A Practical Approach to Video Surveillance Technology San Diego Metropolitan Transit System Karen Landers San Diego Metropolitan Transit System 1255 Imperial Avenue, Suite 1000 San Diego, CA 92101 (619) 557-4512 Karen.Landers@sdmts.com
As general counsel for the San Diego Metropolitan Transit System, Karen Landers represents the MTS Board of Directors at all public meetings and is a member of the CEO s management team, providing advice on policy, litigation and other legal matters for all divisions under the MTS umbrella (including bus operations, trolley operations, security, finance and other administrative matters). She oversees work by outside counsel in various litigation or specialized matters and supervises the Risk/Claims/Workers Compensation, Internal Audit and Real Estate Assets departments.
A Practical Approach to Video Surveillance Technology San Diego Metropolitan Transit System Table of Contents I. Background...243 II. MTS Camera Technology...243 III. Legal Basis for Installing Cameras...243 A. Video Retention Requirements...244 B. Privacy Considerations...244 C. Practical Issues to Consider When Responding to Video Requests...245 Endnote...246 A Practical Approach to Video Surveillance Technology San Diego... Landers 241
A Practical Approach to Video Surveillance Technology San Diego Metropolitan Transit System I. Background San Diego Metropolitan Transit System (MTS) is a transit development board created by the California Public Utilities Code ( 120000 et seq.) MTS is a public agency that operates public transit within its designated jurisdiction (the cities of San Diego, Chula Vista, National City, Imperial Beach, Coronado, Poway, La Mesa, Lemon Grove, Santee and certain unincorporated areas of the County of San Diego). MTS employs approximately 35 code compliance inspectors ( CCI ), who are considered public officers under California Penal Code section 836.5: A public officer or employee, when authorized by ordinance, may arrest a person without a warrant whenever the officer or employee has reasonable cause to believe that the person to be arrested has committed a misdemeanor in the presence of the officer or employee that is a violation of a statute or ordinance that the officer or employee has the duty to enforce. (Cal. Pen. Code 836.5(a).) MTS also contracts with Universal Protection Services, Inc. (dba Transit Systems Security, Inc.) to provide approximately 170 armed security guards (referred to as TSS officers ). The TSS officers work individually or paired with a CCI or other TSS officer. Assignments include a designated transit station, a train team to ride various trains for safety/security or with a CCI to check for fares and issue citations, or on special enforcement details. Depending on the particular assignment, the CCI and/or the TSS officer may be in uniform or plain clothes. For felony arrests or other situations that require a law enforcement response, the CCI or TSS Officer, via the MTS Central Control/Operations Center, will request a response from the local law enforcement agency where the incident is occurring. This requires MTS to have cooperative working relationships with multiple law enforcement agencies. The main focus of the MTS officers is to provide a safe and secure environment for passengers and MTS employees, to deter crimes on MTS property, to ensure that MTS ordinances are being followed and to check for fare violations. II. MTS Camera Technology Since approximately 2010, MTS has been upgrading and expanding its video surveillance network. The network now includes cameras on approximately 587 buses (8 cameras per 40 vehicle, 10 cameras per 60 vehicle), cameras on 107 light rail vehicles (12 cameras per vehicle), cameras at 34 of 55 stations, and body cameras on each CCI. MTS intends to install cameras on 173 paratransit and 37 minifleet buses in 2015. The cameras are used for various purposes, including (1) investigating crimes; (2) investigating passenger complaints; (3) investigating vehicle accidents; (4) monitoring and training employees; and (5) evaluating/defending tort claims. III. Legal Basis for Installing Cameras MTS cameras are installed in public areas where there is no reasonable expectation of privacy as a matter of law. Notices that such areas are under video and/or audio surveillance are posted at stations and on transit vehicles. A Practical Approach to Video Surveillance Technology San Diego... Landers 243
A. Video Retention Requirements California Government Code section 34090.8 1 expressly recognizes the right of transit agency security systems. Section 34090.8, adopted in 2003, includes lofty retention goals for such video recordings: one year. An exception to this requirement is built into the statute: (a) When installing new security systems, a transit agency operated by a city or city and county shall only purchase and install equipment capable of storing recorded images for at least one year, unless all of the following conditions apply: (1) The transit agency has made a diligent effort to identify a security system that is capable of storing recorded data for one year. (2) The transit agency determines that the technology to store recorded data in an economically and technologically feasible manner for one year is not available. (3) The transit agency purchases and installs the best available technology with respect to storage capacity that is both economically and technologically feasible at that time. (b) Notwithstanding any other provision of law, video recordings or other recordings made by security systems operated as part of a public transit system shall be retained for one year, unless one of the following conditions applies: (1) The video recordings or other recordings are evidence in any claim filed or any pending litigation, in which case the video recordings or other recordings shall be preserved until the claim or the pending litigation is resolved. (2) The video recordings or other recordings recorded an event that was or is the subject of an incident report, in which case the video recordings or other recordings shall be preserved until the incident is resolved. (3) The transit agency utilizes a security system that was purchased or installed prior to January 1, 2004, or that meets the requirements of subdivision (a), in which case the video recordings or other recordings shall be preserved for as long as the installed technology allows. (See also California Attorney General Opinion No. 02-207 dated December 20, 2002.) Current technology makes it unmanageable to maintain all MTS video for a one year period. The current system includes high-resolution cameras which consume a large amount of memory/storage space. The MTS system is based on DVR recordings that typically are available for 7-21 days after an incident. If MTS is made aware of an incident or complaint within this time frame, then the video is typically sought as part of an investigation. Once a specific video clip is downloaded, the video is retained by the Security Department (in the case of a crime investigation) or by the Risk Department or the Operating division (transit or trolley) for an indefinite period of time. MTS is in the process of upgrading its video system to bring all transit stations to the high-resolution camera technology (Avigilon) and to upgrade our storage system to maintain a consistent 14 minimum retention period. B. Privacy Considerations In 2013, California enacted AB 179, establishing new privacy protections for travel and transit data. AB 179 added provisions to California Streets & Highways Code section 31490 concerning the confidentiality of certain information collected by transit and toll road agencies. AB 179 put significant restrictions on the dissemination of personally identifiable information in possession of the transit agency: 244 Civil Rights and Governmental Tort Liability January 2015
A transportation agency may make personally identifiable information of a person available to a law enforcement agency only pursuant to a search warrant. Absent a provision in the search warrant to the contrary, the law enforcement agency shall immediately, but in any event within no more than five days, notify the person that his or her records have been obtained and shall provide the person with a copy of the search warrant and the identity of the law enforcement agency or peace officer to whom the records were provided. AB 179 defines personally identifiable information as: any information that identifies or describes a person including, but not limited to, travel pattern data, address, telephone number, email address, license plate number, photograph, bank account information, or credit card number. For purposes of this section, with respect to electronic transit fare collection systems, personally identifiable information does not include photographic or video footage. The exclusion of photographic and video footage included in AB 179 was the result of transit agencies concerns that this provision would prevent the agencies from using the video footage for their intended purpose, which includes releasing video to interested parties after an investigation or in response to a claim or complaint. In contrast to the privacy provisions granted in AB 179, California s Public Records Act (Government Code 6254, et seq.) limits the ability of an agency to prevent public disclosure of video footage. Under the Public Records Act, documents, which includes video footage and other electronic data, is presumed to be a public record and subject to disclosure, unless an express exception applies. Various exceptions are written into the law. However, the exceptions that reasonably apply to video surveillance footage is if it is (1) the subject of a pending law enforcement investigation (Gov. Code 6254 (f)) or (2) the public interest in non-disclosure of a particular video outweighs the public interest in disclosure (Gov. Code 6255). In general, the video collected by MTS would not fall under these exemptions. Most often, MTS provides video in response to requests from individual tort claimants or as part of a criminal case. At times, MTS will receive overly broad requests for significant blocks of time. This places a significant strain on the personnel at MTS tasked with overseeing the video surveillance systems. Most stations have 8 or more cameras. Downloading two to six hours of video from eight separate cameras takes a significant amount of time and resources. To treat these requests as fairly as possible, within the resources available, MTS will (a) Work with the requestor to narrow the request to a specific 10-15 minute time period or to identify a specific incident that we may have a record of in order to locate the video of a specific incident; (b) If the requestor is an officer of the court (law enforcement, district attorney or public defender investigator), MTS will make an appointment for the investigator to come to the Control Center and view the video on a terminal. If/when the investigator identifies a smaller block of video to download and copy, it will be provided. (c) If these solutions are not acceptable, MTS is prepared to have this task contracted out to our video system consultant, at an approximate charge of $100/hr, to be paid by the requestor. C. Practical Issues to Consider When Responding to Video Requests (1) Media Requests A Practical Approach to Video Surveillance Technology San Diego... Landers 245
a. Will disclosure compromise pending law enforcement investigation? (Generally refer this question to the investigating agency). b. Private citizen iphone/personal video likely available and on social media/news outlets. c. Agency transparency vs. appearance of obstruction (2) Reputational Risks/Concerns vs. Benefits of Prompt Disclosure a. Liability Risk: even if video shows failure to follow agency policies or engage in best practices, this does not necessarily mean the video will provide evidence of excessive force or a civil rights violation as a matter of law. b. Use of the video to take corrective action, and to reiterate that such conduct (if it violates policy) is not condoned or tolerated by agency management. i. Re-training ii. New best practices/techniques iii. Disciplinary action (3) Video Failures a. System failure (no video recorded) b. Failure to promptly download and secure before DVR system records over itself c. Storage system failure (video file lost after downloading) (4) Managing Risk a. Video allows Risk Management to have an objective view of the incident i. May show liability, which then shifts response to a dispute over appropriate damages (no need to litigate liability issue). ii. May show no liability and provide clear proof that deters claimant from filing lawsuit. 1. Eliminates uncertainty and cost of blind claims 2. Include in claim denial with explanation of why the video shows no liability iii. May have a deterrent effect 1. CCI body cameras a. acts to de-escalate situation (officer knows they are being recorded; patron may be informed of recording) b. shows contact from beginning to end (station cameras often not focused on incident until midway through, which can actually have the opposite impact - only showing officer hands on individual without context of how/why the contact escalated) c. limitations: view blocked by citation booklet, etc. d. advantages: audio recording explains context, tone of voice and the content of the conversation often dispositive Endnote 1 Because this code section applies to transit agencies operated by a city or city and county, it technically does not apply to MTS. 246 Civil Rights and Governmental Tort Liability January 2015