Q: I am researching a decades-old murder. I have spoken with the DA’s Chief Inspector about the case and he is unwilling to share any information with me whatsoever. Therefore, my only real recourse is to attempt to secure relevant files, videos, pictures, coroner’s report, police report, and notes the information via a FOIA request.
That having been said, I am not sure who I should approach with my request. Should I send it to the AG’s office, or is there a local entity that would be more appropriate?
A: It is disappointing, but not surprising, that the District Attorney’s investigator is unwilling to disclose any records related to this old case. I am assuming that in responding to your request, the DA cited the investigatory records exemption, Gov’t Code § 6254(f), to the Public Records Act. (The California Public Records Act would govern requests to both the DA and local police, as opposed to the federal Freedom of Information Act, since you are seeking records from local agencies.)
The investigatory records exemption allows police and other investigatory agencies, including the district attorney’s office, to withhold investigatory files from the public, even after the investigation is over and and the perpetrator has been convicted. See, e.g., Rivero v. Superior Court, 54 Cal. App. 4th 1048, 1051-52 (1997); Fagan v. Superior Court, 111 Cal. App. 4th 607, 615 (2003).
That said, to the extent any of the records in the DA’s file were filed with the court – charging documents, other court filings – the DA should have provided you with those documents. Weaver v. Superior Court, 224 Cal. App. 4th 746, 751 (2014) (“Because they were publicly filed, the charging documents [plaintiff] seeks are not investigatory files exempt from disclosure under the CPRA.”). You might want to write to the DA requesting any court-filed records related to this case (and citing the Weaver
case, if you get any pushback).
Likewise, you could request the court file from the court itself (I’m assuming this case was pending in the predecessor to the County Superior Court, so you’d probably want to request files from County Superior). There is a general First Amendment right of access to documents filed with courts that can only be overcome by showing the documents were properly sealed around the time they were filed. The court records may very well contain documents from the police and district attorney that were included in filings with the court.
With respect to requesting police files, it seems you would want to request records from any and every agency that investigated this murder – likely the sheriff’s office and possibly the state Attorney General’s office (if it was involved in the investigation).
My recommendation would be to send a straightforward request to each police agency asking for any records related
to the murder (and giving specifics on the year, etc.). The agencies may balk at your request, and cite the same investigatory records exemption that the DA was likely claiming.
Unfortunately, this exemption gives the police agencies a valid reason not to disclose the records, and there’s nothing in the Public Records Act or case law that I know of that would overcome this exemption. (Many other state open records laws do not contain this exemption, and records are generally subject to disclosure once an investigation is concluded; the strength of this exemption is unique to California.)
However, exemptions to the PRA are generally discretionary. There are certain categories of records that are required by law to be exempted, but police investigatory records are not, as a general matter, included in any of these categories of records.
Thus, a police agency could choose to disclose the records to you despite the fact the PRA does not require it to do so. If the PDs deny your initial request for these records, citing the investigatory records exemption, you might want to write them back and lay out policy reasons why disclosure would benefit the public (increased awareness of child safety, for example).
You can find additional information about the Public Records Act, include a sample request letter, on the FAC’s website
here. I wish you the best of luck with your Foundation and in your endeavors to educate the public about child safety.
Bryan Cave 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.