Q: Fish & Game “wardens” recently arrested me near a remote campground where I had been sitting in my car trying to sleep. My blood alcohol level was .11 and I was charged with a DUI.
During the arrest, a reality TV show camera crew tagging along with the wardens filmed the whole event–including that the wardens were harassing a woman wearing only a see-through nightgown who was alone at night in a remote area.
When I brought out my own video camera and insisted I could film a public proceeding such as my own arrest, the ”warden” brutalized my hand until I had to let go of the camera.
My questions are: 1. am I not allowed to film my own arrest if I am not bothering any other aspect of the arrest? and 2. Does not the warden’s supervisor have a responsibility to review and have a copy of the filming if the tv show has an agreement with the public body of the Dept. of Fish and Game?
A: You have stumbled upon an area of law that is hotly debated around the country at the present time. Just last week, a federal appeals court in Massachusetts, held that individuals have a very strong First Amendment right to record law enforcement officers as they perform their duties in a public place, as long as the filming did not directly interfere with the law enforcement activity. (Glik v. Cunniffe.)
But a different court recently upheld an Illinois law that made such activity illegal in that state. Although there is strong legal support that one does have the right to non-disruptively record their own arrest, there is at present no definitive answer to the question.
Regarding your second question, I am not aware of any legal requirement that imposes on a warden or any officer governmental agent a legal responsibility to review television footage recorded by a TV crew working cooperatively with an agency.
To the extent such a responsibility exists, it would be found in the contract between the agency and the production company, if such a contract does in fact exist, exemption will only apply if two conditions are met: the record is one that will not be retained by the agency, and public interest clearly favors secrecy.
The second likely exemption, found in section 6254(f), exempts from disclosure:
“records of complaints to, or investigations conducted by . . . the office of the Attorney General and the Department of Justice, and any state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes . . . . “
If the investigatory report you seek fits within that wide definition, it will be exempt.
Lastly, section 6255, is a catch-all exemption whereby an agency is permitted to withhold any record for which it can show that public’s interest in secrecy clearly outweighs the public interest in disclosure. Whether this exemption applied will depend on the specific facts involved.
Again, it is most advisable in these situations to ask the agency to specify the exemption or exemptions upon which it relies.
Holme Roberts & Owen 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.