Q: The police are refusing to release a report it is doing on a shooting. Many months have passed since the incident. They give no explanation for their actions. What would be the best way to proceed to get them to release the report?
A: As you may know, under California’s Public Records Act, public records — which include “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,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.
Records that are exempt from disclosure under the PRA include:
“[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, the California Emergency Management Agency, 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.” Govt. Code § 6254(f) (see below in green for entire text of provision).
This exemption is fairly broad and generally makes it difficult to obtain police investigation records. While it is not the case that any report that a police department might create would automatically be exempt, any records related to complaints to or investigations conducted by a police department probably would be.
Note, however, 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 full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.” Govt. Code § 6254(f)(1).
To the extent this kind of information is among what you are looking for, you may be able to obtain at least the information, if not the report itself.
With respect to procedure for trying to get the report, the first step would be to make a request under the PRA. Requests need not be in writing, but a written request should result in a written response.
If a denial, the response should set forth the basis for the denial.
If the agency refuses to disclose the report, you could try pushing back with appropriate legal arguments as to why the report is subject to disclosure (e.g., perhaps it is not fairly characterized as a record of an investigation conducted by a law enforcement agency) or why the agency should exercise its discretion to release the report even if the PRA arguably does not require its disclosure.
Ultimately, however, the only way to force an agency to disclose a record under the PRA is to file a lawsuit.
You can find additional information about making requests under the PRA on the First Amendment Coalition web site at https://firstamendmentcoalition.org/category/resources/access-to-records/.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.