Q: We have a City Council unfamiliar it seems with the First Amendment. The most recent proposal is to order the police to “resist” public records act requests for certain booking photos.
The local journalist here is standing pretty much alone. My interest is only concerned citizen. I just looking for the ammunition to be an involved citizen, and resist the order to resist.
A: I’m sorry to hear the city council is attempting to limit the amount of information that is disclosed to the public in connection with police activity. While police investigatory records are exempt from disclosure under the Public Records Act, there is certain information that the police are required to release to any member of the public who asks, unless “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.” Gov’t Code 6254(f). This information includes:
(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) (A) 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, 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, 288.4, 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 atthe 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.
All of this said, the police are free to release records or information that otherwise might be exempt from disclosure, as these exemptions are discretionary. In the situation you describe, the city council certainly cannot preempt the Public Records Act and instruct the police to withhold information that it is required to release by law. On the other hand, the city council could adopt a more liberal policy in connection with police records, and encourage the police department to share more than is required under the law.
As for booking photos, unfortunately, whether such photos must be shared with the public has not been challenged in court, and some police departments consider such photos “investigatory records” that are not subject to disclosure under the PRA. That said, many police departments choose to release booking photos to news outlets and on their own websites.
Bryan Cave Leighton Paisner 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. No attorney-client relationship has been formed by way of this response.