Investigatory Privilege and California Public Records Act Requests
It's the Information, Not the Record, that Must be Considered, Say BB&K's Christine Wood and Isaac Rosen in PublicCEO
One afternoon in May 2015, six Glendora Police Department officers entered a residence in La Puente, after a confidential informant said narcotics were being sold and transported from the home.
The officers, who had surveilled the home for 10 days, entered through an unlocked front door without a warrant or consent. While a search warrant was later obtained, the City of Glendora was sued, and its officers accused of constitutional and civil rights violations stemming from their warrantless entry.
Two years after the incident, the plaintiff, Jeffrey Goodin, requested related police reports under the California Public Records Act, but the Department denied the request under Government Code section 6254(f), stating the investigation remained open. In Goodin v. City of Glendora, the judge found that the investigation was no longer open, and the Police Department violated the CPRA by improperly denying the plaintiff’s requests and failing to release all of the disclosable information requested.
The case serves as a reminder that law enforcement agencies must remain diligent about the information, or exceptions, requiring disclosure within otherwise exempt law enforcement records.
The “Investigatory Privilege”
The California Constitution enshrines the right of every person to inspect the public records in any agency’s custody or control, including law enforcement agency records. Absent an exemption recognized under state or federal law, the public’s right to disclosure must be broadly construed by public agencies.
Section 6254(f), widely known as the “Investigatory Privilege,” is the most common exemption from the disclosure of law enforcement records under the CPRA. However, this isn’t an absolute privilege. Not all information maintained by a law enforcement agency is exempt from disclosure under section 6254(f).
In fact, public agencies are obligated under section 6254(f) to publicly disclose certain information contained within law enforcement records, making a statutory “exception to the exemption.”
It’s the Information Requested that Matters
Certain information contained within complaints to, or investigations conducted by, state or local law enforcement and prosecutors in California must be disclosed under the CRPA, even if this information is found within records that are otherwise exempt from disclosure.
Section 6254(f) is codified in a written style that makes it difficult to discern what material is exempt — meaning what information agencies must withhold — and the information within these exempt records that must be disclosed, or exceptions to the exempt material.
Generally, material otherwise disclosable under section 6254(f) may still be withheld under the Investigatory Privilege if disclosure of that material would:
- Endanger the safety of a witness or other person involved in an investigation or
- Endanger the successful completion of the investigation (or a related investigation).
Additionally, law enforcement agencies are not otherwise required, irrespective of the information that must be disclosed under section 6254(f), to disclose the analysis or conclusions of an investigating officer.
While law enforcement agencies maintain a broad array of records, many of which may not be disclosed in their entirety, it is important to consider the specific information being requested under section 6254. For example, a law enforcement agency could be asked to produce the substance of complaints or the factual circumstances surrounding an arrest. In both instances, the law enforcement agency would be required to disclose this material.
There are different disclosure requirements depending on the type of record sought from law enforcement. Several instances of specific exceptions to the Investigatory Privilege exemption, based on the record sought, include:
Information that must be made available to the general public includes: the time, substance and location of the complaints or request for assistance; the time and nature of law enforcement’s response; the time, date and location of occurrence; the time and date of report; factual circumstances surrounding the crime or incident; a general description of injuries, property and/or weapons involved; and the name and/or age of victim (unless their identity must remain confidential under state law).
Additionally, victims and their authorized representative (including legal counsel and insurance agents when a claim resulting from the incident is filed) have greater access than the public, including: the names, addresses and statements of involved persons and witnesses to the incident (not including confidential informants) and a description of any property involved.
Information that must be made available to the public includes: the name and occupation of the arrestee; a physical description; date of birth; the time and date of the arrest; factual circumstances surrounding arrest; amount of bail; the time and manner of release or the location where the arrestee is held; and all charges, including outstanding warrants, parole or probation holds.
However, exempt from arrest records is the arrestee’s personal identifying information (i.e. Social Security number, driver’s license and phone numbers), criminal history and current address.
Audio & Video Footage:
Assembly Bill 748, effective July 1, 2019, amended section 6254(f) to allow greater public access to audio and video recordings, including footage from police body cameras. Critical incident recordings, including both the discharge of a firearm at a person by an officer, and an incident in which the use of force by an officer resulted in death or great bodily injury to a person, must generally be made publicly available within 45 days, with limited exceptions.
Disclosure may be delayed for up to one year during an active criminal or administrative investigation, but only if the disclosure would substantially interfere with that investigation.
Agencies must be able to produce audio or visual recordings while maintaining a reasonable expectation of privacy for those being depicted in the recording. Agencies are expected to use redaction technology that blurs or distorts images or audio. If an agency cannot adequately protect a subject’s privacy with the use of such redaction technology, then it may withhold the entire recording. However, a copy must be made available to any person (or designated representative) whose privacy interest is protected by the public nondisclosure.
Peace Officer Records:
With the 2018 passage of Senate Bill 1421, Penal Code section 832.7 was amended to make certain peace officer personnel records disclosable under the CPRA. Generally, police officer personnel records are exempt from disclosure except in limited instances following a court action.
That information within a peace officer’s personnel records that are now disclosable under the CPRA include: investigations and findings related to an officer’s discharge of a weapon at a person or use of force by an officer resulting in death or great bodily injury. Also disclosable are records where sustained findings were made that an officer engaged in sexual assault involving a member of the public, or that an officer was dishonest in the reporting, investigation or prosecution of a crime or the reporting or investigation of another peace officer.
Withholding Victim, Juvenile Information
Under section 6254(f), identifying information about victims of particular crimes may be withheld at the victim’s request.
This includes victims of violent sex crimes, domestic violence, crimes made against a minor, prostitution and stalking, among others. A minor victim’s parent or guardian may also request the information be withheld.
Juvenile records are also generally confidential and not subject to disclosure. If juvenile records were sealed under the California Welfare & Institutions Code or Penal Code, the requester must comply with the procedures set out by statute for record release. To the extent a minor is a victim or a witness to a crime, that information is protected from disclosure as described above.
Code Enforcement Records Not Included
Local public agencies often rely on administrative, civil and criminal enforcement to gain compliance with municipal codes and other adopted ordinances that institute local regulations in furtherance of the public health and safety.
Administrative code enforcement records, however, do not fall under the investigatory privilege.
Unless another exemption from disclosure applies under the CPRA, local public agencies must disclose code enforcement records, including notices of violation, administrative citations, routine administrative inspections and follow-up. However, agencies may rely on the “catch-all” exemption found in Government Code section 6255 to protect personal identifiable information and the identity of the reporting party.
With every CPRA request, it is imperative to consider the information that is being requested, not just the type of record. While the record itself may not be disclosable in its entirety, some of the information contained in that record may be. Agencies must consider each request carefully to ensure compliance with the CPRA.
This article first appeared in PublicCEO.com on June 2, 2020. Republished with permission.