In Sacramento Television Stations Inc. v. Superior Court,[1] a Court of Appeal concluded that the record did not disclose substantial evidence for a superior court’s finding that the “active investigation” exemption to disclosure of recordings involving the discharge of a firearm by police applied, explaining that the few facts presented to the superior court lacked meaningful detail.
Background
In April 2023, gunshots were fired in a City of Roseville (“City”) park after California Highway Patrol (“CHP”) officers attempted to serve a search warrant on Eric J. Abril. When Roseville Police Department (“Roseville PD”) officers responded to the park, they understood that a CHP officer had been shot and that Abril had a gun and was holding two civilian hostages. Multiple Roseville PD officers fired shots, and a wounded Abril was captured at approximately 1:13 p.m. Both hostages sustained gunshot wounds, one of them fatally.
Later that month, Sacramento Television Stations Inc. doing business as CBS News Sacramento (“Sac TV”) sought the release of police body camera and dashboard camera footage of what occurred. In June 2023, a Roseville PD lieutenant responded by email that officers “exchanged gunfire with … Abril between approximately 12:38 p.m. and 12:57 p.m.,” and “[w]hile a much larger criminal event occurred, the incident involving the discharge of a firearm at a person is the only ‘critical incident’ involving” RosevillePD. (Italics added.) The lieutenant’s email included a link to “portions of the audio/video records related to the involved officers,” specifically: (a) four 39-second clips of body camera footage (with audio and video) from four different Roseville PD officers, and (b) two audio clips of radio communications — one nearly three minutes long and the other 27 seconds long. Later, a second Sac TV reporter sent an email stating that Roseville PD was required to release additional footage, and that a broad obligation of disclosure was required by state law. The email stated: “We are requesting the full footage from all” body cameras “and dash cameras at the scene of the … incident on April 6th — beginning with” officers’ “arrival at [the] [p]ark … through the time the suspect was apprehended and taken into custody (removed from the park).” The Roseville PD lieutenant responded that Roseville PD had released everything it was legally required to disclose and asserted that the reporter’s e-mail “conflate[d] the overall criminal event with the narrow ‘critical incident.’”
In February 2024, Sac TV filed a petition for writ of mandate in the superior court seeking an order directing the City to immediately disclose the requested materials, seeking “recordings from the moment that Roseville PD was dispatched after hearing ‘shots fired,’ to the time that law enforcement apprehended the armed suspect and secured the scene, approximately one hour later.”
In a July 2024 hearing, a City attorney indicated that the four 39-second clips of body camera footage the City released to Sac TV constituted the total time period in which Roseville PD officers fired six shots when they responded to the park on April 6: “four in rapid succession from one officer, and then two lone shots from two other officers.” In supplemental briefing, the City argued the trial court’s order sealing certain exhibits presented at Abril’s preliminary hearing and a prosecutor’s declaration made in support of that order (a) barred Sac TV’s requested relief under the California Public Records Act (“CPRA”; Gov. Code section 7920.000 et seq.), and (b) demonstratedwhy the release of more footage would substantially interfere with an ongoing investigation.
The superior court concluded that body camera recordings capturing the moments before and after Roseville PD officers fired at a suspect provided insufficient context to satisfy CPRA’s Section 7923.625, subdivision (e). However, it declined to determine how much additional disclosure was required, finding that an exemption applied: further release of requested recordings would substantially interfere with an active investigation. (See Section 7923.625(a)(2).) Accordingly, the superior court denied Sac TV’s mandate petition seeking an order compelling the City to disclose more recordings. Sac TV filed a petition for writ of mandate seeking review and reversal of the superior court’s ruling.
Discussion
The California Third District Court of Appeal explained that the CPRA generally requires disclosure of public records upon request and establishes a presumptive right of access to any record created or maintained by a public agency that relates to the agency’s business, unless a statutory exception applies. (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616.)
The Court observed that in 2018, the Legislature passed and the Governor signed into law Assembly Bill No. 748.[2] Before Assembly Bill No. 748, public agencies generally could decline to release body camera footage by invoking a CPRA exemption for law enforcement investigatory records. Assembly Bill No. 748 limited the scope of this investigatory exemption by providing specific guidelines to govern the disclosure of certain recordings held by law enforcement. Assembly Bill No. 748 added what is now Section 7923.625 of CPRA, which provides in relevant part: “Notwithstanding any other provision of this article … a video or audio recording that relates to a critical incident, as defined in subdivision (e), may be withheld only as follows”: during an “active criminal or administrative investigation,” disclosure may be delayed for no longer than 45 days if disclosure would “substantially interfere with the investigation, such as by endangering the safety of a witness or a confidential source” (Section 7923.625(a)(1), italics added); after 45 days and up to one year, an agency may continue to delay disclosure of a recording “if the agency demonstrates that disclosure would substantially interfere with the investigation,” and beyond one year the agency may continue to delay disclosure “only if the agency demonstrates by clear and convincing evidence that disclosure would substantially interfere with the investigation” (Section 7923.625(a)(2), italics added).
Subdivision (e) defines the phrase “relates to a critical incident” and provides: “For purposes of this section, a video or audio recording relates to a critical incident if it depicts any of the following incidents: [¶] (1) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.” (Section 7923.625(e)(1).)
Sac TV argued the superior court erred in finding that the City demonstrated by clear and convincing evidence that further disclosure of requested recordings would substantially interfere with “the ongoing, active investigation in” Abril’s criminal case because a pending criminal prosecution is not an “active investigation” within the meaning of subdivision (a); and also because the City presented no evidence explaining how, even if a pending prosecution is an active investigation under Assembly Bill No. 748, disclosure would have substantially interfered with it.
The Third District concluded that the record did not disclose substantial evidence for the trial court’s finding that the “active investigation” exemption applied here, explaining that the few facts presented to the superior court lacked meaningful detail. As a definitional matter, the Court agreed with the thrust of Sac TV’s position that a pending criminal prosecution, by itself and without more information, is not an “active investigation” within the meaning of Section 7923.625, subdivision (a). The existence of a pending criminal prosecution was not enough to establish there was an active investigation because the prosecutor’s stated concerns about victim trauma and impairment of fair trial rights did not show how disclosure would substantially interfere with an active investigation.
The Court found that the totality of the evidence appeared to consist of statements in a declaration by Abril’s prosecutor that it was the People’s concern that the release of certain images presented at Abril’s preliminary hearing “would create traumatic publicity for the victims and would greatly impair” Abril’s “ability to receive a fair jury trial.” However, the Third District stated that a prosecutor’s stated concerns about victim trauma and impairment of a criminal defendant’s right to a fair trial in a pending criminal prosecution, however legitimate, do not — without more detail — demonstrate how disclosure of certain recordings will substantially interfere with an active investigation. (Cf. Becerra v. Superior Court (1st Dist. 2020) 44 Cal.App.5th 897, 930 [ruling in a CPRA matter that the declaration of a senior assistant attorney general “was lacking in meaningful detail” and “fell short of demonstrating that public fiscal and administrative concerns … clearly outweigh[ed] the public interest in disclosure”]; id. at p. 931 [the declaration “alluded to” certain matters “but … provided no specifics”].)
The Third District granted Sac TV’s petition for writ of mandate, and directed the superior court to (1) vacate its October 2024 ruling that the “active investigation” exemption of subdivision (a) applied to Sac TV’s request for disclosure of the City’s recordings of the April 6 occurrence and (2) hold further proceedings to determine how much more disclosure would be required, including an in camera examination of the City’s recordings, consistent with the reasoning in its opinion.
HOW THIS AFFECTS YOUR AGENCY
Agencies may note that the City contended that the phrase “‘incident involving the discharge of a firearm at a person by a peace officer’” in subdivision (e) of Section 7923.625 means “the context leading up to the discharge, the discharge itself, and the officer’s disengagement following the discharge—here no more than thirty-nine (39) seconds for each discharge.”The City drew a distinction between the “‘critical incident’” that Section 7923.625 is concerned with and the “larger criminal event” during which the critical incident transpired. In the City’s view, an incident involving a firearm discharge is a “situation that is a separate unit of experience that includes a firearm discharge.” Amicus curiae supported the City in arguing the April 6 occurrence encompassed “a series of incidents,” of which the officer-involved shooting was just one.
However, the Court of Appeal found this construction too narrow as applied here. Meanwhile, the Court found Sac TV’s construction too broad. The appellate court was reluctant to introduce a legal rule “draw[ing] temporal bright lines defining the starting point and endpoint of an ‘incident involving’ an officer’s discharge of a firearm at a person within the meaning of subdivision (e) of Section 7923.625. Instead, the Court of Appeal directed the lower court to hold further proceedings to determine the extent of disclosure of recorded information. It seems the precise parameters of the “incident involving” term has not yet been clarified by the courts.
As always, if you wish to discuss this matter in greater detail, please feel free to contact Jim Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com
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[1] 111 Cal. App. 5th 984 (3rd Dist. 2025).
[2] See Sen. Rules Com., Off. of Sen. Floor Analysis, 3d reading analysis of Assem. Bill No. 748 (2017–2018 Reg. Sess.) as amended Aug. 23, 2018, pp. 7–8; Assem. Com. on Privacy and Consumer Protection, Analysis of Assem. Bill No. 748 (2017–2018 Reg. Sess.) as amended Aug. 23, 2018, pp. 4–5.