21 Jul Police Drone Footage and the Intersection of Privacy Law and Public Records Access: One California Court Paves the Way
By Mary-Christine Sungaila, July 2024
Drone usage – particularly by public entities – often raises a range of novel legal issues. In one such case at the intersection of public records laws and privacy, Castanares v. Superior Court, the California Supreme Court this Spring declined to decide the contours of California’s Public Records Act (CPRA) as applied to police drone footage.
This left in place a California Court of Appeal decision requiring the police department to comb through a month’s worth of drone footage to determine whether any of it was unconnected to a criminal investigation (as opposed to in response to a call for service such as a water leak or potentially dangerous animal roaming a neighborhood) and therefore potentially subject to disclosure as a public record to the journalist who sought it.[1]
The City of Chula Vista Police Department was selected by the FAA as the first police department in the country to test the use of drones as first responders, dispatching drones before officers arrive on the scene and livestreaming video of the scene to responding officers before they arrive on the scene. The Chula Vista Police Department use video streams to navigate to a scene and survey it and, because they fly at a height of 400 feet, the drones’ cameras capture aspects of private life and people’s backyards while flying to a scene.
The Court suggested that, on remand, the City separate out the drone footage into three categories: (1) part of an investigatory file or (2) an investigation into whether a law has been broken absent an investigatory file and (3) factual inquiries – only the first two of which are exempt from disclosure under the CPRA.[2] The Court of Appeal left open the possibility that the trial court could ultimately determine, under provisions of the CPRA, that third party privacy concerns or a disproportionate burden on the City in segregating out the noninvestigatory, non-privacy related footage may exempt some or all of the remaining footage from disclosure.[3]
In urging the state Supreme Court to take up the case, the Peace Officers Research Association of California expressed alarm at the impact such parsing of the video footage might have on police departments’ adoption of drone technology. The Association warned: “Cities and counties, which have attempted to implement these technologies to provide more policing and more safety, with fewer resources, will not and cannot use the technologies if doing so will ultimately require them to devote hundreds, thousands, and even tens of thousands of hours of time” to produce video footage; “’the juice would not be worth the squeeze,’” and “[c]ities and counties would spend more time, money, and other resources than the technology would otherwise allow them to save.”[4] The Los Angeles Police Chiefs’ Association, too, expressed concern that “[t]he tripartite analysis and individualized showing” would lead to the “absurd result of deterring [law enforcement agencies] from implementing” drone technology.[5]
On the other hand, arguing in favor of disclosure at the Court of Appeal, the Electronic Frontier Foundation, Reporters Committee for Freedom of the Press, and First Amendment Coalition, pointed out that disclosure of drone footage in response to CPRA requests would allow the public to “verify if Chula Vista is complying with its own policies and turning its drone cameras away from areas where people have a reasonable expectation of privacy.”[6]
Before launching the program, the City conducted extensive outreach to civil rights groups and the media, seeking input on drone policies. The City’s drone policy ultimately adopted many of the ACLU’s 2013 recommendations to Congress for drone policies. Drones are not used for general surveillance or patrol. The City also provides information about the drone program on its website (including flight paths, call summaries, and after-action reports).
And yet the City still faced an expensive challenge to the program – and could face more, each time a public records request for drone footage is made. In setting up drone programs, police departments should carefully study their public records act laws, to assess what footage might be subject to review, redaction, or disclosure. In California, for example, in light of the Castanares decision, police departments may want to limit drone usage to criminal investigations, which are exempt from CPRA disclosure.
*Ms. Sungaila, a partner with the Complex Appellate Litigation Group, is an LLM Candidate at the Center for Air and Space Law.
[1] Castanares v. Superior Court (City of Chula Vista) (2023) 98 Cal.App.5th 295, rev. denied, Case No. S283674, April 10, 2024.
[2] Id. at p. 437.
[3] Id. at pp. 437-438.
[4] PORAC February 22, 2024 Letter Brief, at p. 5, submitted to the California Supreme Court in support of review in Castanares v. Superior Court, Case No. S283674.
[5] LA Police Chiefs February 22, 2024 Amicus Letter Brief at p. 9, submitted to the California Supreme Court in support of review in Castanares v. Superior Court, Case No. S283674.
[6] Electronic Frontier Foundation, et al., May 19, 2023 Letter Brief in support of Writ Petition, submitted to California Court of Appeal in Castanares v. Superior Court.