A Chula Vista journalist is celebrating a landmark victory for open records after the California Supreme Court declined to hear the City of Chula Vista’s bid to reverse an appellate ruling on police drone video.
Arturo “Art” Castañares, publisher of La Prensa San Diego, says Wednesday’s court action signals “the end of the road” for his 3-year-old case. It can’t be appealed further.
The video he sought — all drone footage from March 2021 — was denied by the Chula Vista Police Department, citing exemptions in the California Public Records Act.
But in December, a three-judge appellate panel said Chula Vista (and any other police agency) has no blanket excuse to keep all drone footage secret.
David Loy, legal director of the First Amendment Coalition, says the case, which he thinks is the first of its kind, is now binding on all trial courts in California.
“It’s certainly persuasive authority to courts outside California,” he said, “and basically I think this is the correct result — that you can’t just say that all police drone footage is categorically exempt from disclosure as an investigatory record.”
Aaron Mackey of the Electronic Frontier Foundation also called the appellate panel decision correct, “and the city should begin releasing drone footage once the case is back before the trial court.”
The 4th District state Court of Appeal ruling “ensures that the public can access and understand when and how police use drones,” he said. “That access is crucial to preserve public oversight and accountability of law enforcement’s drone use.”
Now the case returns to Superior Court Judge Timothy Taylor, who sided with Chula Vista originally.
Cory Briggs, attorney for Castañares, says: “We still have to go back to the trial court for a determination as to which specific videos are exempt. For now, we only know that the exemption does not apply across the board just because the cops invoke it.”
“Now [Chula Vista police] have to prove which [tapes] they should be able to keep from disclosure and which ones they have to give up.”
A “mechanical process of actually getting to the video” is yet to be set, Castañares said in a phone interview Thursday. But he expects a result this fall.
The upshot: “If you make a request today [for police drone video], they can no longer deny it” out of hand. “You would cite my case as the reason why they can’t deny it.”
Under the Public Records Act, police can deny access to investigative records or those involving private medical and other data.
A “public interest” or “catchall” provision allows police or other public agencies to refuse a records request when the local agency demonstrates the public interest in nondisclosure clearly outweighs the public interest in disclosure.
“The courts said in my case you have to look at the videos and then apply the law of whether or not they’re excludable — exempted or not,” Castañares said. “What they were trying to say was, without looking at the videos, they’re all exempt by the nature of the type of document.”
He called that a “stupid position to begin with…. I told them this is an indefensible position. You can’t say all videos [are secret]. If the drone goes up and the battery isn’t fully charged and they come right back down, they’re saying that’s an investigative record. Preposterous. Ridiculous.”
In a statement Thursday, a Chula Vista spokeswoman said: “The December 27, 2023, ruling from the Court of Appeal for the Fourth Appellate District did not rule that the City must disclose any videos at this time, nor did it grant any relief to the individual who requested the videos. The case will return to the trial court for further determinations. As this matter is active litigation, City of Chula Vista declines to comment further.”
Last December, the city said it originally declined Castañares’ request because releasing all drone footage “might have violated individual privacy rights.”
The statement also said city employees would have needed to review and redact all footage to remove the faces, license plates and other personal identifying information of people captured in the videos.
Those efforts would have been “time-consuming and costly” as it “would have required the city to dedicate the time of one full-time employee for approximately 229 full workdays,” according to the city.
The city further said that its decision not to release the footage was “not due to any desire for secrecy or to avoid accountability, but to avoid losing a program due to excessive costs and risks to the public’s privacy,” and that the appellate court’s opinion “may compromise significant privacy concerns of members of the public in this case, or in future requests.”
The city also released a statement in January after its City Council voted to appeal to the state Supreme Court.
Chula Vista police began exploring the use of drones in 2015 and a pilot program launched three years later that saw drones deployed to 911 calls and other emergencies.
In 2021, the police department’s drone program became the first in the nation to receive authorization from the Federal Aviation Administration to launch drones from anywhere in the city.
The decision could be consequential for other police records as well, Castañares says.
“It applies to anything that the police refer to as investigative records — it could be a document, a picture, a video,” said Castañares, who also filed suit to make Sheriff’s Department booking photos, aka mug shots, available, too.
Last month, attorneys for San Diego County responded to the mug-shot request suit by citing the “catchall” exemption, among other reasons. Their six-page brief also said: “Complaint/Petition is uncertain, unintelligible and/or ambiguous.”
Updated at 8:10 p.m. April 11, 2024