California Supreme Court Denies Petition for Review in Police Drone Footage Case

The California Supreme Court recently denied the City of Chula Vista’s Petition for Review in Castañares v. Superior Court (Dec. 2023) 98 Cal.App.5th 295, 316, review denied (Apr. 10, 2024) (Castañares).)  In Castañares, the Fourth District Court of Appeal held that drone footage is not automatically exempt from disclosure pursuant to Government Code section 7923.600 as investigatory records under the California Public Records Act (“CPRA”). The Court of Appeal reasoned that (1) the application of the investigatory exemption depends on the purpose of the footage (which could fall under three possible categories) and (2)drone footage could separately be exempted on a case-by-case basis under the “catch-all” exemption codified in Government Code section 7922.000With the Petition’s denial, the Fourth District’s published decision becomes settled law. 

The CPRA and the “Investigatory Exemption” 

The CPRA, modeled after the Freedom of Information Act (5 U.S.C. § 552, et seq.),  codifies the right of every member of the public to inspect public records in any state or local agency’s custody or control. (Cal. Const. art. I, § 3, subd. (b).)  However, the CPRA does not confer an absolute right of access as it balances the goal of public transparency with privacy concerns through exemptions that allow agencies to withhold some public records. One of these CPRA exemptions is found in Government Code section 7923.600, which allows law enforcement agencies to withhold investigatory records from disclosure.  For the exemption to apply, the records sought must be linked to an actual investigation.

In crafting its decision, the Castañares appellate court reconciled two prominent California Supreme Court CPRA cases.  In Haynie v. Superior Ct. (2001) 26 Cal.4th 1061, 1069 (Haynie), the California Supreme Court held that the investigatory exemption applies to records related to a specific incident but acknowledged that “…by including ‘routine’ and ‘everyday’ within the ambit of ‘investigations’ [the legislature did] not mean to shield everything law enforcement officers do from disclosure.” Just four years prior, the California Supreme Court had held that the exemption does not apply to a CPRA request for Automated License Plate Reading (“ALPR”) data because ALPR scanning “does not produce records investigations [and is] not conducted as part of a targeted inquiring into any particular crime or crimes.” (American Civil Liberties Union Foundation v. Superior Ct. (2017) 3 Cal.5th 1032, 1042 (ACLU Foundation).)

“Three Possible Categories” for Drone Footage

Castañares originated from a CPRA request by journalist Arturo Castañares for all drone video footage recorded by the Chula Vista Police Department for a period of one month. The Chula Vista Police Department’s practice was to use the drones as first responders to determine the most effective and safe officer response and maintained a website with “anonymized flight data (including date, time, location, flight paths, and call summaries)”…  as well as “after-action-reports (AARs) wherein the City can respond to questions about drone flights.” (Castañares , supra, 98 Cal.App.5th at 301.)  Chula Vista denied the request for drone footage based on the investigatory records exemption and the trial court ruled in Chula Vista’s favor. The trial court had made an additional finding that “any benefit of turning over the videos was outweighed by the ‘unreasonable burden’ placed on the City in redacting the videos” based on the “catchall” exemption. (Castañares , supra, 98 Cal.App.5th at 300.)  The trial court reasoned that the City already provided a substantial amount of information regarding the drone program on its website and that the additional work to redact the footage did not provide a sufficient benefit to outweigh that burden. (Castañares , supra, 98 Cal.App.5th at 307.)
 
The Fourth District concluded that the facts in Castañares fell somewhere between Haynie (a targeted request for a specific interaction with an officer) and ACLU Foundation (random collection of bulk data), finding “three possible categories” for drone footage and applying the case law to each. (Ibid. at 309-310.)  The first category consists of footage that is part of a case file for a specific investigation. The second category consists of footage used to investigate whether a violation of law was occurring or had occurred but did not create an investigatory file (e.g., a drone dispatched to investigate a possible assault or suspected break in). The Fourth District affirmed the City’s decision that that these two categories fell under the investigatory exemption as a matter of law. (Castañares , supra, 90 Cal.App.5th at 310.)  The third category consists of drone footage used for a factual inquiry such as a response to a 9-1-1 call regarding a water leak, stranded motorist, or a mountain lion in the neighborhood.  The appellate court held that these records did not fall under the investigatory exemption. 

Best Practice: Pre-Categorization and Case-by-Case Analysis

Moving forward, agencies using drones will need to evaluate and categorize footage to determine which category is most applicable, with the possibility that footage may fall somewhere between the second and third category and be subject to disclosure. Any risk analysis should factor in the level of exposure from invoking the investigatory exemption against the principle that, outside specific circumstances, CPRA exemptions are permissive rather than mandatory. (Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 665.) This balance between the mandate for transparency and the privacy interests is difficult to strike, but it is critical that agencies analyze all footage that is subject to disclosure to ensure that they assert applicable exemptions and make redactions that protect privacy of affected individuals.
 
Even if the footage is not part of an investigatory file or part of an investigation pf a crime, other exemptions and bases for redaction may apply. For example, personal identifying information such as license plate numbers and faces should be redacted from drone footage in order to maintain privacy of witnesses, victims, and third parties. The “official information” privilege under Evidence Code section 1040 could also apply as a basis to withhold footage when there is a public interest in confidentiality that “outweighs the necessity for disclosure in the interest of justice.” Notably, the “official information” privilege allows a public entity to prevent another public entity from disclosing the information. (Evid. Code § 1040, subd. (b).) For example, in an open criminal case, the prosecuting agency would need to waive the privilege prior to disclosure even if the law enforcement agency that performed the criminal investigation believed no further investigation is necessary. Similarly, a school disciplinary board could hold the privilege while investigating student misconduct and thereby prevent a law enforcement agency from disclosing the information. (See also, Welf. & Inst. Code § 827.9.)

Finally, law enforcement agencies may still be required to release information derived from drone footage under Government Code section 7923.615 even if the footage itself is withheld. Absent circumstances where disclosure would endanger the safety of a person involved in an investigation or the successful completion of the investigation, the following information must be disclosed: 

• (A) The time, date, and location of occurrence.
• (B) The time and date of the report.
• (C) The name¹ and age of the victim.
• (D) The factual circumstances surrounding the crime or incident.
• (E) A general description of any injuries, property, or weapons involved. (Gov. Code § 7923.615, subds. (a)(2).)

Similar requirements apply when the request is made by a victim of certain crimes (Gov. Code §7923.605, subd. (a).) In some cases, providing information in lieu of the footage itself could be a middle-ground that provides the requester with the information actually sought while allowing the agency to maintain confidentiality despite ambiguity over what drone footage category applies.
 
Public agencies should always consult with their counsel or legal representative when they face uncertainty, especially before denying a CPRA request.
 
For more information, visit our California Public Records Act page or contact a member of BBK’s ARC team specializing in CPRA matters. 

¹Must be withheld if requested by victim. (Gov. Code § 7923.615, subd. (b).)

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