Legal Alerts Nov 2, 2016

Request to Hear Police Video Case Denied by California Supreme Court

Ruling that Police Arrest Videos Are Not Confidential Personnel Records Will Stand

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The California Supreme Court has decided to not reconsider a recent appellate ruling establishing a statewide precedent that police arrest videos cannot be considered confidential officer personnel records, and thus that they cannot be shielded from public view. The Court’s decision relates to an ongoing battle between the City of Eureka and the North Coast Journal over public access to video depicting the arrest of a 14-year-old suspect that led to criminal excessive force allegations against an officer.

The decision by the Supreme Court simply declined to de-publish the previous ruling in the case, meaning the appellate court’s decision stands and can be cited as precedent going forward. The appellate court concluded that video of an arrest captured by a patrol car’s dashboard camera is not a confidential "personnel" record, and thus is not protected by Pitchess statutes. As a result, the court ordered a portion of the arrest video in question be released to a local reporter.

The court determined video footage of an arrest is not information traditionally considered subject to a Pitchess motion, such as confidential citizen complaints and any internal investigations of an officer, but rather is information which would form the basis of a criminal complaint against an officer. Because an arrest video does not relate to an officer’s "advancement, appraisal, or discipline," it is not a "personnel record" for purposes of Pitchess statutes. The court held only records generated in connection with appraisal or discipline are protected from disclosure, not records that may eventually result in appraisal or discipline. Thus, though an arrest video may lead to an internal investigation, only records produced as part of any investigation would be protected by Pitchess statutes.

The appellate court expressed no opinion on whether the arrest video would be considered a public record under the California Public Records Act, leaving that an open question for the moment.

This case narrows the options of a law enforcement agency seeking to keep video taken in the field from disclosure. While the case itself arguably furthers efforts to promote transparency in law enforcement, the widespread effects of holding these records are not protected by Pitchess statutes remains to be seen. Law enforcement agencies can no longer claim these records are part of a confidential personnel record — yet footage taken by dashboard or body worn cameras may still be exempt from disclosure under the Public Records Act or other provisions of California law. Prior to disclosing any record that may contain sensitive or confidential information, law enforcement agencies should seek advice from their attorneys to determine the best course of action. Compliance with Public Records Act requests must be carefully conducted and scrutinized, both to ensure complete disclosure and to assure that material covered by legal privileges or otherwise exempt from disclosure under the Act is not inadvertently disclosed.

For more information regarding this new decision and how it impacts your agency or public safety department, please contact one of the attorney authors of this Legal Alert listed at the right in the firm’s Public Safety group, or your BB&K attorney.

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