Unless the legislation now brewing in Sacramento to regulate police use of body cameras expressly provides otherwise, the public will seldom see and hear the documentation they gather. The reason: Under California case law reaffirmed by an appellate decision only yesterday, the video recordings fall in the category of records of a law enforcement investigation that are exempt from disclosure under the Public Records Act.
The move to adopt the body camera technology has been repeatedly touted as making street policing more observable, especially when confrontations with citizens turn violent.
For instance, USA Today reports that (“i)n a speech last week, Democratic presidential candidate Hillary Clinton pointed to the unrest in Baltimore after (Freddie) Gray’s death to make the case that all police officers should wear cameras to ‘improve transparency and accountability in order to protect those on both sides of the lens.’”
Seldom has the move to equip peace officers with the video devices been discussed, in fact, without supporters’ use of the term “transparency.”
But in California, at least, the notion that controversial police behavior on the street will be open to community scrutiny by way of officer-captured video recordings is likely to be an illusion. The handful of bills in Sacramento aiming to regulate body cameras and their output are either silent on public access, bluntly resistant to it, or misleadingly worded to create a false appearance of enabling it.
But the reality is that any request by the press or public for access to police body camera video would be subject to the California Public Records Act, which has a gaping exemption from disclosure for any information concerning a pending (or past) law enforcement investigation. And for public records purposes such investigations, the California Supreme Court has ruled, include patrol activity as routine as a traffic stop in response to a radio dispatch of suspect activity.
The records of investigation exempted under (the Public Records Act) encompass . . . those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency. Here, the investigation that included the decision to stop (a motorist who turned out to be innocent) and the stop itself was for the purpose of discovering whether a violation of law had occurred and, if so, the circumstances of its commission. Records relating to that investigation are exempt from disclosure by (the Public Records Act).
— Haynie v. Superior Court (County of Los Angeles), 26 Cal.4th 1061, 1071 (2001)
But many if not most of the recent police killings of largely unarmed citizens involved reaction to apparent or possible violations of law, as noted in lists compiled for 2014 and 2015 to date. In California, courts will permit law enforcement agencies to cite Haynie as authority for refusing to release body camera video because it is the record of an “investigation.” As any crime beat reporter can tell you, police and sheriff’s departments traditionally never release records of an investigation, since the law gives them discretion to deny access. And the breadth of that discretion is underscored by the Supreme Court's broad reading of the investigative records exemption, reaffirmed yesterday in a decision of the California Court of Appeal. That court ruled that a database of license plate numbers —automatically and massively captured by highway cameras installed by police agencies to check against stolen car “hot lists”—is exempt from disclosure as the record of law enforcement investigations.
Reacting with dismay to the court’s decision in American Civil Liberties Union of Southern California et al. v. Superior Court, ACLU attorney Jennifer Lynch told Ars Technica, "based on this interpretation of the California Public Records Act (PRA), other important information like body camera footage would also be exempt . . (t)his means Californians would never be able to use the PRA to . . . get access to footage that could show how law enforcement officers are interacting with the public during protests like the ones that recently occurred in Baltimore."
Accordingly, currently advancing bills that ignore the public access issue or even expressly provide, as does AB 66, that request for recordings “shall be processed in accordance with the California Public Records Act . . .” lead to the same result: most departments saying no in the absence of a Ferguson or Baltimore community revolt. Such, for example, is already the stated position of the police chiefs of Los Angeles and San Diego. Some departments may even double down by contending that since the officer suspected of responsibility for the violence against the citizen is being investigated by the department’s internal affairs unit, the video record is part of his or her personnel file and cannot be released to the public since peace officer personnel records are (or even closed) confidential under other law.
If police body cameras are seriously intended to create transparency and accountability, the law must affirmatively state that they are presumed to be public records. Anything less will leave disclosure to the discretion of law enforcement agencies, whose reflexive practice is to keep disclosure about their work to a minimum.