Q: What can I do if CHP does not honor my right to see public records? A CHP officer crashed near me while I was pulled over (engine off) on the shoulder of a highway in California. He seemed under the influence of something and wrote me a simple speeding ticket, although I was parked on the side of the road. Then I had to wait an hour until his supervisor arrived to question me about how he crashed his car, which had to be towed. He drove into a ditch close to where I was parked, well off the highway.
I reported the officer’s peculiar behavior to the supervisor and she assured me that he was fine and she would know because they had been friends for many years and she would know if he was under the influence of anything. He clearly was under the influence of something and she was protecting him. She told me that under the California Public Records Act I could view, and possibly receive a copy of, the video and audio that was onboard and filming from the officer’s vehicle. I was allowed to leave with my bogus speeding ticket for doing 82 mph in a 65 mph zone.
I called the CHP Office and spoke with the evidence officer who had the tape and had viewed it already. He said he would call me back in a day or two to let me know if he could copy it for me and if he could mail it or if I would have to come down to the Station to view it. I never heard back and he will not take my calls or return my voicemails. I spoke with his superior and he told me that if I pursued the matter that I could be prosecuted for making false reports and I would go to jail for 10 years so I should probably just drop it and pay the ticket.
You may not be able to advise me but is there anything that I can do? I just want to see the video and make it available to the Judge to see in Court when I fight the speeding ticket. I am certain that this video and audio will be incriminating to the officer. I expect that they will destroy the video soon. Is there anything that I can do to get someone outside their agency to go in and obtain the video for me without giving them notice so they do not destroy it?
A: 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). Although a videotape would qualify as a “writing” under Government Code section 6252(g), it may be exempt from disclosure if it is considered an investigatory record of a law enforcement agency. This, of course, would depend on whether the incident involving the CHP officer is under investigation by the department, or whether no investigation was ever pursued in this situation. From what you describe, it sounds like the officer is not under investigation; therefore, it would seem that the dashboard video should be disclosed under the Act.
If an agency determines that a particular record is exempt they “shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Govt. Code § 6255(a). No exemption clearly applies that would prevent release of the CHP officer’s dashboard camera footage, but even if the CHP were claiming some exemption, that exemption would need to be expressly identified.
You may want to make a request in writing to obtain the video footage you are seeking, since this will require the CHP to respond to your request in writing, and if it claims the video is exempt, it will have to explain which exemption applies and how. If this occurs, you can write further to the CHP explaining why you do not believe the exemption applies. Additionally, making a Public Records Request is not punishable in any criminal capacity.
You can find more information about the Public Records Act, including a sample request letter, on the FAC’s website here.
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.