In spring 2021, Arturo “Art” Castañares of Eastlake read press reports about the Chula Vista Police Department winning FAA approval to use aerial drones — the first law agency in the nation to get such an OK.
And that all video footage was shielded from public release, he learned.
“I thought: That’s crazy. Bodycam videos are not [all] exempt. So why would these be exempt?” Castañares recalls.
On Wednesday, a state appeals court agreed, saying Chula Vista has no blanket excuse to keep all drone footage secret.
The precedent-setting decision by a three-judge panel could have national implications. Experts think this is the first time drone footage release was debated at an appellate court.
Castañares, editor and publisher of La Prensa San Diego, sued Chula Vista under the California Public Records Act but lost in San Diego Superior Court in April. (He asked for all drone video footage from March 2021 — some 91 hours’ worth.)
But only 13 days after a hearing before the San Diego-based 4th District Court of Appeal, Superior Court Judge Timothy Taylor was ordered to give Castañares another shot at seeing the videos.
“We agree with Castañares that the Superior Court erred in determining, as a matter of law, all video footage from the drone program is exempt under section 7923.600, subdivision (a) as records of investigations,” wrote Justice Richard Huffman.
“However, it might be the case, after further inquiry, consistent with this opinion, that the majority of the video footage is exempt. That said, we cannot make that determination on the record before us,” said Huffman, with agreement from Justices Truc Do and William Dato.
David Loy, a San Diego ACLU lawyer who submitted an amicus brief in the case, hailed the 29-page ruling released Wednesday.
“The important principle is that the court held that the government does not get a complete free pass on disclosure of drone videos,” Loy told Times of San Diego. “The trial court held that all of the police department drone footage was categorically exempt from disclosure as investigatory records.”
Electronic Frontier Foundation attorney Aaron David Mackey, who also filed a friend-of-the-court brief, called the opinion a great win for public access to police drone footage.
“This decision ensures that the public can learn more about how and why police use drones in their communities, including to check on whether police are living up to their promises regarding drone use,” Mackey said via email.
The appellate court rejected Chula Vista’s argument that any time a drone is dispatched in response to a 911 call, the footage is categorically exempt as an investigatory record under the CPRA, he noted.
“The court ruled that there is likely some footage that does not capture an ongoing police investigation or an initial inquiry into whether a crime is occurring,” he said. “This footage is not exempt under the investigatory records exemption and is thus presumptively subject to disclosure under the CPRA.”
But even if Chula Vista doesn’t appeal the ruling to the state Supreme Court, “we will have to wait for more factual development before knowing whether any of Chula Vista’s drone footage will be public,” the lawyer added.
Mackey — whose group tracks drone use by police agencies nationwide — said he expected other members of the public to seek drone footage if police use them in their communities. (At least nine San Diego County agencies now employ drones.)
On Thursday, Chula Vista spokeswoman Michele Clock said the city is evaluating the ruling to determine the most appropriate next steps.
“We consider this active litigation and are not commenting further at this time,” she said, responding to my inquiry.
But city police have boasted about their drone program, saying in a YouTube video that it’s “critical and saves peoples lives” and is “really about de-escalation at its best (and) . . . a beginning of the new policing era.”
Chula Vista police devote a section of their website to detailing use of the police drones as “first responders.” A mission statement says the drone program supports police operations “in a safe, responsible and transparent manner to preserve the peace, reduce response times and increase the quality of life in Chula Vista.”
Castañares says he’s taken a lot of heat for the almost 3-year-old case.
“I am not against drones and I’m not against police,” he said in a phone interview.
He told then City Attorney Glen Googins: “Look, I just want to see how they use them.”
Castañares was curious if police were using drones for “massive surveillance — just cruising around town.”
He said Googins replied: “No, trust us. We don’t do that.”
Unhappy about the “not really responsive” answer, Castañares pursued his CPRA request to see the March 2021 drone video footage — about 370 incidents.
He stressed he wasn’t anti-cop or a voyeur, hoping to “catch somebody sunbathing nude in the backyard.”
“I want to force police to have to think through the implications of their use of technology and come up with appropriate safety measures through policies that protect our privacy and protect our rights,” he said.
In fact, Castañares asked only for videos not part of police investigations. The city said no to all, eventually triggering a lawsuit filed by open-records crusader Cory Briggs.
Castañares said one city argument boiled down to: We haven’t looked at all the requested videos, but there may be violations of people’s privacy, “so we can’t release them because it’ll violate their privacy.”
That gave the veteran journalist and political aide pause.
“Well, wait a minute,” Castañares said. “If giving it to me is a violation of somebody’s privacy, then that means they already violated somebody’s privacy by recording it in the first place.”
He asks: “Why are they violating people’s privacy? Why are they flying over houses?”
He cites a “bunch of solutions” as possible, such as not recording video during the flight from the station to the incident.
Local ACLU lawyer Loy says Judge Taylor will have to do a “granular analysis” of drone responses to determine if they are in fact part of a criminal investigation.
“Or is it [for] some other purpose such as natural disasters, wildfires, missing persons?”
Though Castañares thinks the ruling has possible national implications, attorney Loy notes that California’s “investigatory records” exemption is very broad and doesn’t apply to states nationwide.
“I haven’t canvassed all 50 states, but [this] is definitely something of an outlier,” he said.
Loy says the ball is in the city’s court to “produce a more granular description of what is at issue. … The government has the burden to justify withholding records as exempt from disclosure.”
Taylor can look at the videos behind closed doors, he said.
(Huffman’s ruling, in fact, says: “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, [after-action reviews] and other related information to ascertain what drone video footage falls into the three categories.”)
Mackey of the Electronic Frontier Foundation said the appellate court left open the possibility that police could assert other objections to releasing footage.
That includes a so-called catchall “public interest” exemption in the CPRA.
“Because the appellate court remanded request back to the trial court, we will have to wait for more factual development before knowing whether any of Chula Vista’s drone footage will be [made] public,” Mackey said.
Unless reversed on appeal, Chula Vista also owes Briggs as much as half a million dollars, since the petitioner won attorney fees.
“They made a decision to fight a case [costing] hundreds of thousand dollars,” Castañares told me. “The best-case scenario for them was that they were going to deprive the public of information. And the worst case was what happened to them.
“They got to give [footage] to me and pay my legal fees. It was a really dumb thing to do from the start.”
Updated at 2:30 p.m. Dec. 28, 2023