Monthly Archive for: ‘May, 2020’

  • Rachel quoted in: “State High Court to Cops: No, You Can’t Charge $3,000 for Body Camera Videos”

    KQED article on the May 28 California Supreme Court decision

    “. . . . The ruling is much more than an affirmation for those advocating for increased access to public records, and its reach goes far beyond Hayward’s body camera videos from 2014.

    ‘As we see from the police killing of George Floyd in Minneapolis just this week, and other killings, police violence is as much of an issue today as it was in 2014 when we requested this body camera video,’ said Rachel Lederman, a civil rights attorney and former head of the National Lawyers Guild’s Bay Area Chapter. ‘This is a great ruling.’

    It’s likely to change the landscape regarding access to police body camera footage and other internal law enforcement files that must be released under two recent state laws that grant broader public access, Senate Bill 1421 and Assembly Bill 748.

    The laws both took effect last year. SB 1421 requires police agencies, for the first time in 40 years, to provide records from internal investigations into serious uses of force by law enforcement officers. It similarly requires police agencies to disclose records from misconduct investigations involving allegations of sexual assault and dishonesty against officers. Those investigations often include multimedia files, including audio recordings of interrogations and video from surveillance cameras and body cameras.

    AB 748 generally requires law enforcement agencies to release video of “critical incidents,” including police shootings, within 45 days.

    Over the past year, many law enforcement agencies have provided those files at reasonable or no cost. But some have not.

    In response to records requests from a coalition of news organizations, including KQED, the Bakersfield Police Department has provided text documents related to nearly 40 police shootings, 65 additional serious uses of force, seven investigations into officer dishonesty and two sexual assault cases. . . .

    Citing the provision of state law at issue in the National Lawyers Guild case, Bakersfield quoted a cost of $110.36 per hour of multimedia content, estimating that each shooting case contained an average of 15 hours of audio or video files. Therefore, obtaining video from any incident would cost requestors an estimated $6,621.60, or more than $250,000 just for the shooting cases. The news organizations could not afford to pay, and the files remain hidden from public view.

    The Supreme Court ruling Thursday appears to prohibit that charge. The court likens preparation of such videos for production to redacting text records.

    ‘[I]n video-editing terms, what (Hayward) did was not substantively different from using an electronic tool to draw black boxes over exempt material contained in a document in electronic format,” the ruling says. “What (Hayward) did was simply perform redactions of an otherwise producible record, albeit through technologically more advanced means.'”

  • HPDcapture4 300x169 1

    State Supreme Court Rules in Favor of NLG in Police Body Camera Records Case

    Today, in litigation brought by the National Lawyers Guild, San Francisco Bay Area Chapter (“NLGSF”), the California Supreme Court decided that public agencies may not charge the public for the cost of redacting electronic records under the California Public Records Act (“CPRA”). The decision in National Lawyers Guild v. City of Hayward, S252445, covers the wide array of public records that are kept in electronic formats.

    In January 2015, NLGSF requested police body camera videos and other records from the Hayward police department related to its activities at a December 2014 Black Lives Matter demonstration in Berkeley, when Hayward officers shot a Black demonstrator with “less lethal” munitions. Hayward eventually turned over the videos, which revealed HPD officers shooting at peaceful protesters while making remarks such as, “They are f—-ing animals”; “I got it up right now ready to go mother—-ers” and “Get a shot in his f—-ing ass”. To obtain the videos, however, Hayward charged NLGSF $3,247.47 for the cost of editing the videos to redact supposed protected information.

    The CPRA does not generally allow agencies to charge a fee to redact records, but Hayward argued that Cal. Gov. Code § 6253.9 did permit it to charge fees this for electronic records where “data compilation, extraction, or programming” was required. NLGSF, represented by the ACLU and attorney Amitai Schwartz, challenged the fees in the Superior Court and prevailed.

    Hayward appealed the Alameda County Superior Court decision. The First District Court of Appeal found that, while an agency cannot charge to redact paper records, § 6253.9 does allow an agency to charge a requester for its redaction of electronic records in some circumstances. In the wake of the appellate decision, agencies across the state claimed the right to withhold public emails and other electronic records unless requestors could pay hundreds or thousands of dollars in redaction fees. The Supreme Court disagreed, holding that “Just as agencies cannot recover the costs of searching through a filing cabinet for paper records, they cannot recover comparable costs for electronic records. Nor, for similar reasons, does “extraction” cover the cost of redacting exempt data from otherwise producible electronic records.” The Court reasoned that what Hayward’s staff did to edit the videos “was not substantively different from using an electronic tool to draw black boxes over exempt material contained in a document in electronic format.”

    “Today’s California Supreme Court decision is an important victory for government transparency in California,” said Rachel Lederman, the civil rights attorney who requested the videos on behalf of NLGSF. “As we see from the police killing of George Floyd just this week, and so many others, police racist violence is as much of an issue today as it was in 2014. Body cameras can’t fully serve their function of promoting police accountability if it is prohibitively expensive for the public to access the videos.”

    “What was at stake here is the public’s right to know what its government is doing, including what its police are doing on the streets. The Public Records Act is designed to provide access to these records. Since almost all records are now kept in electronic form, permitting government to charge for redactions would have gutted the intent of the Public Records Act and closed off many electronic records to public scrutiny,” said Amitai Schwartz, the attorney who litigated the case and argued it in the Supreme Court.