On September 30, 2018 Governor Brown signed into law Assembly Bill 748 (“AB 748”) which added language to the Public Records Act that relates to police investigation records. Beginning July 1, 2019, video or audio recordings of “critical incidents” may only be withheld from the public for a period of longer than 45 days if disclosure would substantially interfere with an active criminal or administrative investigation.[1] “Critical incidents” are defined as a peace officer discharging a firearm at a person, or a use of force that results in serious bodily injury or death.
If the agency withholds an audio or video recording for the 45 days as allowed, it must provide to the requestor the specific basis for the determination that disclosure would substantially interfere with the investigation. Also, the agency may withhold these records beyond the 45 days, and up to a year, if the agency demonstrates that disclosure would substantially interfere with the investigation. An agency will withhold these recordings beyond a year only if the agency demonstrates, by clear and convincing evidence, that disclosure would substantially interfere with the investigation. Under these circumstances, the agency must provide the requestor with the specific basis for this determination, provide the estimated date of disclosure, and must proactively reassess the determination and notify the requestor every 30 days.
If the agency demonstrates that the public interest in withholding audio or video records of a critical incident clearly outweighs the public interest in disclosure in order to avoid violating the reasonable expectation of privacy of someone depicted in the recording, the agency can blur or redact the record to protect this privacy interest. However, the blurring or redacting cannot interfere with the viewer’s ability to comprehend the events captured in the recording.
If the agency determines that the privacy interests of a subject depicted in the records cannot adequately be protected through blurring or redaction, and this privacy interest outweighs the interest in disclosure, the agency may withhold the recording from the public. However, the agency must, upon request, promptly release the record to the person whose privacy is to be protected, to the parent of a minor whose privacy is to be protected, or to the heirs/family members of a decedent whose privacy is to be protected. Surprisingly, the statute also states that, even if disclosure to these persons would substantially interfere with an active criminal or administrative investigation, the agency must still release the records to these persons if being withheld on privacy grounds. In somewhat contradictory language in the following sentence, the statute states, however, that the records may be withheld for 45 days or longer if releasing to the public would substantially interfere with an active investigation as set forth above.
HOW THIS AFFECTS YOUR AGENCY
AB 748 makes significant changes to the Public Records Act concerning the release of audio and video recordings of police investigations that might otherwise be deemed exempt from disclosure pursuant to Government Code section 6254(f). Moreover, it imposes affirmative obligations on agencies withholding documents to periodically update the requesting party if the agency continues to assert certain bases for withholding these documents. It is important to note that the effective date of AB 748 is July 1, 2019. Agencies, therefore, have some time to update their policies and procedures in order to comply with this new law. We recommend that you work with your agency’s legal advisor to ensure that your agency has adequately addressed this new law with policy and/or procedure changes and that appropriate training takes place concerning these new provisions.
As always, if you wish to discuss this matter in greater detail, please feel free to contact us at (714) 446 – 1400 or via email at jrt@jones-mayer.com [for James Touchstone] or kfc@jones-mayer.com [for Keith Collins].
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] Cal Gov. Code § 6254(f)(4).