be delayed or when recordings may be redacted or withheld.  Under AB 748, an audio or video recording relates to a “critical incident” if it depicts an incident involving a peace officer or custodial officer’s discharge of a firearm at a person or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury.

AB 748 further provides that “an agency may provide greater public access to video or audio authority than the minimum standards set forth in this paragraph.”  This means that, as under current law, an agency has the discretion to release more recordings and to do so sooner than required by law.

AB 748 provides that, during an active criminal or administrative investigation, disclosure of a recording related to a critical incident may be delayed for up to 45 calendar days after the date the agency knew or should have known about the incident, if disclosure would substantially interfere with the investigation such as by endangering a witness or confidential source.  If an agency delays disclosure, for this reason, the agency is required to provide to the requester, in writing, the specific basis for the determination that disclosure would substantially interfere with the investigation and an estimated date for disclosure.

The agency may continue to delay disclosure of a recording of a critical incident beyond this 45-day period up to one year if it is able to demonstrate by clear and convincing evidence that disclosure would substantially interfere with the investigation.  The agency is required to reassess withholding and notify the requester every 30 days.  The recording must be released promptly when the specific basis for withholding is resolved.

AB 748 permits an agency to withhold a recording related to a critical incident, without limitation as to time, if it determines the public interest in withholding the recording clearly outweighs the public interest in disclosure because the release of the recording would violate the reasonable expectation of a subject depicted in the recording.   The agency is required to provide in writing to the requester the specific basis for the expectation of privacy and the public interest served by withholding the recording.

The agency is only permitted to withhold the recording if it demonstrates that the reasonable expectation of privacy of the subject cannot adequately be protected through redaction and that interest outweighs the public interest in disclosure.  The statute specifically authorizes redaction technology, including blurring or distorting images or audio to obscure those specific portions of the recording that protect the interest.  However, redaction shall not interfere with the viewer’s ability to fully, completely, and accurately comprehend the events captured in the recording.

Even if redacting is inadequate to protect the reasonable expectation of privacy of a subject, the agency must produce an unredacted version of the recording, upon request, to the subject of the recording, his or her parent, guardian, or representative, or his or her heir, beneficiary, immediate family member, or authorized legal representative, if the subject is deceased. 

While AB 748 technically goes into effect January 1, 2019, the bill specifically delays the obligation to produce the affected audio and video recordings until July 1, 2019.   Although these new requirements will pose significant burdens and costs on agencies, they may also provide an opportunity to build public trust through increased transparency.  Agencies should, therefore, conduct administrative investigations and draft disciplinary documents for the types of complaints affected by AB 748 with the expectation that these records will be subject to public inspection.  Agencies should consult with LCW or other trusted legal counsel regarding not only how to bring their policies into line with the new laws, but to assist in preparing investigation reports and disciplinary notices that will meet legal requirements and survive public scrutiny.

(AB 748 amends section 6254 of the Government Code.)

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