BILL ANALYSIS                                                                                                                                                                                                    



                                                                      AB 69


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          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  








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                 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.








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                     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,  








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            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:  









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           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. 








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            "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  








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            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  








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            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  








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            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. 









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            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.










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          Opposition


          None on file. 




          Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200