Are CPRA exemptions discretionary?

Answer

Exemptions under the Public Records Act are not discretionary as much as they are permissive, as indicated in the wording of the Act’s provision that permits an agency to grant greater access to records than is otherwise “prescribed by the minimum standards set forth in this chapter.” Gov’t Code § 6253(e). Section 6253(e) states that agencies “may adopt requirements for itself that allow for faster, more efficient, or greater access to records . . .” (emph. added).

Thus, the Act permits an agency to produce records even if it such production would not be required. Given this, there may not be anything about the blanket policy denying access to police reports (which are explicitly exempted under 6254(f)) that is contrary to the Public Records Act. The fact that the City of Redondo Beach has chosen to adopt a more liberal access policy is great, but unfortunately it probably does not help remedy other policies that are less than open.

The Act does require law enforcement agencies to disclose:
“[t]he full name, current address, 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.” Cal. Gov’t Code section 6254(f)(1).
There may be temporal limits, however, to the release of such information. The California Court of Appeal has held that law enforcement agencies are only required to disclose information related to “contemporaneous police activity.” County of Los Angeles v. Sup. Ct., 18 Cal.App.4th 588, 599 (1993).

Although the court does not outline any particular test on what the outer time limits are for the release of such information, it does suggest that where the arrestee is in custody, or, if not in custody, the arrestee is still under investigation and/or may be charged (or already has been charged) with a crime, that would constitute “contemporaneous police activity.” Id. at 595-96.

If you are seeking records other than investigatory files from the police, then presumptively those records, too, should be disclosed unless some exemption applies (and the agency should not apply its blanket policy pertaining to investigatory records to such requests).

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.