BILL ANALYSIS Ó
AB 1957
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Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1957
(Quirk) - As Amended April 14, 2016
As Proposed to be Amended
SUBJECT: Public records: body-worn cameras
KEY ISSUE: Should the california public records act be amended
to provide a procedure for releasing footage from a Peace
officer's body-worn camera, in A manner that properly balances
privacy interests with the substantial public interest in
disclosing such footage to the public?
SYNOPSIS
This bill is one of several measures introduced in the current
two-session that address the public record status of footage
taken by a peace officer's body-worn camera, an issue that will
become more pressing as more law enforcement agencies adopt
these devices. This bill attempts to balance the public
interest in access and competing privacy interests of certain
persons depicted in the footage by setting forth a three-tiered
process. First, the bill authorizes the governing body of a law
enforcement agency (most likely a city council or county board
of supervisors) to review footage from a peace officer's
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body-worn camera whenever there is an incident that results in
the death or serious bodily injury of a civilian, allegedly due
to the misconduct of a peace officer. Second, if this review
leads to an investigation and eventual prosecution of a peace
officer for misconduct, then a judge will review the footage and
develop a "release protocol," which would include a
determination of whether any portion of the footage should be
redacted before release to the public. Third, if the
investigation does not lead to charges of misconduct against the
officer, then the footage would be required to be released upon
completion of the investigation. In addition, this bill would
place restrictions on the disclosure of footage that depicts a
victim of domestic violence, a minor, or a witness at the scene
of the incident. The bill is opposed by district attorneys who
contend that the existing law already provides an adequate
balance between the public interest in disclosure and public
interest in non-disclosure, as well as the competing interest
between public access and individual privacy. In order to
clarify the relationship between the different components of the
bill and the appropriate balancing of competing public interests
in disclosure and non-disclosure, the author will take
amendments today in this Committee. Those amendments are
already reflected in the summary and analysis below. These
amendments would appear to address some, but not necessarily
all, of the concerns raised by opponents. This bill recently
passed out of the Assembly Public Safety Committee on a 4-1
vote, with two members not voting.
SUMMARY: Provides a set of procedures for disclosing footage
from a law enforcement officer's body-worn camera.
Specifically, this bill:
1)Allows, before the end of the business day following the date
on which the incident occurs, the governing body of the law
enforcement agency, in closed session, to review the footage
from a body-worn camera when the peace officer who was wearing
the camera is involved in an incident that results in great
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bodily injury or death of a person other than the peace
officer.
2)If after the footage is reviewed as authorized in 1), above,
there is an investigation that leads to prosecution of the
peace officer, a judge shall review the body-worn camera
footage and determine a release protocol, including, but not
limited to, whether the footage is released, to whom, and if
redaction is required.
3)Requires, except as provided in 4), below, that a state or
local law enforcement agency disclose footage from a body-worn
camera upon conclusion of an investigation into the misconduct
by the peace officer which resulted in great bodily injury or
death of a person other than the peace officer. Specifies
that this requirement only applies where the investigation
does not result in charges of misconduct against the officer.
4)Provides that footage of body-worn cameras that relate to
crimes of domestic violence, crimes that include minors, or
that include statements of a witness at the scene of a crime
shall not be released for public viewing if the public
interest in non-disclosure, or the privacy interests of any
person depicted in the footage, clearly outweighs the public
interest in disclosure and it is not feasible to redact the
portion of the recording that shows domestic violence, minors,
or statements of a witness from the footage.
EXISTING LAW:
1)Requires, under the California Public Records Act (CPRA),
state and local agencies to make public records available for
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inspection by the public, unless another provision of the CPRA
or another statute expressly exempts the records from the
disclosure requirement. (Government Code Section 6250 et seq.)
2)Defines "public records" to mean any writing containing
information relating to the conduct of the public's business
prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics.
Defines "writing" to mean any handwriting, typewriting,
printing, photostating, photographing, photocopying,
transmitting by electronic mail or facsimile, and every other
means of recording upon any tangible thing any form of
communication or representation, including letters, words,
pictures, sounds, or symbols, or combinations thereof, and any
record thereby created, regardless of the manner in which the
record has been stored. (Government Code Section 6252.)
3)Exempts from disclosure under the CPRA any records relating to
an investigation conducted by a state or local law enforcement
agency or any investigatory or security files compiled by any
other state or local agency for correctional, law enforcement,
or licensing purposes. Specifies, however, that state and
local law enforcement agencies shall disclose the names and
addresses of persons involved in the incident, including
certain information about the victim, as specified, unless the
disclosure would endanger the successful completion of the
investigation. (Government Code Section 6254 (f).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: In the past few years, there have been several tragic
and high profile incidents of persons dying or suffering serious
injury in interactions with police officers. A Grand Jury's
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failure to indict a police officer who shot and killed an
unarmed African American man, for example, prompted several
rounds of protests and confrontations in Ferguson, Missouri. In
other incidents, bystanders with camera phones captured
encounters that appeared to show police officers using excessive
force when arresting or restraining African-American men. These
incidents have rekindled longstanding calls for police reform
and community oversight, replicating demands that have been made
since at least the 1965 Watts Rebellion, which like the recent
conflicts were prompted by charges of police abuse of
African-Americans. Recent reform proposals include requiring
police departments to require the use of body-worn cameras by
police officers that will, presumably, capture police-community
interactions and provide critical evidence as to whether a
police officer abused his or her authority, or if he or she
acted reasonably and professionally under the circumstances.
In the current two-year legislative session, at least eight
bills have set forth proposals for body-worn cameras. The most
comprehensive of these proposals was AB 66 (Weber, 2015). AB 66
would have established 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 66,
not unlike the many of the others, died in various committees
without reaching a floor vote. Only one of the body camera
measures introduced last year became law, and it was fairly
modest. AB 69 (Chapter 461, Statutes of 2015) requires law
enforcement agencies to consider "best practices" when
establishing policies and procedures for downloading and storing
data from body-worn cameras.
In addition to general policy debates about the relative merits
and effectiveness of body-worn cameras, when and how they should
be used, and whether they will foster trust or distrust among
the community, one important issue concerns whether footage
obtained from body-worn cameras should be treated as a "public
record" open to public inspection, or whether the footage raises
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unique privacy and safety issues that would justify some
constraints on public disclosure of the footage. This bill
attempts to balance the public interest in access with the
competing privacy interests of persons depicted in the footage.
Specifically, AB 1957 sets forth a three-tiered process for the
review and disclosure of footage from body-worn cameras. First,
the bill authorizes the "governing body" of a law enforcement
agency - most notably a city council for the police and county
board of supervisors for the sheriffs - to review, in closed
session, the footage from a peace officer's body-worn camera
whenever there is an incident that results in death or serious
bodily injury to someone other than a peace officer. Second, if
the review of the footage leads to an investigation and eventual
prosecution of a peace officer for misconduct, based on the
contents of the footage, then a judge will review the footage
and develop a "release protocol," including a determination of
whether any portion of the footage should be redacted if it
becomes open to the public. Third, if the investigation does
not lead to charges of misconduct against the officer, then the
footage is required to be released upon completion of the
investigation.
Privacy Interests of Certain Victims, Minors, and Witnesses:
While this measure is premised upon the principle that body-worn
camera footage is a public record and therefore subject to
public inspection, unless an express exemption applies, this
bill seeks to offer privacy protection to persons who may, in
one way or another, be vulnerable. Specifically, the bill
provides that footage related to crimes of domestic violence,
footage depicting minors, and footage depicting the testimony of
witnesses at the scene of an incident shall not be disclosed if
the public interest in non-disclosure, or the privacy interest
of any person depicted in the footage, clearly outweighs the
public interest in disclosure and it is not feasible to redact
the portion showing the victim of domestic violence, minor, or
witness.
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Proposed Author Amendments: In order to clarify the
relationship between the tiers set forth in the bill, and to
clarify the appropriate balancing that should take place between
the public's interests in disclosure, the author wishes to take
the following amendments in this Committee:
SECTION 1. Section 6254.31 is added to the Government
Code, to read:
6254.31. (a) Before the end of the business day following
the date on which the incident occurs, the governing body
of the law enforcement agency, in closed session, may
review the footage from a body-worn camera when the peace
officer who was wearing the camera is involved in an
incident that results in great bodily injury or death of a
person other than the peace officer .
(b) If, after reviewing the footage as required authorized
in subdivision (a), there is an investigation that leads
to prosecution of the peace officer , the judge shall
review the body-worn camera footage and determine the
release protocol, including, but not limited to, whether
the footage is released, to whom, and if redaction is
required.
(c) Except as provided in subdivision (d), notwithstanding
Section 6254, a state or local law enforcement agency
shall make available, upon request pursuant to this
chapter, footage from a law enforcement body-worn camera
60 days after the commencement upon conclusion of an
investigation into a an allegation of misconduct by the
peace officer allegation based on use of force resulting
in great bodily injury or death of a person other than the
peace officer depicted in the footage. This subdivision
shall only apply where the investigation does not result
in charges of misconduct against the officer.
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d) Footage of body-worn cameras that relates to crimes of
domestic violence or crimes that include minors or that
includes statements of a witness at the scene of a crime
shall not be released for public viewing if the public
interest in non-disclosure, or the privacy interests of
any person depicted in the footage clearly, outweighs the
public interest in disclosure and it is not feasible to
redact the portion of the recording that shows domestic
violence, minors, or statements of a witness from the
footage.
SEC. 2. No reimbursement is required by this act pursuant
to Section 6 of Article XIII B of the California
Constitution for certain costs because, in that regard,
the only costs that may be incurred by a local agency or
school district under this act would result from a
legislative mandate that is within the scope of paragraph
(7) of subdivision (b) of Section 3 of Article I of the
California Constitution.
However, if the Commission on State Mandates determines
that this act contains other costs mandated by the state,
reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing
with Section 17500) of Division 4 of Title 2 of the
Government Code.
ARGUMENTS IN SUPPORT: According to the author:
Since 2012, there has been a national outcry of several
incidents where law enforcement "use of force" has been
questioned in communities throughout the United States.
These incidences, many leading to no indictment, have
fractured the relationship between many communities and
the law enforcement agencies sworn to protect them.
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Body worn cameras have many benefits, they can prevent
violence. A 2013 University of Cambridge study in Rialto,
CA found that when police wear body cameras, both police
and respondents are less likely to use violence. The study
indicated a drop in use of force by more than a 50
percent. Body cameras could thus make the streets safer
for both officers and the general public. Body worn
footage can improve the public's view of policing by
showing the human side.
California has an untiring commitment to fairness, civil
rights, community policing, transparency, and justice; AB
1957 seeks to adopt the best practices for use of police
body-worn cameras in this state.
ARGUMENTS IN OPPOSITION: The California District Attorneys
Association (CDAA) opposes this bill because it believes that
existing law already appropriately balances the competing public
interests between disclosure and non-disclosure. Specifically,
CDAA points out that existing subdivision (f) of Government Code
section 6254(f) already provides an exception to the California
Public Records Act that protects against disclosure of reports
that "would endanger the successful completion of the
investigation or a related investigation." CDAA opposes this
bill because it would "rather arbitrarily . . . override that
CPRA exemption after just 60 days. In many cases, particularly
those in which an officer is being investigated as a criminal
suspect, such an investigation would still be ongoing after 60
days." In addition, CDAA notes that "AB 1957 provides no
mechanism by which to delay the release of any footage related
to the investigation, and, in fact, requires its release upon
request. Under no other circumstances are law enforcement
agencies required to disclose evidence during the pendency of an
investigation. Existing law sufficiently balances the public's
desire to obtain this type of information with the law
enforcement agencies' need to preserve the integrity of
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investigations. AB 1957 would undermine those efforts."
The San Diego District Attorney's (SDAA) opposes this bill for
much the same reasons as those articulated by CDAA. However,
SDAA adds the additional argument that the determination about
disclosure should be tied not to the commencement of the
investigation but "to the determination that there was, in fact,
misconduct." In addition SDAA notes that the City of San Diego
and San Diego County have established independent review to
investigation allegations of peace officer misconduct, and have
had them for more than two decades. SDAA contends that its
investigations increase public confidence and accountability by
conducting impartial and independent reviews of complaints of
misconduct and excessive force. SDAA fears that "AB 1957 may
impede our authority . . . to conduct thorough, confidential,
and independent investigations of police misconduct."
Author Amendments May Address Some but not All Opposition
Concerns: The opposition arguments raised above reflect the
bill as currently in print but not the author's amendments that
will be taken today, and which are already reflected in the bill
summary and analysis above. The author's amendments appear to
address much of CDAA's concerns by specifying that the footage
should be made available "upon conclusion" of an investigation,
as opposed to 60 days after commencement. Under this bill, as
under existing law, so long as there is an investigation the
footage will not be subject to disclosure. It is unclear,
however, whether the author's amendments will alleviate all of
the opposition concerns. In particular, it is not clear whether
opponents still believe that existing law already strikes an
appropriate balance.
RECENT RELATED LEGISLATION: SB 175 (Anderson and Gaines, 2015)
required 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
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body-worn cameras. This bill died on the Assembly Floor.
AB 1940 (Cooper, 2015) required a law enforcement agency,
department, or entity, if it employs peace officers and uses
body-worn cameras for those officers, to develop a body-worn
camera policy allowing a peace officer to review his or her
body-worn camera video and audio recordings before making a
report, giving an internal affairs statement, or before any
criminal or civil proceeding. This bill died without a hearing
in the Assembly Public Safety Committee.
AB 2533 (Santiago, 2016) entitles an officer to at least
five-day's notice before an agency releases an audio or video
recording by that officer on the Internet. AB 2533 is pending
in the Privacy and Consumer Protection Committee.
AB 2611 (Low, 2016) exempts from disclosure under the Public
Records Act any investigatory or security audio or video
recording that shows gruesome injuries, or the death of a peace
officer who is killed in the line of duty. AB 2611 is pending
in the Privacy and Consumer Protection Committee.
AB 65 (Alejo, 2015) would have redirected 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, as specified. AB 65 was held in the Assembly
Appropriations Committee.
AB 66 (Weber, 2015) would have established 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 66 was held in the Assembly
Appropriations Committee.
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AB 69 (Rodriguez, Chapter 461, Statutes of 2015) requires law
enforcement agencies to consider specified best practices when
establishing policies and procedures for downloading and storing
data from body-worn cameras.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
California District Attorneys Association
San Diego County District Attorney
Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334
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