THE “IN CAR” VIDEO OF AN ARREST, USED IN AN I.A. INVESTIGATION, DOES NOT BECOME A “PERSONNEL RECORD”
On July 19, 2016, the First District Court of Appeal held, in City of Eureka v. Superior Court of Humboldt County (Greenson), that even if an “arrest video was considered or relied upon during [an] internal affairs investigation, it would not transmute the video into confidential personnel information. The arrest video ‘was generated independently and in advance of the administrative investigation.’”
Facts
“In December 2012, Eureka Police Sergeant Adam Laird and other Eureka police officers arrested H.M. (the minor). Sergeant Laird chased the minor, who ‘was pushed to the ground, fell to the ground, or just gave up and laid on the ground.’ Another police officer arrived ‘in his patrol vehicle with its in-car video equipment activated[.]’ The patrol car’s mobile audio video (MAV) recording system produced several videos of the arrest. The prosecution filed a Welfare and Institutions Code Section 602 petition against the minor, but later withdrew it.”
“A citizen lodged a complaint regarding the officers’ handling of the minor and the Eureka Police Department conducted an internal affairs investigation. The prosecution charged Sergeant Laird with misdemeanor assault by a police officer without lawful necessity and with making a false report. Both the prosecution and defense hired experts to review the evidence against Sergeant Laird. After reviewing the evidence – including the arrest video – the experts determined Sergeant Laird did not use excessive force during the arrest. The prosecution dismissed the charges against Sergeant Laird in January 2014.”
In January 2014, Thad Greenhouse, a local journalist, wrote articles in two local newspapers about the arrest and subsequent litigation. In August 2014, Greenhouse requested release of the video under the California Public Records Act, and Welfare and Institutions Code §827 which authorizes limited disclosure of juvenile court records.
“The City denied the request, ‘citing discretionary exemptions for personnel records and investigative files.’” The Humboldt County Probation Department (the County) also objected, claiming Greenson failed to demonstrate good cause for disclosure under Welfare and Institutions Code §827.
“The City also urged the court to deny Greenson’s request [arguing that] the video was a police officer ‘personnel record’ . . . .” In support of its position, “the City argued the police department had conducted an internal affairs investigation and the video was ‘part of that [investigation]’ and could not be released ‘without a successful Pitchess motion.’” The court indicated it would review the video in camera.
After reviewing the video, the court concluded that “the video was not a confidential police personnel record protected by the Pitchess statutes, explaining the arrest was both the subject of a delinquency investigation and potentially an action which could result in confidential internal personnel proceedings. [Greenson] is not requesting what might otherwise be the subject of a Pitchess type motion such as confidential citizen complaints and the resulting investigation or outcomes of those investigations. He is requesting only that information which would form the basis of the original criminal complaint against [Sergeant Laird] or delinquency proceedings against the minor.”
“The court ordered the City to release the video pursuant to a protective order removing the minor’s name and redacting or blurring his identifying features to conceal his identity. Finally, the court concluded the remainder of the MAV videos were redundant or irrelevant and declined to disclose them; it set a June 2015 hearing to review the redacted video. The day before the June 2015 hearing, the City filed a writ petition seeking to vacate the court’s May 2015 ruling. This court denied the City’s writ petition. The City appealed from the court’s May 2015 order.”
Court’s Discussion
The Court focused its attention primarily on the issue of whether the in car video of the arrest of the minor became part of the officer’s protected personnel file when it was used in the IA investigation? “We need not decide whether the Welfare and Institutions Code §827 would authorize disclosure of Pitchess material in a juvenile case file because we conclude the City has not demonstrated the arrest video is a ‘personnel record’ under §832.7 and 832.8. The arrest video does not come within §832.8, subdivision (d), which defines ‘personnel records’ as those relating a police officer’s ‘advancement, appraisal, or discipline.’”
The Court cited to a recent California Supreme Court case, Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, and stated that “our high court considered a public records act request for the identities of police officers involved in various shootings. The California Supreme Court concluded the information was not covered by the Pitchessstatutes, explaining: ‘Although the Pitchess statutes limit public access to personnel records, including officer names if they are linked to information in personnel records, many records routinely maintained by law enforcement agencies are not personnel records. For example, the information contained in the initial incident reports of an on-duty shooting are typically not ‘personnel records’ as that term is defined in . . . §832.8.”
As to the use of such material in a subsequent personnel investigation, the Supreme Court held that “(i)t may be true that such shootings are routinely investigated by the employing agency, resulting eventually in some sort of officer appraisal or discipline. But only the records generated in connection with that appraisal or discipline would come within the statutory definition of personnel records. We do not read the phrase ‘records relating to . . . [e]mployee . . . appraisal[ ] or discipline’ so broadly as to include every record that might beconsidered for purposes of an officer’s appraisal or discipline, for such a broad reading of the statute would sweep virtually all law enforcement records into the protected category of ‘personnel records.’” (Emphasis in original.)
“(T)he City claimed dashboard camera videos come within §832.8, subdivision (d) because the police department might eventually use the videos to evaluate whether to initiate disciplinary proceedings against a peace officer. We are not persuaded. That officers involved in an incident might face an internal affairs investigation or discipline at some unspecified point in the future but does not transmute arrest videos into disciplinary documentation or confidential personnel information.”
In a footnote, the Court pointed out that “(a)t oral argument, Greenson’s counsel argued the focus of the Pitchess statutes is protecting a peace officer’s reasonable expectation of privacy in his personnel records. . . . According to Greenson’s counsel, Sergeant Laird had no expectation of privacy in the arrest video because it took place on a public street. We agree. ‘A peace officer ordinarily has no substantial interest in maintaining the confidentiality of his or her identity or the fact of his or her employment as a peace officer.’”
HOW THIS AFFECTS YOUR AGENCY
In the instant case, the City attempted to argue that because the video, which captured the chase and arrest of the minor, was ultimately used in a disciplinary proceeding against the officer, it became protected personnel information. The Court of Appeal explicitly rejected that argument.
As noted above, the Court recognized that “officers involved in an incident might face an internal affairs investigation or discipline at some unspecified point in the future [but that] does not transmute arrest videos into disciplinary documentation or confidential personnel information.”
The Court concluded that “the video was not a confidential police personnel record protected by the Pitchess statutes, explaining the arrest was ‘both the subject of a delinquency investigation and potentially actions which couldresult in confidential internal personnel proceedings. [Greenson] is not requesting what might otherwise be the subject of a Pitchess type motion such as confidential citizen complaints and the resulting investigation or outcomes of those investigations. He is requesting only that information which would form the basis of the original criminal complaint against [Sergeant Laird] or delinquency proceedings against the minor.” (Emphasis added.)
What is of some additional interest, however, is that although the City initially argued that the video was exempt from disclosure under the CPRA as part of a “criminal investigative record,” the Court noted that “(w)e express no opinion on whether the arrest video is a public record under the California Public Records Act . . . because the City did not raise these arguments on appeal.”
The California Supreme Court addressed this issue in the case of Williams v. Superior Court (Freedom Newspapers, Inc.) (1993) 5 Cal.4th 337 wherein it held that “(a)t the most basic level, subdivision (f) is a part of §6254, which sets out several exemptions from the CPRA’s general rule of disclosure.”
Gov. Code 6254(f) excerpts from the mandate to disclose public records, “records of complaints to, or investigations conducted by, . . . any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.”
The Williams Court held that “we shall enforce subdivision (f) according to its terms by holding the exemption for investigatory files does not terminate with the conclusion of the investigation. Once an investigation . . . has come into being because there is a concrete and definite prospect of enforcement proceedings at that time, materials that relate to the investigation and, thus, properly belong in the file, remain exempt subject to the terms of the statute.” (Emphasis added.)
It is, and has been, the position of many of us who serve as legal counsel to law enforcement that the in car video, the body worn camera video, or other videos taken of law enforcement activity in public, such as a pursuit and arrest, is exempt from disclosure under the CPRA. However, as noted by the Court, the City did not raise or argue that point on appeal. As such, it was not addressed by the Court of Appeal.
As with all legal issues, it is imperative that you seek out and secure advice and guidance from you agency’s designated legal counsel. However, as always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email atmjm@jones-mayer.com.
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