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Bills Regulating Use of Body Cameras Advancing; League Engages to Ensure Balance between Local Control, Transparency and the Public’s Right to Know

April 22, 2016
Body cameras were a major topic in two legislative policy committee hearings this week in Sacramento with the League monitoring both closely before the board of directors adopts official positions at its upcoming meeting on April 27.
 
This technology, which is being utilized by many law enforcement agencies throughout the country and in California, can serve to both protect the public and peace officers. The two bills, AB 2611 (Low) and AB 1957 (Quirk), address various aspects of how body camera recordings are used and under what circumstances those recordings may be release to the public. 
 
AB 2611
 
The Assembly Committee Privacy and Consumer Protection passed AB 2611 on April 19, sending it next to the Assembly Committee on Appropriations. This bill would significantly expand an exemption under the California Public Records Act (CPRA) for investigatory or security files created by law enforcement agencies, protecting from disclosure any audio or video recording created during an investigation, intelligence-gathering operation, or security procedure. It will apply to data gathered by body cameras, dashboard cameras, drones, and mobile cell phone towers called Stingrays.
 
The League acknowledges that the bill protects the privacy of law enforcement officers and their families and could protect cities against significant compliance costs. However, AB 2611 lacks clear guidelines for law enforcement on how the exemption should apply to stingray technology, which enables law enforcement to control mobile wireless devices. The measure expressly includes within the scope of the exemption video or data depicting great bodily injury to, or the death of, a police officer in the line of duty. 
 
AB 2611 would also remedy a deficiency in the CPRA, which lacks privacy protections for victims who are also witnesses, nor does it reflect the latest technologies such as body cameras or dashboard camera in the context of the release of information. 
 
The challenge lies in the fact that as written, AB 2611 could be subject to a rather broad interpretation as to what data should fall within the scope of the exemption. The general public and the Legislature have previously raised issues with the degree to which state and local law enforcement are capable of unfettered, warrantless intelligence gathering via devices such as Stingrays. This technology is capable at a minimum of blocking cellphones, intercepting and reading emails and texts and draining the batteries of mobile devices to render them inoperative.  Concerns have been voiced from within the law enforcement community that definite regulations should be placed on their use of this technology. 
 
AB 1957
 
The Assembly Committee on Judiciary on April 19 passed AB 1957, sending it to the Assembly Committee on Appropriations next.
 
AB 1957 would require state and local law enforcement agencies to make body worn camera footage available 60 days after the commencement of an investigation into misconduct that uses or involves that footage. The measure is in response to an incident in the city of Chicago in 2014 when an officer shot and killed an armed suspect who was running away in pursuit. Dash camera footage from several police vehicles was withheld for 13 months but was later released after demands from independent investigators and public watchdog groups were made. After the public release of the footage the officer was then charged with second degree murder and the police chief was terminated. In the wake of this and other similar incidences across the nation pro body camera transparency policy trends are becoming more and more prevalent. 
 
While the League supports transparency and the public’s right to know, concerns have been raised regarding a two provisions of the bill. The judicial review section of the measure would take away local authority to determine when a video is released, who and what is redacted from body cam footage. In addition, there is a problematic provision that would require video footage to be released 60 days from the commencement of an investigation of the incident. This is troubling because 60 days may not be an adequate amount of time for a full investigation to be completed — disclosure of evidence may deny due process, taint and investigation or lead to civil litigation for the public agency in question.
 
Under the CPRA, public records must be open to inspection at all times during the office hours of a state or local agency and that the public has a right to inspect any record. Existing law exempts from the disclosure requirements records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, law enforcement agencies, including the Attorney General and state or local police agencies.
 
Next Steps
 
The League board of directors will be examining both bills next week during its meeting on April 27. Once official positions are taken, the League will post letters online.


 
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