Boating Accidents and the CPRA
Q: I am a marine insurance adjuster retained by a boater’s insurance company to investigate a serious boating accident that occurred in June of 06 near the Colorado River. A local sheriffs department investigated. The deputy found the boater in violation of three misdemeanor boating code violations and in his report which the county sent us a copy of he recommended referral to the DA’s office. The boater has never been prosecuted. The report indicates there were recorded statements taken by the deputies from the participants and several witnesses. We called the Sheriffs records division and asked if we could get copies of the statement tapes. They declined and stated we would have to get a subpoena. This matter is not in suit. I read the statute and am not sure if we have a right to continue to formally move forward with the request for duplicates of the tapes. Any advice would be greatly appreciated.
A: Under the California Public Records Act, Government Code section 6250 et seq., records maintained by public agencies are presumptively available for public inspection and copying unless one of the Act’s exemptions applies. In this case, the Sheriff’s department is probably relying on section 6254(f), which exempts “records of investigations” as well as “investigatory files.” Unfortunately, the exemption continues to apply even after an investigation has been completed.
That said, the sheriff’s department is required to provide you with a variety of information about he incident, including the “factual circumstances” surrounding the incident. Section 6254(f) provides, in relevant part:
Notwithstanding any other provision of this subdivision, 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:
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(2) Subject to the restrictions imposed by Section 841.5 of the Penal Code, 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.
In some cases, a law enforcement agency can be persuaded that the best way to ensure they have complied with the Act’s requirement that information about the factual circumstances be released is to provide documents such as the statements you are seeking. Even if the statements themselves are exempt from disclosure, that disclosure is only permissive, not mandatory, and the sheriff’s department may choose to release the statements if it wishes.