CA Public Records Legislation: AB 748 would provide additional law enforcement transparency through increased access to police audio and video recordings
Legislation recently passed by the State Senate and State Assembly will provide additional law enforcement accountability by allowing the public to more easily access certain police audio and video recordings, such as body camera footage. The legislation, AB 748, is currently awaiting the Governor’s signature.
Currently, the California Public Records Act (“CPRA”) contains a provision that allows law enforcement agencies to withhold records of investigations from the public. Cal. Gov’t Code § 6254(f). Law enforcement agencies often cite this exemption to keep a wide variety of information secret—such as arrest reports, 911 calls, security camera footage, and internal reviews of officer misconduct. Given the enormous power that law enforcement agencies wield, from the power to arrest and detain individuals to the power to use lethal force, public access to this information could be a powerful tool to understanding and challenging law enforcement abuses.
AB 748 would constitute an important step toward increasing transparency in law enforcement. The bill amends the CPRA to require disclosure of video or audio recordings that relate to a “critical incident.” Recordings relate to critical incidents if they depict either 1) an incident involving the discharge of a firearm at a person by an officer, or 2) an incident in which the use of force by an officer against a person resulted in death or great bodily injury. This provision would apply to body camera footage, dash camera footage, recordings of 911 calls, and other video and audio of these critical incidents. If enacted, the bill would go into effect on July 1, 2019.
The bill includes some limiting language that allows law enforcement agencies to withhold these recordings for up to 45 days, with the possibility of extensions up to one year, if disclosure would “substantially interfere” with an active criminal or administrative investigation. After one year, an agency may continue to withhold a recording if it can establish by clear and convincing evidence that disclosure would substantially interfere with the investigation, and it must reassess this conclusion every 30 days. As is true every time a public agency withholds records, the burden is on the agency to establish that the withholding is legally justified. Cal. Gov’t Code § 6255(a).
The agency may also withhold or redact a recording if its release would violate the reasonable expectation of privacy of a subject depicted in the recording. Such a recording must still be disclosed to the recorded individual whose privacy is being protected or their authorized representative.
Because of the bill’s narrow parameters, it provides only limited transparency to law enforcement. For example, the bill would not provide access to law enforcement recordings—including recordings of incidents of clear officer misconduct—if the officer didn’t discharge a firearm or cause serious physical harm to a member of the public. Nonetheless, the bill provides critical public access to records of some of the most egregious law enforcement misconduct.
AB 748 was presented to Governor Brown for his consideration on September 7, 2018. If the Governor signs the bill, California will take a significant step toward ensuring that law enforcement officers are able to be held accountable for their actions.
Anna von Herrmann is an attorney in solo practice with experience in enforcing the California Public Records Act. Ms. von Herrmann can be contacted at anna@vonherrmannlegal.com.
