A&A: Police Deny Request for Previously Public Statement Claiming Exemptions

Q: I am seeking public records from the Police Department. They routinely deny access to records claiming exemptions.

In 2017 police drew guns on a group of black youth at the Target store. After a viral video criticizing the incident was posted and subsequently deleted, the Police released a statement. My request for records from the incident were denied by the police.

I would like to challenge their refusal to provide the records claiming an exemption. I believe some portion of this info should be publicly available and their narrative should not be accepted without verification.

A: Unfortunately, under California’s Public Records Act, police investigatory records are exempt from disclosure under Government Code § 6254(f), which exempts “[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures…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. Code, § 6254(f).

Police are required to release a limited amount of information related to arrests and requests for assistance, unless the disclosure of such 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.”  Id.

This information includes “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.”  Gov’t Code § 6254(f)(2).

Of course, I realize this information is not all that helpful to you as an investigative reporter, but unfortunately, this is the extent of information that the law requires police departments to release.  That said, the exemption contained in 6254(f) is discretionary, and therefore, if a police department wanted to release more records related to this incident, it could without running afoul of the Public Records Act.  To this end, you might want to write to the agency explaining why it’s in the public’s interest to learn the details surrounding this incident.  You could also appeal to the city council to see if you can garner some public pressure to release these records.

There may be a limited number of records that you have requested that would not fall under the police investigatory records exemption, e.g., “any and all communications to the Mayor, City Council, City Manager, and Target store staff regarding this incident.”  It would seem that such communications fall outside the scope of the investigation itself, and thus are not investigatory records.  You might want to follow up with the city’s PRA officer to point this out, and ask that, at the very least, these records be released to you.

I would also suggest searching in both the County Superior Court and U.S. District Court for the Northern District of California to see if there are any court records related to this incident that you might be able to access and review.  If, for example, one of the youths filed a civil rights lawsuit against the police department, you should be able to view the court file, which may include portions of the police investigatory file submitted as evidence by one side or the other.  Even if these records are exempt from disclosure under the PRA, once they become part of the court file, there is a First Amendment presumption of access to those records that would trump the state law.

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.