BILL ANALYSIS Ó
AB 69
Page 1
Date of Hearing: April 30, 2015
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Mike Gatto, Chair
AB 69
(Rodriguez) - As Amended April 21, 2015
SUBJECT: Peace officers: body-worn cameras
SUMMARY: Specifies a set of "best practices" that any law
enforcement agency, department or entity establishing policies
and procedures for the implementation and operation of a
body-worn camera system must consider, and declares any data
recorded thereby to be the property of the agency which produced
it. Specifically, this bill:
1)Requires law enforcement agencies, departments, or entities
that establish policies and procedures for the implementation
and operation of a body-worn camera system to consider the
following best practices:
a) Designate the person responsible for downloading the
recorded data from the body-worn camera, as specified.
b) Establish when data should be downloaded to ensure
the data is entered into the system in a timely manner,
the cameras are properly maintained and ready for the
next use, and for purposes of tagging and categorizing
the data.
c) Establish specific measures to prevent data
AB 69
Page 2
tampering, deleting, and copying, including prohibiting
the unauthorized use, duplication, or distribution of
body-worn camera data.
d) Categorize and tag body-worn camera video at the
time the data is downloaded and classified according to
the type of event or incident captured in the data.
e) Specifically state the length of time that recorded
data shall be stored, as follows:
i. Except as provided below, a law
enforcement agency shall retain non-evidentiary data
including video and audio recorded by a body-worn
camera for a minimum of one year, after which it
will be erased, destroyed, or recycled.
ii. A law enforcement agency shall retain
evidentiary data including video and audio recorded
by a body-worn camera under this section for a
minimum of three years under any of the following
situations:
1. The recording is of an incident
involving the use of force by a peace officer
or an officer-involved shooting.
2. The recording is of an incident
that leads to the detention or arrest of an
individual.
3. The recording is relevant to a
formal or informal complaint against a law
enforcement officer or a law enforcement
agency.
AB 69
Page 3
iii. If evidence that may be relevant to a
criminal prosecution is obtained from a recording
made by a body-worn camera, the law enforcement
agency shall retain the recording for any time
beyond that otherwise required, and in the same
manner as is required by law for other evidence that
may be relevant to a criminal prosecution.
f) Specify where the body-worn camera data will be
stored.
g) Consider certain factors for protecting the security
and integrity of the data where a third-party vendor is
used to manage the data storage system.
2)Defines, for purposes of the required consideration, the term
"evidentiary data" to mean "data of an incident or encounter
that could prove useful for investigative purposes, including,
but not limited to, a crime, an arrest or citation, a search,
a use of force incident, or a confrontational encounter with a
member of the public."
3)Clarifies that the retention period for evidentiary data is
specified in state evidentiary laws.
4)Defines, for purposes of the required consideration, the term
"nonevidentiary data" to mean "data that does not necessarily
have value to aid in an investigation or prosecution, such as
data of an incident or encounter that does not lead to an
arrest or citation, or data of general activities the officer
might perform while on duty."
5)Declares all recorded media, images, and audio from body-worn
cameras to be the property of the law enforcement agency,
AB 69
Page 4
department, or entity that produced it, and may not be copied,
released, or disseminated without the written consent of the
head of the agency, unless otherwise authorized by law.
6)Declares the intent of the Legislature to establish policies
and procedures based on best practices for downloading and
storing data recorded by a body-worn camera worn by a peace
officer.
EXISTING LAW:
1)Makes it a crime to intentionally record a confidential
communication without the consent of all parties to the
communication. (Penal Code (PC) Section 632, subd. (a))
2)Exempts specified peace officers from that provision if they
are acting within the scope of their authority. (PC 633)
3)Generally requires, pursuant to the CPRA, that public agencies
disclose a government record to the public upon request,
unless there is a specific reason to withhold it or if a
public agency can establish that the public interest in
nondisclosure clearly outweighs the public interest in
disclosure. (Government Code Section 6250, et seq.)
FISCAL EFFECT: None. This bill is currently keyed non-fiscal
by the Legislative Counsel.
COMMENTS:
AB 69
Page 5
1)Purpose of this bill . This bill is intended to provide law
enforcement agencies with a list of best practices for the
implementation of body-worn cameras to consider when
developing their own policies and procedures. AB 69 is
author-sponsored.
2)Author's statement. According to the author, "Body-worn
cameras are the newest law enforcement tool being implemented
by several police departments statewide to capture law
enforcement officers' interactions with the public..."
According to a September 2014 report by the U.S. Department of
Justice (DOJ), "there is a correlation between the use of
body-worn cameras and the reduction of excessive use of force
complaints. Benefits cited from having law enforcement
officers wear cameras include documenting evidence; providing
the opportunity for officer training by reviewing data of
different situations to ensure officers are following best
practices and improving ways to best handle an incident;
preventing and resolving citizen complaints by members of the
public; and strengthening law enforcement transparency and
accountability. However, there are also concerns that need to
be addressed as we continue to learn how this new developing
technology actually works in the field including privacy
rights and the impact on community relations.
"Although many law enforcement departments currently using
body-worn cameras have formal policies covering some key
issues, such as when to record and how long to retain
recordings, those policies will likely need to evolve as
departments develop better understandings of how body-worn
cameras affect policing practices on the ground.
AB 69
Page 6
"AB 69 seeks to provide guidelines for developing and
implementing policies and procedures for downloading and
storing data from body-worn cameras."
3)The use of body cameras in law enforcement . As a result of a
string of well-publicized incidents involving the use of force
by law enforcement officers against African-American men,
beginning with the shooting of Michael Brown in Ferguson,
Missouri, on August 9, 2014, a public debate has emerged over
the use of body-worn cameras by peace officers. According to
the National Conference of State Legislatures, there are no
fewer than 30 states currently considering some form of
legislation on the topic.
A body-worn camera is a small video camera - typically attached
to an officer's clothing, helmet or sunglasses - can capture,
from an officer's point of view, video and audio recordings of
activities, including traffic stops, arrests, searches,
interrogations, and critical incidents such as
officer-involved shootings.
There is substantial evidence to suggest that body-worn cameras
can have positive effects on policing. A 2012 study of the
Rialto, CA police department's use of body-worn cameras found
that the devices were correlated with a 60% reduction in
officer use of force incidents following camera deployment,
with twice the number of use of force incidents reported among
the group of officers without cameras. The report also found
an 88% reduction in the number of citizens' complaints in the
year after cameras were introduced. To explain the effect of
body-worn cameras, the Rialto Chief of Police was quoted as
saying, "Whether the reduced number of complaints was because
AB 69
Page 7
of the officers behaving better or the citizens behaving
better - well, it was probably a little bit of both."
According to a November 2014 report by the U.S. Department of
Justice's Office of Community Oriented Policing Services and
the Police Executive Research Forum (PERF), a broad survey of
police departments that had deployed body-worn cameras has
many benefits: "body-worn cameras are useful for documenting
evidence; officer training; preventing and resolving
complaints brought by members of the public; and strengthening
police transparency, performance and
accountability...body-worn cameras [also] help police
departments ensure events are also captured from an officer's
perspective." However, the report also notes that "[t]he use
of body-worn cameras also raises important questions about
privacy and trust."
4)The California Public Records Act . As noted above, the video
and audio data produced by peace officers with body-worn
cameras is considered a public record under the California
Public Records Act (CPRA), and is therefore subject to
disclosure to the public unless otherwise exempt.
The CPRA requires public agencies to generally respond to a
records request within 10 days, and make eligible public
records promptly available to a requester who pays the direct
costs of duplication. In order to withhold a record, a public
agency must demonstrate that a record is exempt under express
provisions of the CPRA, or else must show that "on the facts
of the particular case the public interest served by not
disclosing the record clearly outweighs the public interest
served by disclosure of the record." Whenever a state or
local agency discloses a public record that would otherwise be
exempt, that disclosure constitutes a waiver of the exemption.
The CPRA provides a detailed list of documents that are exempt
from disclosure, including: personnel files; records of
AB 69
Page 8
complaints; and investigatory and security files complied by
state or local law enforcement agencies, although specified
written information must be provided regarding the individuals
involved in those incidents or investigations.
5)Privacy considerations raised by this bill . This bill in its
current form does not mandate the use of any of the specified
'best practices' - it simply requires a law enforce agency to
consider these best practices when establishing policies and
procedures for the implementation and operation of a body-worn
camera system. In essence, the provisions of this bill are
advisory only, and largely restricted to matters internal to
the law enforcement agency implementing the system and the use
of the data within the criminal justice system.
However, the bill contains one provision that deals directly
with the privacy of civilians not formally the subject of a
law enforcement investigation: the recommendation that a law
enforcement agency retain non-evidentiary video and audio
recordings for a minimum of one year before they may be
erased, destroyed or recycled.
The PERF report from which many of the best practices in this
bill are taken does not formally recommend that
non-evidentiary data be retained for one year. It does
recommend that the agency disclose the length of time such
data is retained, and notes that "many agencies provide 60-day
or 90-day retention times" for non-evidentiary data. It also
says that states should set retention times in light of other
factors, such as the agencies current retention policies for
other data, the openness of the state's public records laws,
the need to preserve footage to promote transparency and
investigate citizen's complaints, and the agency's capacity
for data storage.
To the extent that the PERF report does not actually recommend a
one-year retention period for non-evidentiary data, instead
pointing to 60-day or 90-day periods as closer to the norm, it
AB 69
Page 9
would provide greater protection for individual privacy to
shorten the recommended retention period, thereby reducing the
amount of time that footage of civilians not under suspicion
of having committed a crime is retained as a public record and
available for disclosure to the public.
The Committee may wish to consider amending the recommended
'best practice' to reflect a shorter 60-day retention period
for non-evidentiary data:
Page 2, line 35, strike and replace the words "one year"
with "60 days"
6)Related Legislation. AB 66 (Weber) establishes mandatory
requirements and recommended guidelines for the use of
body-worn cameras by peace officers and the handling of the
resulting video and audio data. AB 65 is currently pending in
the Assembly Privacy and Consumer Protection Committee.
AB 65 (Alejo) would redirect funds from the Driver Training
Penalty Assessment Fund and allocates that money to the Board
of State and Community Corrections to be used to fund local
law enforcement agencies to operate a body-worn camera
program. AB 65 is currently pending on the Suspense File in
the Assembly Appropriations Committee.
AB 1246 (Quirk) would prohibit the disclosure of a recording
made by a body-worn camera, except to the person whose image
is recorded by the body worn camera. AB 1246 is currently
pending in the Assembly Public Safety Committee.
AB 69
Page 10
SB 175 (Huff) would require each department or agency that
employs peace officers and that elects to require those peace
officers to wear body-worn cameras to develop a policy
relating to the use of body-worn cameras. SB 175 is currently
pending in on the Senate Floor.
SB 195 (Anderson) would state the intent of the Legislature to
enact legislation that protects the privacy of individuals
recorded by body-worn cameras utilized by law enforcement
officers and the privacy of the officers wearing these
cameras. SB 195 is currently pending in the Senate Rules
Committee.
7)Double-referral . This bill was double-referred to the
Assembly Public Safety Committee, where it was heard on April
7, 2015, and passed on a 7-0 vote.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file.
AB 69
Page 11
Opposition
None on file.
Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200