Q: The city department of Code Enforcement wants to fine me $2500 per day up to $100,000 for code violations at my resident. When I made a public record request to see the evidence that the City’s has gathered on my property, it was denied stating that the case is still open and considered an active investigation. This matter has gone over a year now. No proof or evidence will be provided, but they are happy to fine me every single day until I comply with their ultimatum.
A: Under California’s Public Records Act, “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics” is a public record and must be disclosed to the public upon request unless a provision of the PRA exempts it from disclosure. Govt. Code § 6252-6253.
Section 6254(f) of the PRA exempts from disclosure:
“[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, … and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.”
Investigatory files of the city’s code enforcement office might qualify for this exemption to the extent that they are records maintained by a local police agency or part of security files compiled by a local agency for law enforcement purposes. See, e.g., Black Panther Party v. Kehoe, 42 Cal. App. 3d 645, 653 (1974) (complaints submitted to state licensing bodies about collections agencies were exempt under 6254(f)).
However, if 6254(f) applies, the PRA nevertheless provides that state and local law enforcement agencies:
“shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation: … the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved.”
Of course, this information might not be of much use to you at this point, given you probably are already aware of the basic facts related to your situation.
I also did not see anything in the case law indicating that the city is required to provide you with access to those records upon which it is basing its code violation.
Other considerations related to “due process” may be at stake here — i.e., was the city required to provide you with a hearing prior to assessing any fine, etc. This inquiry could depend on whether you have been accused of a criminal or civil offense (in general, the standards for due process are much higher in connection with criminal offenses).
It may be that you are entitled to a hearing on the issue, or the city has some sort of administrative procedure for appealing your alleged violation.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.