A&A: Is footage taken by an officer wearing a body-camera a public document?

Q: How do I go about requesting from the Police Dept. footage  taken with a hidden camera worn by one of their officers? Also if it actually wasn’t a Dept. issued body camera but either a personal or Dept. Issued cell/smart phone set up as a camera worn on the officer’s person, does that footage qualify under the Public Records Act?

A: If the body camera footage was on a Police Department camera, you can request the footage by submitting a California Public Records Act a written request to the police department specifically describing the footage that you seek.

Under the Public Records Act, the Police Department should respond to your request within 10 days, letting you know whether it will release the footage or not, and if not, exactly why (citing the specific exemption and describing how it applies to the records that you seek).  Gov’t Code 6253(c). The California Public Records Act applies to “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency.”  Govt. Code § 6252(e).

Public records are presumed open unless they fall into a statutory exemption under Government Code section 6254.  The Public Records Act defines “public records” as “includ[ing] any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”  Gov’t Code § 6252(e) (emphasis added).

You can find a sample PRA request letter on the FAC’s website, available at https://firstamendmentcoalition.org/public-records-2/sample-cpra-request-letter/.

In the case that the footage was taken on a personal cellphone or camera, it will be more difficult to obtain the footage through the CPRA.  Unfortunately, the California Court of Appeal recently held the California Public Records Act does not require public agencies to disclose officials’ communications about public business on personal email and cell phone accounts.  City of San Jose et al. v. Superior Court of Santa Clara County, Cal. App.6th (filed March 27, 2014) opinion available at: http://ift.tt/1i7JuU9

The Court held communications stored solely on private accounts are outside the reach of public records requests under the CPRA.   It is becoming increasingly common for public officials to conduct public business using private accounts.  While members of the public may seek disclosure of officials’ voicemails, text messages, and emails stored on public agencies’ accounts, communications on private accounts are protected from CPRA requests.

The Court found officials’ communications stored solely on personal devices don’t fall within reach of CPRA requests because they are not “owned, used, or retained” by the public agency.  The Court acknowledged public policy concerns of the public’s right to know versus the burden on the agency to provide the information.  However, the Court determined the Legislature is better suited to make such public policy decisions.

This ruling clearly leaves a huge loophole in the CPRA and raises important public policy concerns.  Some legislative bodies are working to enact legislative solutions to this issue. In fact, the City of San Jose adopted a resolution addressing this very issue after the plaintiff filed his lawsuit.  Resolution No. 75293 was adopted on March 2, 2010.  The resolution revised City Council Policy 0-33 and allows public access to all communications of the mayor, City Council members, or their staff, regarding public business on private devices.

The Court acknowledged public agencies have the right to create its own rules for disclosure of communications related to public business.  So it is possible that the San Diego Police Department will still release the footage, even if it is not required to under the CPRA.  It may be worthwhile to submit a written public records request for the footage to see if the Police Department will release the information to you.

In general, the ultimate recourse for enforcing a Public Records Act request would be to file a lawsuit under Gov’t Code § 6259.  Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate, which is a type of order directing the public agency to take a specified action.  Attorney’s fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Gov’t Code § 6259(d).  I have attached a sample petition, together with a memorandum of points and authorities.  Please take note that every case is different and various rules and laws may have changed between when these materials were created and now, so please proceed accordingly in any litigation that you might institute against the district.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.