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California Court of Appeal Rejects Categorical Treatment of Police Drone Videos as Exempt Records of Police Investigations, Raising Questions about Treatment of Other Police Videos Under the California Public Records Act
In Castañares v. Superior Court (December 27, 2023) 2023 Cal. App. LEXIS 994, the Fourth District Court of Appeal, Division One, addressed the circumstances under which a law enforcement agency may withhold drone video footage from disclosure under the California Public Records Act (CPRA). The Court of Appeal remanded the case to the trial court to decide how to treat over 90 hours of drone videos, which the police department argued were exempt as records of investigation and which the department estimated would take over 200 workdays to redact. Law enforcement agencies should be familiar with the case because they are likely to receive more sweeping public records requests for not only drone videos but also other videos and be required to conduct an individualized video by video analysis to determine any video’s exempt status.
The Castañares decision specifically considered the applicability of the investigatory records exemption and the so-called catchall exemption under the CPRA. The court ruled in favor of the requesting party, Arturo Castañares, finding that not all drone footage was necessarily exempt and remanded the case to the trial court for further proceedings. On remand, in order to sustain the exemptions, the respondent city will be required to produce further evidence. The case underscores the importance of conducting a case-by-case analysis in determining the applicability of exemptions under the CPRA. It also increased the probability that law enforcement agencies will receive more sweeping requests for video footage, not just captured by drones, but by body worn cameras, in-car cameras, and surveillance cameras.
In Castañares, the city operated a pilot program using police drones to respond to 911 calls, giving officers and commanders important preliminary information about what police would encounter on arrival. Castañares, a journalist and private pilot, submitted a PRA request seeking information about the city’s drone program, including all drone video footage from all flights in a one month period. The city provided significant amounts of information to Castañares, but withheld the video footage as exempt under the investigations and catchall exemptions. The chief of police offered to give Castañares a tour of the city’s drone program operations, indicating Castañares would be permitted to “ask direct questions of those responsible for administering the program regarding program data gathering use and storage.” The city also requested Castañares to discuss a more limited disclosure, but also expressed willingness to institute “program checks and balances . . . to address Mr. Castañares’ concerns.” Castañares instead filed suit under the CPRA to compel disclosure.
Under the CPRA, every person has a presumptive right to inspect any public record, except those that are exempt from disclosure by express provisions of law. Public records include any records containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency. A requesting party may file a lawsuit to enforce their request and recover their reasonable attorneys’ fees if they prevail.
Most relevant to Castañares, the CPRA does not require the disclosure of certain records of police investigations. Specifically, Government Code section 7923.600, subd. (a) provides: “Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.” [Emphasis added.]
Under the catchall exemption, the CPRA also allows a government agency to withhold records if it can demonstrate that, on the facts of a particular case, the public interest served by withholding the records clearly outweighs the public interest served by disclosure.
The city argued that every response to a 911 call is investigatory – police are investigating the circumstances that lead to a call. A member of the police department’s command staff declared: “Officers treat every call for service, at least initially, as a response to investigate … whether a potential crime occurred or may occur. Of course, that does not mean that every call for service results in an officer detecting a crime or an arrest, but every call has that potential, and an officer cannot rule out a crime or violation of the law without first conducting a preliminary investigation.” The trial court agreed, finding as a matter of first impression, that all drone footage was categorically exempt as investigatory records.
The trial court also ruled, as a separate reason for denying the petition, that the CPRA request, “sought to impose an unreasonable burden on the city’s resources with no substantial countervailing benefit given the wealth of information already turned over by the City to petitioner.” The police support services manager submitted a declaration that it would take 1833.3 hours or 229.2 workdays to simply review and redact the footage without the additional legal review, research, and quality control necessary to evaluate privacy, safety, and legal concerns.
The Court of Appeal overruled the trial on both counts, finding that the trial court improperly treated the videos as categorically exempt as investigation records, and further finding that the record was insufficient for it to determine that the catchall exemption applied. The Court remanded the matter to the trial court to conduct further proceedings. In doing so, the Court did not foreclose the possibility that the records could all be exempt, but it held that the evidentiary record needed to be further developed to reach that conclusion.
Importantly, the Court of Appeal “suggested” that the trial court require the city to separate the videos into three categories:
1. The first category would consist of video footage that is part of an investigatory file. On that point, the Court of Appeal included a footnote citation to Williams v. Superior Court (1993) 5 Cal.4th 337, 356, cautioning that records cannot simply be labeled as part of an investigation file to be considered exempt. (See, Williams, at 356: “[I]t now appears well established that ‘information in public files [becomes] exempt as ‘investigatory’ material only when the prospect of enforcement proceedings [becomes] concrete and definite.”) However, since Castañares had not argued for production of video footage that was part of an investigatory file, the Court said it was not particularly concerned with that type of footage, declaring “[s]uch files are exempt from disclosure.”
2. The second category, on which the Court of Appeal focused the bulk of its attention, would consist of instances when video is not part of an investigatory file, but when officers nonetheless used a drone to investigate whether a violation of law was occurring or had occurred. The Court cited to Haynie v. Superior Court (2001) 26 Cal. 4th 1061, explaining that records may be exempt from disclosure even if the prospect of enforcement is not concrete and definite as long as enforcement is reasonably contemplated as a possibility. In Haynie, a deputy sheriff stopped the plaintiff’s van based on a tip from a citizen informant. During the stop, the deputy searched the van and questioned the plaintiff, but did not arrest him or issue any citations. The plaintiff later requested records related to the stop under the CPRA but the sheriff’s department considered them exempt as investigatory records. The Supreme Court ruled in favor of the sheriff’s department. However, in Castañares, the Court of Appeal was also careful to distinguish Haynie. “There, the court addressed a situation where an individual deputy stopped an individual driver, allegedly based on a single, close-in-time tip from a neighbor. In contrast, the instant matter does not concern an individual requesting information related to his encounter with law enforcement.” It was less clear to the Court of Appeal in Castañares, in comparison to Haynie, that use of drones in response to 911 calls meant that enforcement was a reasonable probability.
The Court of Appeal also rejected the suggestion, by Castañares, that the court should apply American Civil Liberties Union Foundation v. Superior Court (2017) 3 Cal.5th 1032. That case involved a dispute over whether automated license plate reader (ALPR) data collected by the Los Angeles Police Department (LAPD) and Los Angeles Sheriff’s Department (LASD) were exempt from disclosure under the CPRA. The ACLU had submitted requests to the LAPD and LASD seeking access to ALPR data, including license plate numbers, dates, times, and locations. Both agencies denied the requests based on investigative and security exemptions under the CPRA. The Supreme Court ruled that ALPR data are not exempt as “records of investigations” under the CPRA because the ALPR scans were not conducted as part of a targeted inquiry into any particular crime. The Supreme Court further observed that “[t]he scans are conducted with an expectation that the vast majority of the data collected will prove irrelevant for law enforcement purposes.” The Supreme Court acknowledged that it “may not always be an easy task to identify the line between traditional ‘investigation’ and the sort of ‘bulk’ collection at issue here[,]” but it was “clear that [the] … ALPR process falls on the bulk collection side of it.”
In Castañares, the court distinguished the ACLU case, explaining, “here, the drone video footage is recorded only after an officer determines a drone should be dispatched in response to a 911 call . . . Thus, unlike the ALPR scans in ACLU Foundation, the drone video footage in the instant matter required an act of discretion by the City’s police. This is a critical difference between the two programs and underscores why we are not persuaded that ACLU Foundation is instructive regarding the application of the records of investigations exemption here.” The Court of Appeal concluded that the facts in Castanares fell somewhere in between Haynie and ACLU.
3. The third category identified by the Court would include any video footage that does not otherwise fall under either of the first two categories. Records in the third category would include footage captured when a drone is used to make a factual inquiry to determine what kind of assistance may be required, not to investigate a suspected violation of law. While the police may be said to be conducting some form of general investigation in these instances, if there is no suspected violation of law, then related video will likely not qualify as exempt as a record of an investigation under the CPRA.
Regarding application of the catchall exemption, the Court of Appeal held that notwithstanding the significant resources the city would necessarily expend to redact videos, the city had not satisfied its burden to show that the public interest in withholding the non-investigatory drone videos clearly outweighed the public’s interest in disclosure. While the Court did not rule out the possibility that the city could ultimately justify withholding the records under the catchall exemption, it determined that the city’s showing at the trial court was inadequate to do so.
There is increasing use of video by law enforcement – body worn cameras, in-car cameras, pole cameras, etc. – and many type of videos share similarities with the type of drone videos addressed in Castañares. Video recordings are commonly made at the direction of officers in specific circumstances, although officers may not suspect or yet know whether a crime has been committed and are simply conducting a preliminary investigation into the circumstances. The Castañares decision prevents an agency from asserting a blanket exemption in response to requests for such videos on the premise they are all records of police investigations. Some videos may qualify and others may not; a potentially time consuming video-by-video analysis will be necessary.
Law enforcement agencies should use Castañares as a prompt to prepare for similarly sweeping requests for videos and other types of audio/video records. Based on the decision, law enforcement agencies should expect courts to be more exacting in analyzing whether records qualify as exempt as records of investigation.
In reviewing agency policies regarding when officers should record their activities, agencies will have to weigh the benefits (and public expectations) of recording more against the potential costs to taxpayers associated with redacting and producing the videos later. Most videos will require at least some redaction in protection of privacy interests.
Furthermore, the more detailed an agency’s record keeping is on the front end, the more efficient and defensible the agency’s analysis will be on the back end. If a video is not attached to an investigation file, yet enforcement was contemplated as a reasonable possibility, then the video should be marked accordingly. For instance, if officers respond to a 911 call of a domestic disturbance and video record their contacts per policy, but do not make an arrest, then the video may qualify as exempt even though the videos may not be part of a file. The more information the officers record about a video at or near the time the video is recorded, e.g. the potential crimes being investigated, the better for purposes of analyzing and defending a video’s exempt status later.
Unfortunately, in a significant number of circumstances when a police response is necessary but is unrelated to an investigation of a potential crime, the videos of those incidents will likely be subject to disclosure. For example, if an officer observes a stranded motorist and stops to investigate if the motorist requires assistance, then the video may have to redacted and produced in response to a PRA request. Or, if an officer responds to a traffic collision and activates their body worn camera even though they are blocks away and their only role is to direct traffic away from the collision site, then the video may be non-exempt. In those types of cases, the more detailed and up to date an agency’s analysis of the costs associated with identification, review and redaction of such videos, the better the agency’s chances of withholding them under the catchall exemption.
Agencies should review their recording policies and establish/ update record-keeping procedures to be prepared for a likely increase in CPRA requests for videos. Responding to such requests is time consuming and expensive, particularly in light of the limits on recovering the expenses associated with locating, reviewing and redacting videos. (See, National Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488.) Looking ahead, agencies should account for the increasing volume and complexity of CPRA requests when budgeting for the staff necessary to timely handle the requests.
LCW attorneys, including our Public Safety Practice Group, regularly advise and represent public agencies in connection with matters involving the California Public Records Act, including reviewing/updating policies and procedures, responding to requests, reviewing/redacting records, and defending CPRA litigation. If you have any questions regarding this bulletin, please contact Firm Managing Partner, J. Scott Tiedemann at email@example.com.