On July 1, 2019, video and audio relating to critical police incidents, which are defined as officer-involved shootings and certain uses of force, will no longer be confidential under California law. In our October 2018 webinar on AB 748 and SB 1421 issues, we discussed the basics of AB 748 and how it will impact law enforcement agencies throughout the state. In addition to the overview provided by our webinar, we have also analyzed four issues that are certain to be discussed once AB 748 takes effect.
Issue 1: Are criminal investigations alone going to be sufficient to delay disclosure?
No. First, AB 748 requires that the criminal investigation be “active.” Second, it sets different requirements depending on how long the agency wishes to delay disclosure. To delay disclosure for up 45 days, disclosure would have to “substantially interfere” with the criminal investigation. In addition, the agency would have to notify the requestor in writing of the basis and provide an estimated release date. Similarly, to delay disclosure from 45 days to one year, disclosure would have to “substantially interfere” with the criminal investigation. However, this time, the Bill requires that the agency reassess every 30 days in addition to notifying the requestor in writing of the basis. For delays past a year, the law enforcement agency would have to demonstrate by “clear and convincing evidence” that disclosure would “substantially interfere” with the criminal investigation and also reassess every 30 days. The practical impact is that a delay will not be justified simply due to the existence of a criminal investigation and the ability to withhold records past 45 days will be limited to a few extreme circumstances.
Issue 2: What hypothetical scenario would support a delayed disclosure?
Based on our experience litigating civil rights matters, there are limited scenarios that would warrant withholding the materials past 45 days. If, for example, criminal investigators were attempting to locate civilian witnesses to an officer-involved shooting, they may reasonably conclude that disclosure of the incident video would interfere with their ability to obtain an accurate statement from the civilian witness. Most of these efforts, however, would be resolved within 45 days of the incident. To the extent that such an issue was unresolved, an agency might be able to withhold materials past the 45-day mark.
Issue 3: Is disclosure limited to body camera footage?
No. Under AB 748, commencing July 1, 2019, all video or audio recordings that relate to a critical incident must be released subject to some exceptions. This would encompass body camera footage, dash camera footage, surveillance footage, cell phone recordings, radio traffic, 911 calls, and any other video or audio recordings that law enforcement agencies may have. Recordings obtained from private citizens must be released subject to the exceptions of AB 748.
Issue 4: Is Section 6254(f)(4)(B)(iii) missing a word?
Probably, yes. Government Code § 6254(f)(4)(B)(iii) reads as though it is missing a word. AB 748 contains a process through which an agency can withhold materials if disclosure would violate the reasonable expectation of privacy of a subject in the video. The statute, however, requires the materials to be disclosed to the subject, heirs, or representatives. Section 6254(f)(4)(B)(iii) discusses what should occur when the subject’s privacy is at issue yet disclosure to the subject or his heirs would harm the process for an ongoing investigation. The context of the statutory provision is that the agency can continue to withhold the materials due to the investigative harm even though the materials would normally be disclosed to the subject; the exact statutory language of the statute differs, as the statute requires the agency to “provide the video or audio recording.” We have reviewed this provision numerous times and have come to the conclusion that the intent of the statute was to allow the materials to be withheld in a qualifying scenario, yet the statutory language requires disclosure in such a qualifying scenario. While this exact scenario may be rare, when the scenario does occur, we expect to see litigation to determine the statutory meaning.