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By Christine Wood

Now, more than ever, Californians have greater access to police personnel records, body and dashboard camera footage and other recordings acquired by police agencies due to companion laws Senate Bill 1421 and Assembly Bill 748. Signed into law in 2018, these laws alter the way law enforcement agencies respond to California Public Records Act requests for records relating to critical incidents. 

Agencies have operated under the authority of these laws since January 2019 (SB 1421) and July 2019 (AB 748), but questions remain about permitted delays and redactions, privacy, criminal proceedings and internal investigations. Agencies did receive some disclosure clarity earlier this year when a judge held that, while SB 1421 applies prospectively, it still requires an agency to publicly release pre-2019 police personnel records it maintains in response to CPRA requests to critical incidents.

However, further case law doesn’t yet exist to help responding agencies answer many of the outstanding questions.

Without court opinions to guide an agency’s practices, agencies can look to the legislative intent of the bills to better understand what images and data are subject to redaction, the limited circumstances that warrant a delay in a record’s release and privacy interests often associated with these types of records.

Closed Off and Confidential 
Prior to SB 1421 and AB 748, California was one of the most secretive states when it came to the release of video, audio and other records relating to critical incidents. Generally, exempt from public disclosure under the CPRA, they were protected as investigatory files or confidential police officer personnel records.

Then, courts and policies shifted.

Beginning in 2016 with the California Court of Appeal’s ruling in City of Eureka v. Superior Court, the court held that police “dashcam” footage was not protected as a confidential personnel record simply because it might later be used by a police department in connection with a complaint or investigation. 

Next came the Los Angeles Police Department’s Critical Incident Video Release Policy, which, revised in 2018, stated that the Department would release to the public video of critical incidents within 45 days of the incident.

At the same time, California lawmakers were grappling with how to mandate similar access statewide. Their debate centered on how to increase transparency while also respecting the privacy rights at issue, and the new LAPD policy provided them a roadmap.

Enter SB 1421 and AB 748. 

Critical Incidents Spark Release
Under both laws, the general principles for processing CPRA requests apply equally. As such, the CPRA dictates that an agency must make a determination of whether it has responsive records within 10 calendar days of receiving a request. A rule governing a 14-day extension still applies. Agencies are still expected to produce records within a “reasonable” amount of time, and traditionally, the CPRA allows for a few, specific reasons to delay the production of records. This is where SB 1421 and AB 748 differ.

SB 1421 amended California Penal Code section 832.7 governing police personnel records to strengthen the public’s faith in law enforcement by ensuring its right to access to reports of potential police misconduct, civilians’ rights violation and use or deadly force.

While the law retained the language that police officer personnel records are confidential, it carved out four critical-incident exceptions when records relating to the report, investigation or findings of any of the following become subject to the CPRA:

  1. The discharge of a firearm
  2. Use of force resulting in death or great bodily harm
  3. Sustained findings of sexual assault
  4. Sustained findings of officer dishonesty

Records that must be disclosed under SB 1421 include: photographic, audio and video evidence; transcripts or recordings of interviews; autopsy reports; copies of disciplinary records and letters to impose discipline; and materials used to determine whether criminal charges should be filed. 

The law does permit an agency to withhold or delay disclosure of these records if related to an incident that is subject to an active investigation or criminal proceedings. Agencies, however, must state a specific basis for delay, estimate a disclosure date and bear the burden of establishing why the delay outweighs the public’s right to disclosure. 

Additionally, the law permits the redaction of records for very specific reasons, including the removal of personal data; complainant and witness identification; medical, financial or other information that constitutes an unwarranted invasion of personal privacy; and information that would pose a significant danger to the physical safety of the peace officer or another person if disclosed. 

The CPRA was amended under AB 748 with the intent of eliminating the investigatory exemption for video and audio footage of critical incidents to provide the public with facts more quickly. The law encourages law enforcement agencies to more quickly provide information on critical incidents and encourages the release of raw, unedited footage. AB 748 carved out a sub-set of records that, while disclosable under SB 1421, created a more immediate obligation to disclose such records swiftly. 

Under AB 748, an agency may delay a recording’s release for 45 days and up to a year during an active criminal or administrative investigation, but only if the disclosure would “substantially interfere” with the ongoing investigation. The law compels agencies provide clear and convincing evidence for any delays. 

AB 748 strictly permits redactions to provide those recorded with a reasonable expectation of privacy. The law allows for images to be blurred and audio distorted so long as it doesn’t interfere with the viewer’s or listener’s ability to fully, completely and accurately comprehend the events captured. 

Collection, Review and Production
When approaching any records request under the CPRA, agencies should do so methodically. 

Consider what type of record is being requested? Does the requester refer to a critical incident? What audio/video records are in the agency’s possession related to the critical incident? Do you need to provide notice to an officer if a personnel record has been requested?

To comply with the laws’ “reasonable” amount of time release allotment, agencies should consider keeping a log or list of critical incidents and develop policies and procedures for the collection, review and retention of audio and video files for easy examination and production. Given the magnitude of some requests, agencies may consider producing records on a rolling basis to stay in compliance. 

This article first appeared on on Nov. 21, 2019. Republished with permission.

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Partner and Director of PRA Services and E-Discovery Counsel
Christine N. Wood

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