Body Camera Lawsuit Could Set Precedent on Edited Footage

The ACLU is bringing legal measures against the Hayward, Calif., police due to their conduct at a 2014 demonstration and subsequent editing of body cam video.

by Rebecca Parr, The Daily Review, Hayward, Calif. / March 18, 2016
Police departments around the country have been adopting body cameras over the last few years. David Kidd

(TNS) — A lawsuit filed against Hayward, Calif., could set precedent as to whether a public agency can charge for editing body camera footage to remove material it maintains is exempt from disclosure.

The ACLU sued the city after Hayward billed the National Lawyers Guild more than $3,200 for disclosing edited footage from body cameras worn by Hayward police during crowd control at a 2014 Berkeley demonstration. People were protesting after grand juries did not indict police officers involved in the deaths of two African-American men, Michael Brown and Eric Garner.

Allowing government agencies to charge for redacting footage would make it difficult for people to obtain public records, said attorney Amitai Schwartz, whose law firm joined the ACLU in the lawsuit.

"Access to body camera footage is imperative," he said. "A lot of information has come to light about police use of excessive force. And some officers have been exonerated after footage has been reviewed. It's a very important issue. If the cost prices this out of availability for the press or public, nobody's going to get access."

A judge's tentative ruling Wednesday questions the charge, but both sides stress the ruling is only tentative.

"There is nothing final about this ruling; it's completely tentative. The judge could change his mind," Schwartz said.

Superior Court Judge Evelio Grillo asked for more evidence from Hayward to support its case.

"The court finds that Hayward's decision to charge the NLG $3,247.47 for the cost of reviewing and redacting the public records at issue is not supported by law," he wrote.

"The court finds that Hayward charged for the cost of reviewing the public records to determine if they contained exempt information, which Hayward cannot do under the law," the judge continued.

In certain situations, government agencies may remove, or redact, some information when complying with a state Public Records Act request. Reasons can include the right to privacy, confidentiality of an investigation and pending litigation, among others.

This was Hayward's first experience with a Public Records Act request for a video where it maintained portions should be removed. It also was the city employee's first use of the video editing software, according to court documents.

The city did not inform the Lawyers Guild of the charge until more than four months after the Public Records Act request was made.

Government agencies cannot charge for removing sensitive information from written documents, courts have found.

No matter how the judge rules, the case will be appealed, Hayward indicated in court documents.

"Is extracting the same as redacting, as is the case with 'paper' records? There is technology now available that is probably more advanced than the law on the books — it's a novel issue, and that is why the court's decision might go up on appeal," said Frank Holland, Hayward spokesman.

The case has been continued to March 29 in Alameda County Superior Court.

©2016 The Daily Review (Hayward, Calif.) Distributed by Tribune Content Agency, LLC.