Q: My daughter was raped by her ex and he recorded it. She obtained the video and filed charges. Her ex is the son of a DA employee. They did not file charges and “lost the video.” They did not notify anyone and the case is closed. Since then they have refused to enforce a Domestic Violence Restraining Order and it has been violated several times. When we requested files/explanations we were told they were in storage but the video was “lost.” Does my daughter or myself (she appointed me to represent her) have the right to see her files? She has asked the Attorney General’s Office and the Grand Jury to intervene. But that could take forever.
A: First of all, I want to express how sorry I am for your daughter. I can understand your desire to obtain as much information as possible about this investigation, or lack thereof.
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. Gov’t Code Section 6252-6253.
One of the exemptions under the Act covers “[r]ecords of complaints to, or investigations conducted by … 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.” Govt. Code Section 6254(f).
That section does provide that “state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, … and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation.
However, nothing in this division shall require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.” Gov’t Code Section 6254(f). Unfortunately, this particular section does not require the release of contents of an investigatory files.
Thus, to the extent that the records you seek are maintained by local police, it appears there is only limited information that you can obtain through the Public Records Act.
It sounds like you may also be seeking records from the District Attorney’s office regarding its investigation. The District Attorney’s office would probably qualify as a “local agency” under the Act. However, to the extent that the DA’s office conducted its own investigation into the reported crime, those records are also probably exempt from disclosure under Section 6254(f). See, e.g., Rackauckas v. Superior Court, 104 Cal. App. 4th 169, 175-76 (applying investigation exemption to records maintained by district attorney).
Nonetheless, you might want to submit a Public Records Act request for records that might fall outside the exemption, such as internal emails regarding your daughter’s ex-boyfriend’s parent, which might give you a sense of how the DA decided to approach his or her investigation.
You can find general information about the PRA at the First Amendment Coalition’s web site (https://firstamendmentcoalition.org/category/resources/access-to-records/).
If you are interested in retaining an attorney to assist you with a PRA request, you may be able to find one through the First Amendment Coalition’s Lawyer’s Assistance Request Form at https://firstamendmentcoalition.org/legal-hotline/lawyers-assistance-request-form/.
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.