Q: I am researching the ‘Black Dahlia’ murder in California in 1947. I have asked the LAPD for its file on this case, which has been refused under section 6254(f) of the CPRA.
The FBI and DA have disclosed their files on the case (the FBI with heavy redactions).The LA County Coroner’s Office refuses to disclose the coroner’s report pursuant to a security request from LAPD. In 2012, the LAPD Museum held a ‘Black Dahlia’ exhibition which disclosed some of the material in the file.
The case is now almost 70 years old and the perpetrator of the crime, along with virtually all involved in its investigation, are dead. I want to know if there is a case to challenge the LAPD’s refusal to release the file, and also if there may be some grounds for waiver of privilege in the fact that certain documents from the file were made public in the 2012 exhibition. I am happy to contribute to the First Amendment Coa lition Project.
A: From your inquiry I understand that you have submitted a California Public Records Act request to the LAPD for its file on the case and the LAPD has refused to disclose records to you under Cal. Gov’t Code § 6254(f).
As you know, police investigatory records are generally exempt under the California Public Records Act, except that certain information regarding arrests and incidents is required to be disclosed to the public. Gov’t Code section 6254(1), (2).
Unfortunately, once a record is created for investigatory purposes, it remains exempt, even if the investigation is over. Williams v. Superior Court, 5 Cal. 4th 337, 361-62 (1993). So the passage of time, alone, would not give you access to the LAPD files for the Black Dahlia murder records.
However, if you can establish that the LAPD’s Office has disclosed the records to a “member of the public” by disclosing the records in the LAPD Museum ‘Black Dahlia’ exhibit, then the LAPD cannot shield records that would otherwise be shielded by § 6254(f).
Access to records that have already been disclosed to a “member of the public,” cannot be denied to others, even if an exemption does apply. Gov’t Code § 6254.5 (“Notwithstanding any other provisions of the law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Sections 6254, 6254.7, or other similar provisions of law.).
With respect to the Public Records Act, the law does generally require that once records are shown to one person, they must then be shown to all subsequent requesters, even if the records were otherwise exempt from disclosure, and even if the initial disclosure was made to a person who was the subject of the records. See Govt. Code section 6254.5; Black Panther Party v. Kehoe, 42 Cal. App. 3d 645 (1974). So you should be able to access any records that have been otherwise disclosed to any other member of the public.
It is helpful that this particular code section provides that “agency” includes an “agent” of the agency, which arguably encompasses third-party agents, such as the Los Angeles Police Historical Museum, of the LAPD. Under this reading, no matter who turned over the records – agency staff of the LAPD or the museum – the public records are out of the bag, so to speak, and therefore they should be provided to you just as they were provided to the other members of the public. You may want to write back to the LAPD reminding them that if they have disclosed the records to another member of the public they have waived the exemption under Cal. Gov’t Code § 6254.5.
Finally, if the museum itself is a public agency, you can also try requesting the records directly from the museum. The CPRA applies to nearly all information held by state or local government agencies. The CPRA applies to all local agencies, as well as legislative bodies subject to the Brown Act. Gov’t Code § 6252(a), which incorporates Gov’t Code § 54952, subdivisions (c) and (d), part of the definition of a “legislative body” under the Brown Act.
Thus, the CPRA also applies to certain private, nonprofit entities that perform governmental functions. You may want to review the museum’s bylaws to see if it could qualify as “legislative body” under the Brown Act under Gov’t Code § 54952, which would make the museum subject to the CPRA under Gov’t Code § 6252(a).
Both the Brown Act and the Public Records Act use the same criteria in determining whether an entity such as the one you describe is subject to those laws.
In short, an entity falls within the scope of both acts if it is “created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body” or “[r]eceives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.” Govt. Code § 54952(c), 6252(a).
If the museum was created by a legislative body and or receives funds from a government agency and has a member of the local agency as a voting member, it would be subject to the CPRA.
Finally, I should add that to the extent that what you are looking for was filed with the court, you have a First Amendment right of access to those records.
Bryan Cave 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 unless separately retained.