Q: I submitted a request arrest and incident reports from a police department for a case involving my client but I got a call from someone in the Records Department who said that I needed to submit signed authorization from my client. Is that the case in your practice?
A: If a person were submitting a request for reports under the Public Records Act, then there would be no requirement to submit any kind of written request. But access to arrest and incident requests is fairly limited under the PRA, so your client may have greater rights to access those records due to his or her involvement in the case than a member of the public would have under the PRA.
Under the PRA, many law enforcement records are exempt from disclosure (see below for exact language of exemption language). Specifically, the following are exempt: “[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.” Gov’t Code Section 6254(f).
While some information must be disclosed under the PRA, it may not be everything your client is looking for.
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:
(1) 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.
(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. The name of a victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3 (as added by Chapter 337 of the Statutes of 2006), 288.3 (as added by Section 6 of Proposition 83 of the November 7, 2006, statewide general election), 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim’s parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph.
Id.
Assuming that any involvement in the incident by your client entitles your client to greater access than what is provided by the PRA, the police may be on solid ground in asking for written authorization from your client.
One option would be to ask the records department for the legal basis for the request for authorization. It may be spelled out in a statute.
Or it may be that a statute spells out that someone in your client’s shoes is entitled to greater access and that the request for written authorization is a reasonable way to establish that your client is among the class of people to whom greater access is owed.
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.