In a case 1 in which petitioner made a request for information pursuant to the California Public Records Act (Government Code section 7920.000 et seq.; “CPRA”) related to a city’s use of drones, the Fourth District Court of Appeal concluded that a trial court erred in determining, as a matter of law, that all video footage from the drone program was exempt under Section 7923.600(a), as records of investigations.
The Federal Aviation Authority (FAA) selected the City of Chula Vista’s (“City”) police department as the first in the country to test the use of drones as first responders as a pilot program.2 Previously, police agencies relied on responding officers to launch drones when on scene. Per this program, a police officer determines when sending a drone to examine a situation is an appropriate response to a public call for assistance. If the officer decides that the use of a drone is suitable, a remote pilot flies the drone to the area in question. The City’s innovation was to dispatch drones before officers arrived and, similar to the use of helicopters, provide incident commanders and responding officers live streamed video of the scene before arrival to better inform them how to respond to the situation more effectively and safely.
In April 2021, Arturo Castañares, a journalist and private pilot, made a CPRA request for information related to the City’s use of drones, including the video footage for all drone flights from March 1 to March 31, 2021. On April 14, a day before the statutory deadline to respond,3 the City provided a partial response informing Castañares that responsive information could be found on the City’s website4 and the requested video footage was exempt under the investigatory records exemption per Section 7923.600(a). The City also extended the deadline for its response to Castañares’s request until April 26.5
Before the April 26 deadline for the City to respond, Castañares sued the City and the matter proceeded to trial. In a minute order, the trial court acknowledged that there was no California authority addressing the issues before it because the drone program was the first of its kind in California, and “no California court has previously taken up the legal questions raised in this case.” The trial court concluded, as a matter of law, that the drone video footage was exempt under CPRA’s Section 7923.600(a) as records of investigations. Moreover, the trial court found that any benefit of turning over the videos was outweighed by the “unreasonable burden” placed on the City in redacting the videos before they could be provided to Castañares.
Castañares filed a petition for an extraordinary writ requesting that the California Court of Appeal vacate the lower court’s minute order and order the City to disclose the requested video footage that was not related to any law enforcement investigation with appropriate redactions if necessary. Although the City opposed the relief Castañares sought, the City requested that the Court of Appeal consider the petition to clarify the scope of its obligation to provide the drone video footage, and provide guidance to the City for future CPRA requests related to drone video footage, including redaction obligations.
The Fourth District Court of Appeal initially explained that the CPRA6 grants public access to public records held by state and local agencies. (Government Code section 7920.000 et seq.) Under the California Constitution, the CPRA must be “broadly construed” because its statutory scheme “furthers the people’s right of access.” (Cal. Const., art. I, Section 3(b)(2).) Yet the Legislature included a provision as part of the CPRA declaring it was “mindful of the right of individuals to privacy.” (Section 7921.000.) Thus, “‘judicial decisions interpreting the [CPRA] seek to balance the public right to access to information, the government’s need, or lack of need, to preserve confidentiality, and the individual’s right to privacy.’” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1282 (internal citations omitted).)
The Court stated that the CPRA balances the dual concerns for privacy and disclosure by providing for various exemptions that permit public agencies to refuse disclosure of certain public records. CPRA exemptions are narrowly construed (American Civil Liberties Union Foundation v. Superior Court (2017) 3 Cal.5th 1032, 1042 (“ACLU Foundation”)). The agency opposing disclosure bears the burden of proving an exemption applies. (Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 70.)
The CPRA “does not require the disclosure of records of … investigations conducted by … any state or local police agency, or any investigatory … files compiled by any other state or local police agency, or any investigatory … files compiled by any other state or local agency for … law enforcement … purposes.” (Section 7923.600(a).) In other words, law enforcement investigatory files typically are categorically exempt from the CPRA’s general requirement of disclosure.
Castañares first argued that the trial court erred in finding all drone footage was categorically exempt as investigatory records under Section 7923.600(a). However, he did not argue that drone video footage that is part of an investigatory file should be disclosed in response to a CPRA request. Such files, the Court noted, are exempt from disclosure under Section 7923.600(a).7 The Court therefore focused on the requested drone video footage that was not part of an investigatory file. The Court noted that investigatory records “are exempt on their face, whether or not they are ever included in an investigatory file.” (Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1069.)
The Fourth District observed that there was no reported case dealing with a CPRA request seeking drone video footage. The Court found that the matter here fell somewhere between the California Supreme Court cases Haynie (suggested by the City) and ACLU Foundation (favored by Castañares). In Haynie, the California Supreme Court stated, “The records of investigation exempted under section [7923.600, subd. (a)] encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency.” (Haynie, at p. 1071.) The Fourth District observed, however, that the matter here presented much different facts than Haynie. Haynie involved a targeted CPRA request based on a petitioner’s interaction with a specific officer, whereas the subject CPRA request here concerned over 91 hours of video footage related to a program utilized by the City’s police department. Moreover, unlike the request in Haynie, Castañares’ request here was not related to a single event, involving the petitioner. The Fourth District concluded that Haynie provided some guidance, but it did not, by itself, provide the necessary framework for the matter here.
In ACLU Foundation, a petitioner sought records pertaining to the use of automated license plate reader (“ALPR”) technology to locate vehicles linked to crimes under investigation. The high court determined that the investigatory records exception did not apply to the ALPR scans, noting that the “the scans [we]re not conducted as part of a targeted inquiring into any particular crime or crimes” (ACLU Foundation, supra, 3 Cal.5th at p. 1042). The Supreme Court considered the ALPR process to be more like the random collection of bulk data rather than a traditional “investigation.” The ALPR scans were random and not aimed at any particular person or in response to any call to service from the public. In contrast, here, the drone video footage was recorded only after an officer determined a drone should be dispatched in response to a 911 call. Thus, unlike the ALPR scans in ACLU Foundation, the drone video footage in the instant matter required an act of discretion by the City’s police. The Fourth District found this to be the critical difference between the two programs and decided that ACLU Foundation was not instructive regarding the application of the records of investigations exemption here.
The Fourth District stated that it was guided by the high court’s observation that “Haynie at least implies that an inquiry must be somewhat targeted at suspected violations of law (see Haynie, supra, 26 Cal.4th at p. 1071) to qualify as an ‘investigation[ ]’ under section [7923.600, subd. (a)]. The mere fact of an inquiry is not enough.” (ACLU Foundation, supra, 3 Cal.5th at p. 1041.) The Court envisioned three possible categories that the drone video footage could fall under in the case here. The first category would consist of drone video footage that was part of an investigatory file. Such footage would be exempt from disclosure under the CPRA per Section 7923.600(a). The second category would be those instances where officers used a drone to investigate whether a violation of law was occurring or had occurred but did not create a corresponding investigatory file.8 (See Haynie, supra, 26 Cal.4th at p. 1071; ACLU Foundation, supra, 3 Cal.5th at p. 1041.) Under Haynie and ACLU Foundation, drone video footage investigating these and other claims of crimes being committed would fall under the records of investigations exception. (Section 7923.600(a).) The final category would be any drone video footage that did not fall under categories one or two. Such footage would consist of using a drone to make a factual inquiry to determine what kind of assistance is required, not to investigate a suspected violation of law. For example, 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 would not suggest a crime might have been committed or was in the process of being committed.
The Fourth District noted that it was only considering the possibility that a drone could be dispatched in response to a call to service from the public wherein the use of the drone could not be considered investigatory in nature (e.g., potentially dangerous wildlife roaming the neighborhood, a stranded motorist, a water leak). Based on these scenarios and observing that it must broadly construe disclosure under the CPRA (Cal. Const., art. I, section 3(b)(2)) and narrowly construe exemptions (ACLU Foundation, supra, 3 Cal.5th at p. 1042), the Fourth District concluded, based on the record before it, the trial court’s broad ruling that all drone video footage, as a matter of law, is categorically exempt because the drones are only dispatched in response to 911 calls was error. Instead, the Fourth District stated that the drone video footage should not be treated as a monolith, but rather, it could be divided into separate parts corresponding to each specific call. Then each distinct video could be evaluated under the CPRA in relation to the call triggering the drone dispatch.9 After the City categorized the drone video footage, Castañares then should be permitted the opportunity to challenge or otherwise question any of the determinations the City made. The trial court would resolve any issues of disputed fact guided by Haynie, ACLU Foundation, and the Fourth District’s decision here.
The Court of Appeal next considered whether drone video footage that is not exempt under Section 7923.600(a) may nonetheless be withheld pursuant to the catchall exemption set forth in the CPRA. The Court explained that this exemption, codified in Section 7922.000, permits a public agency to withhold a public record under the CPRA if the agency demonstrates “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.” (Section 7922.000.)
The Court decided that in their arguments regarding this issue both Castañares and the City incorrectly assumed that the catchall provision of the CPRA needed to be applied to the entire drone video footage at issue. The Court explained that because of the application of the records of investigations exemption to the drone video footage, the catchall provision should not be applied to all 91 hours, 39 minutes, and 52 seconds of drone footage. The Court had earlier discussed how the investigation of records exemption (Section 7923.600(a)) applies to at least two of the three categories of drone video footage—footage that is part of an investigatory file and investigations. Therefore, the catchall provision of the CPRA need only be applied to the videos that fell into the third category—factual inquiries. However, on the record before the Court, it could not know what portion of the total drone video footage corresponds to the non-exempt inquiries. Accordingly, even if the Court accepted the City’s evidence regarding the amount of time it would take to review and redact the video footage, it could not evaluate the related burden without knowing the amount of footage in need of redaction. Because the City emphasized the burden of disclosure (primarily review and redaction time) and the lack of the development of the record allowing us to evaluate it, the Fourth District concluded that the City did not carry its burden in showing the catchall provision applied here.
In sum, the Court of Appeal concluded that the trial court erred in determining, on the record before it, that all drone video footage was exempt from disclosure under the CPRA. Moreover, the City did not carry its burden to show that the CPRA’s catchall provision supported its decision not to disclose the requested drone video footage. Therefore, the Fourth District Court of Appeal granted, in part, the relief Castañares requested in his petition and remanded this matter back to the trial court with directions to vacate its minute order and conduct further proceedings consistent with this opinion. Specifically, the Court of Appeal suggested that the trial court ask the City to separate the requested drone video footage into three categories: (1) part of an investigatory file, (2) an investigation into whether a law has been broken absent any investigatory file; and (3) a factual inquiry. Only the third category would not be exempt from disclosure under Section 7923.600(a). For the footage falling under the third category, the City could then offer arguments as to why the catchall provision applied.
HOW THIS AFFECTS YOUR AGENCY
Agencies considering using a drone program similar to the pilot program used by the City of Chula Vista may wish to prepare in part by developing procedures to align with the Fourth District’s analysis of the three categories in which chose to segregate drone footage. While this will be time and resource consuming, it may ultimately prove beneficial in the long run since the Court of Appeal, unfortunately, chose not to apply the investigatory exception to all drone footage. Agencies then may wish to consider simply posting drone footage which would not qualify as an “investigative record” according to the Court’s analysis on their department webpage to ease response to the inevitable PRA requests that will likely flow from this court decision.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at email@example.com or by telephone at (714) 446-1400.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
1 Castañares v. Superior Court, 2023 Cal. App. LEXIS 994 (4th Dist. Dec. 27, 2023).
2 Before launching its program, the City engaged in extensive outreach to civil rights groups, media, and in other public fora, soliciting input on policies for police use of drones. The City’s policy, which prohibits use of drones for general surveillance or patrol, reflects that outreach and the City’s extensive planning and research. The City’s drone policy adopted many of the American Civil Liberties Union’s 2013 recommendations to Congress including: (1) restricting use of drones to calls for service; (2) privacy controls limiting access to and retention of videos; (3) community engagement and online access to flight path data through a website and links to City’s policies and media coverage, as well as offering program tours to civic groups, police agencies, and others; (4) City Council and citizen advisory committee oversight of policy decisions; (5) internal auditing and tracking; and (6) banning weaponization. The City also provides a substantial amount of information about the drone program on its website. To this end, the public may access anonymized flight data (including date, time, location, flight paths, and call summaries). The City also offers after-action-reports (“AARs”) wherein the City can respond to questions about drone flights.
3An agency must respond within 10 days of receiving a request for a copy of records under the CPRA. (Section 7922.535, subd. (a).)
4 Under Section 7922.545(a), in response to a request for a public record, a public agency may direct a member of the public to its website.
5 Section 7922.535(b) allows an agency to extend the usual 10-day time limit to respond to a CPRA request under certain circumstances.
6 The CPRA was enacted in 1968 and is modeled after the federal Freedom of Information Act (5 U.S.C. section 552 et seq.).
7 The Court noted that a public agency cannot avoid disclosure under the CPRA simply by labeling certain information “investigatory.” (See Williams v. Superior Court (1993) 5 Cal.4th 337, 356 [“[I]t now appears well established that ‘information in public files [becomes] exempt as “investigatory” material only when the prospect of enforcement proceedings [becomes] concrete and definite’”].) “Such a qualification is necessary to prevent an agency from attempting to ‘shield a record from public disclosure, regardless of its nature, simply by placing it in a file labeled “investigatory.”’” (Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1069, citing Williams, at p. 355.) Here, Castanares did not argue that the drone video footage that was part of any investigatory file had been labeled as such merely to avoid disclosure.
8 The Court explained that examples of such use of drones would include dispatching a drone to investigate a possible assault, a claim of someone causing a disturbance, or a suspected break in; yet, the resultant video footage did not become part of an investigatory file.
9 The Court stated, “as an initial determination, the City is well equipped to categorize the drone video footage in this manner. However, we do not propose to instruct the City regarding what process it must use to evaluate the drone video footage or suggest that a City designee must watch the footage to make the necessary determinations. Indeed, it could be more efficient for the City to simply review call logs, AARs, and other related information to ascertain what drone video footage falls into the three categories.”