Q: I submitted a rather complex public records request to a number of local police agencies. My requests sought records pertaining to individuals detained by local police and subsequently turned over to federal immigration authorities, without formal arrest.
My requests have been denied on various grounds, but most of them on the basis of County of LA v. Superior Court, the Kusar case. My request does require the search of numerous documents going back to 2007, but only asks for “blotter-type” information, i.e. name, date of detention, charges, etc., which I understand are firmly in the public sphere.
Is the “contemporaneous” restriction iron clad, even with such routinely releasable information? I read that the time involved in producing information is factored into decisions regarding Kusar. The information requested is work-intensive to produce only because the agencies say they don’t record it in a searchable format. Is that an acceptable excuse for denying a request? Isn’t that just an incentive for police agencies to maintain primitive technology? Anyway, your help and advice would be appreciated.
A: As you are aware, the availability of police records is governed by Govt. Code section 6254(f). That section defines both the records that law enforcement agencies may withhold from the public and what information it must extract from its records and provide to the public. Among the records exempt from disclosure are “records of . . . investigations conducted by. . . or any investigatory or security files compiled by any other state or local police agency . . . .” The exemption applies equally to ongoing and closed investigations. Williams v. Superior Court, 5 Cal. 4th 337 (1993).
The information required to be extracted from such records upon request basically falls into four categories:
(1) incident and witness information that need be disclosed only to the victim and his or her insurance agency;
(2) arrest information;
(3) calls-for-assistance and dispatch information; and
(4) contact information for arrestees and victims as long as such information will not be used for commercial purposes. (Please read the section to see the specifics of the information that must be disclosed.)
There are exceptions for information the disclosure of which would interfere with an ongoing investigation or endanger a witness.
However, as you know, these disclosure requirements apply only to contemporaneous records. County of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588 (1993). It is unclear for how long past the date of arrest a record is considered “contemporaneous.” But it is probably a matter of days or weeks, rather than years. This limitation applies to the operation of the exemption as a whole, even to the bits of information the disclosure of which would otherwise have been routine. The fact that the agency would have to put in significant effort to compile the records is the very reason behind the Kusar rule.
In many cases, the best way around the Kusar rule is if the records had been compiled for a previous request that was more contemporaneous with the arrests. Some law enforcement agencies keep such compilations arranged chronologically. If you have any information about a specific arrest date, you may be able to get records through that method.
Bryan Cav, LLC 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.