Q: This concerns a California Public Records Act request I recently made to a Police Department, and the response I got back improperly withholding some information from one of the responsive and disclosable Computer Aided Dispatch (CAD) Call Reports.
Recently, one of the neighbors was having a very loud late-night party and illegal gathering (vis-à-vis the COVID-19 shelter-in-place order). I called the police and reported the incident. Then, some days later, as the victim of the incident (I live in the neighborhood and was being disturbed by the illegal noise), I emailed a CPRA request asking for a copy of the relevant CAD Call Report. I got back that call report, which did not contain any “analysis or conclusions of the investigating officer.” Despite this, the names of the adults involved had been redacted from my copy of the CAD Call Report, even though I was the victim of the incident, and even though disclosure of their names wouldn’t endanger those involved or the successful completion of the investigation (which was finished on the spot) or related investigation (of which there weren’t any).
Today I received a letter from one of the city’s off-site attorneys that concludes, “The City Attorney’s office and the Department consider this CPRA request to be closed and will not further engage with you on this particular request.” They even denied me “the names and titles or positions of each person responsible for the denial.” (GOV 6253(d)(3).)
Q: We can provide you with general information about the CPRA and its enforcement. As you are aware, Cal. Gov. Code § 6254(f) allows law enforcement agencies to disclose certain details contained in records of complaints to “the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951.” Id. Cal. Gov. Code § 13951(b) makes reference to crimes that constitute misdemeanors or felonies. Whether or not the incident you describe rose to the level of a misdemeanor, such that you could be considered the “victim” of a misdemeanor offense entitled to receive certain details via a public records request, requires interpretation of the criminal law and is outside the scope of our expertise at this hotline.
If you believe an agency is improperly withholding records, your recourse 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 police department 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.