California Appeals Court Says Police Drone Footage Not Automatically Exempt From Public Records Law

Public records requesters in California recently scored a small victory in one of the state’s appeals courts. The EFF, which filed an amicus brief in this case, summarizes the decision at its website.

Video footage captured by police drones sent in response to 911 calls cannot be kept entirely secret from the public, a California appellate court ruled last week.

The decision by the California Court of Appeal for the Fourth District came after a journalist sought access to videos created by Chula Vista Police Department’s “Drones as First Responders” (DFR) program. The police department is the first law enforcement agency in the country to use drones to respond to emergency calls, and several other agencies across the U.S. have since adopted similar models.

This case began when journalist Arturo Castañares filed a public records request with the Chula Vista PD seeking drone use records, as well as any footage recorded between March 1 and March 31, 2021. The PD dragged their feet a bit before handing him some of the records he’d requested. But it refused to hand over any of the recordings, claiming the footage was exempt from the California Public Records Act (CPRA) because every single recording was an “investigative record.”

If this excuse sounds familiar, it’s because the Los Angeles Police Department made the same claim about its automatic license plate reader (ALPR) data. According to the LAPD, every single record collected by its plate readers (at a rate of nearly 2 million plate captures a week) was exempt from disclosure because they were (all several million of them!) part of ongoing investigations.

This ridiculous claim resulted in a public records lawsuit and a subsequent smackdown from the state’s top court, which ruled the LAPD could not categorically deny requesters these records because it was insane to state (and more insane to expect people to believe) that every single driver in the state was the subject of a criminal investigation.

A bit more credibly, the Chula Vista PD claimed it would be “unreasonably burdensome” to redact footage and/or sort through its recordings to determine which were actually linked to criminal investigations.

Neither of these arguments manage to secure much sympathy from the court. While it’s not actually willing to rule that all drone footage is subject to the CPRA, it’s just as unlikely that all of it is exempt. The truth lies somewhere in the middle.

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.

The decision [PDF] notes the case of “everyone’s under investigation” ALPR data, which mildly instructive, is a bit different than what’s going on here. While the claim that every bit of footage is subject to this public records law exemption is a bit much, it’s not quite as egregious as the argument raised by the LAPD in its ALPR records lawsuit.

Although Castañares claims the instant matter is analogous to ACLU Foundation, we observe a key difference between the two cases in considering whether the requested drone video footage falls under the records of investigations exemption of the CPRA. In ACLU Foundation, the ALPR scans were random and not aimed at any particular person or in response to any call to service from the public. In contrast, 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.

Since it’s somewhere in the middle, the appeals court says more information is needed to determine what can and can’t be released. Any arguments over what’s been withheld can be taken up with the lower court.

Instead of adopting such an all-encompassing rule, we conclude a more nuanced approach to the drone video footage is apt. The drone video footage should not be treated as a monolith, but rather, it can be divided into separate parts corresponding to each specific call. Then each distinct video can be evaluated under the CPRA in relation to the call triggering the drone dispatch. Further, as an initial determination, the City is well equipped to categorize the drone video footage in this manner. However, we do not propose to instruct the City regarding what process it must use to evaluate the drone video footage or suggest that a City designee must watch the footage to make the necessary determinations. Indeed, it could be more efficient for the City to simply review call logs, AARs, and other related information to ascertain what drone video footage falls into the three categories. After the City categorizes the drone video footage, Castañares then should be permitted the opportunity to challenge or otherwise question any of the determinations the City made. To the extent the parties disagree on the categorization of the drone video footage, we trust the trial court to resolve those issues of disputed fact…

This ruling will immediately affect the Chula Vista PD, which must start reviewing footage and turning it over to the records requester. But, as the EFF points out in its post, it won’t be the only law enforcement agency affected. Chula Vista may have taken the lead with drone deployments in response to 911 calls, but at least three other law enforcement agencies in California have since done the same thing.

This victory sends a message to other agencies in California adopting copycat programs, such as the Beverly Hills Police Department, Irvine Police Department, and Fremont Police Department, that they can’t abuse public records laws to shield every second of drone footage from public scrutiny.

The state public records law instructs agencies to err on the side of disclosure. But government agencies, more often than not, abuse blanket exemptions when not using other methods to limit responses or deter requests. This ruling, while limited, at least alters these contours a bit, which means there’s a bit more transparency in California going forward.