Q: I have been conducting academic research in the “Zodiac Killer” case from the late 1960s and early 1970s. As part of my research, I have made several requests for police files and records from that time in relation to that case. However, I have found the local law enforcement to be uncooperative and often uncommunicative. In a number of my public records requests, they have used legal semantics and a vague interpretation of the California Public Records Act to stonewall my attempts at finding information.
At this point, I fear a retaliatory lawsuit if I continue to pursue these matters, and I am frustrated at my inability to acquire these necessary documents to continue my research.
What tools are at my disposal to continue my search for records pertaining to this case? I do not have the budget to hire an attorney, so everything has to be undertaken by myself.
A: I am sorry to hear of the stonewalling you are facing. Unfortunately, when an agency improperly withholds records, the only means for private citizens to enforce the Act is to file a lawsuit.
A lawsuit under the CPRA is initiated by submitting a verified petition to a court asking it to issue a writ of mandate directing the agency to release the requested records. Cal. Gov. Code § 6258 provides that “Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter.” Usually, a judge will consider the legal briefs and evidence submitted by both parties before ruling on whether the records were properly or improperly withheld. You may ask the judge to examine the records in private during the course of the litigation. Cal. Gov. Code § 6259(a).
If you are successful in proving a violation of the public records laws, the court will order the agency to release the records, and the agency will be liable for your court costs and attorney’s fees. Cal. Gov. Code § 6259(b), (d). However, if the court finds your suit is “clearly frivolous,” you will be responsible for the agency’s court costs and reasonable attorney’s fees in defending the lawsuit. Cal. Gov. Code § 6259(d).
Before engaging in litigation, you may wish to write back to the law enforcement agencies to inform them that you believe they are improperly withholding records and to remind them that, should you be forced to pursue legal action, they will be responsible for paying your attorney’s fees.
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.