Obtaining Copies of Video

Answer

From the information in your submission, it is not clear who is in possession of the videotape you reference.  If the Metropolitan Transit System has possession of the video, you may want to submit a request under the Public Records Act (“PRA”) for a copy of it.  (A sample PRA request letter can be found on the CFAC website at the following link: https://firstamendmentcoalition.org/cpra-primer/sample-cpra-request-letter/.)  Under the PRA, public records (which include “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,” Govt. Code Section 6252(e)), are open to the public unless a specific provision of the PRA or other law exempts them from disclosure.  The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days.  (Gov’t Code § 6253).  If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek.  (Gov’t code § 6255).  Although the Metropolitan Transit System may attempt to withhold the video pursuant to section 6254 (the pending litigation exemption) believing they may be involved in litigation pursuant to the incident you reference, such exemption is inapplicable where, as here, the records were created in the agency’s ordinary course of business or for other purposes prior to the litigation.

Even if the video is in the hands of a law enforcement agency, you may be able to obtain a copy of it through a PRA request.  Please note, the law enforcement agency may attempt to withhold the video pursuant to the law enforcement exemption under section 6254(f), which exempts “records of investigations” as well as “investigatory files” held by law enforcement agencies.  However, where, as here, the record was created for routine purposes, and not specifically created as part of a law enforcement investigation, (in other words, it was in existence prior to any law enforcement investigation being started), such record usually cannot properly be withheld pursuant to this exemption.  Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893 (1984).

Finally, if you are a party to a case involving the trolley officer, either because you are being charged with a crime or because you are suing the officer in a civil case, you may be able to obtain a copy of the video from the law enforcement agency through a procedure known as a Pitchess motion.  Sections 1043 and 1045 of the California Evidence Code set forth a procedure for making such a motion.  Unfortunately, this is not a simple procedure, and its application to the facts of your case is beyond the scope of what we can offer through this hotline.  If you are already represented by counsel, this is something you might want to discuss with your lawyer.  Alternatively, you might want to check the California state bar website for an attorney with expertise in this area.  Here is a link: http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10182 In addition, if the video is in the hands of a private third-party (such as a business), you may be able to obtain a copy of the video through a subpoena.  This, again, is something you may want to discuss with your lawyer.