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Some Law Enforcement Drone Videos May Qualify For The CPRA’s Investigation Or Catchall Exemptions
The City of Chula Vista operated a pilot program using police drones to respond to 911 calls. The drones gave officers and commanders important preliminary information about what they would encounter on scene. Arturo Castañares, a journalist and private pilot, submitted a California Public Records Act (CPRA) request seeking information about the City’s drone program, including all drone video footage from all flights in a one-month period.
The CPRA gives every person a presumptive right to inspect any public record, except those that the law expressly exempts from disclosure. Most relevant here is that the CPRA exempts from disclosure certain records of police investigations. (Gov. Code section 7923.600(a).) Also, the catchall CPRA exemption allows a government agency to withhold records if it can demonstrate that the public interest served by withholding specific records clearly outweighs the public interest served by disclosure.
The City provided all the information requested, but withheld the video footage as exempt under the investigations and catchall exemptions. The City argued that every response to a 911 call requires the police to investigate the circumstances that lead to a call. Castañares sued to get the video footage.
The trial court agreed with the City that the videos were records of investigations. The court also found that any benefit of disclosure was outweighed by the “unreasonable burden” placed on the City to redact the videos. The City submitted a declaration that it would take 1833.3 hours, or 229.2 workdays, to redact the footage alone, not including the additional legal review, research, and quality control necessary to evaluate privacy, safety, and legal concerns. Castañares appealed.
The Court of Appeal overruled the trial court on both counts. The Court found that the trial court improperly treated the videos as categorically exempt investigation records. The Court also found that there was not enough information in the record on appeal to determine if the catchall exemption applied. The Court sent the case back to the trial court to conduct further proceedings. The Court did not foreclose the possibility, however, that the records could all be exempt, if the City further developed the evidentiary record.
The Court “suggested” that the trial court require the City to separate the videos into three categories. The first category would be video footage that is part of an investigatory file. This footage would be exempt under the investigations exemption. The second category would be videos that were not included in an investigation file but were instead used to investigate whether a law was violated. The Court noted that these records may still be exempt, as long as law enforcement was reasonably contemplated. The last category would consist of videos that did not fall into the other two categories. This footage would likely consist of instances where a drone was used to make a factual inquiry to determine what kind of assistance may be required, as opposed to investigating a suspected violation of law. According to the Court, video footage used for a factual inquiry, without a suspected violation of law, would not qualify under the investigation exemption, but might qualify under the catchall exemption.
Castañares v. Superior Court (City of Chula Vista), 98 Cal.App.5th 295 (2023).
NOTE: Law enforcement agencies should use Castañares as a prompt to prepare for similarly sweeping requests for videos and other types of audio/video records. If a video is not attached to an investigation file, but law enforcement is possible, then agencies should mark the video accordingly. Based on the decision, law enforcement agencies should expect courts to be more exacting in analyzing whether records qualify under the investigation exemption.
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.
For a more detailed discussion how law enforcement agencies can apply this case, please see J. Scott Tiedemann’s Special Bulletin here.