San Francisco Chronicle - (Sunday)
Appeals court rules public can view some police drone videos
Cities and counties in California are increasingly using drones to look for criminal suspects and missing persons and scan wildfires and other emergencies. Now a state appeals court says journalists and the public can have access to drone videos unless they were being used for a criminal investigation.
“A 911 call about a mountain lion roaming a neighborhood, a water leak, or a stranded motorist on the freeway could warrant the use of a drone but do not suggest a crime might have been committed or is in the process of being committed,” the 4th District Court of Appeal in San Diego said Wednesday.
Videos from those searches must be released, the court said, except for footage that would violate an individual’s right to privacy. The 3-0 ruling overturned a San Diego County judge’s decision allowing the city of Chula Vista to withhold videos from all drones sent by police in response to 911 emergency calls.
“This is an important case. …The public has an interest in how a city is using drones, whether it’s complying with its own rules and properly respecting privacy,” said David Loy, legal director of the First Amendment Coalition in San Rafael.
Banning disclosure of all drone videos “would blunt public understanding of a technology that is being used to replace basic police activity,” Loy’s group argued in a court filing also signed by the Reporters’ Committee for Freedom of the Press and the Electronic Frontier Foundation, a privacy-rights group.
Richard Pinckard, a lawyer for the Peace Officers Research Association of California, said it was a “very thorough and wellwritten” ruling that should not disrupt police practices.
Law enforcement agencies implementing drone-as-first-response programs should consider categorizing and labeling the collected videos “with a little more detail on the front end” to determine which portions can be withheld, Pinckard told the Chronicle.
Loy said Chula Vista was the first city whose police were authorized to launch drones for searches and surveillance. Many others have followed, including officers in Alameda and Contra Costa and Marin counties and police departments in San Jose, Richmond, Fremont and Pittsburg.
In opposing release of the videos, lawyers for Chula Vista cited a 2001 state Supreme Court ruling that allowed a sheriff ’s office to withhold records of an individual’s call to report a possible crime and the office’s response.
Attorneys for Arturo Castañares, a journalist who sought video footage from the city from a onemonth period in 2021, cited a 2017 ruling by the state’s high court that said the public could obtain records of millions of automated license plate searches by police and sheriff’s officers in Los Angeles because they were not records of individual investigations.
Video footage falls somewhere between those two examples, the appeals court said Wednesday.
The California Public Records Act allows the government to withhold only records of “investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred,” Justice Richard Huffman wrote in the court’s ruling. On the other hand, he said, automated license plate photos are taken of all vehicles in an area, while drone videos are aimed at a specific target.
Drone footage can be withheld, Huffman concluded, if the government can show it was part of an “investigatory file,” or any investigation into suspected lawbreaking. If not, he said, it must be released unless the government can show it would be too difficult to separate footage that would invade individual privacy from the rest of the video.