Are police informant contracts subject to the PRA?

Answer

As you seem to anticipate, the police department may very well come up with some exemption to justify nondisclosure of the contracts between the PD and the informants.  Under California’s Public Records Act, public records —which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

The exemption that seems most immediately relevant is the police investigatory records exemption, Gov’t Code § 6254(f), which exempts “any investigatory or security files compiled by any other state or local police agency.”  However, the record at issue must actually be part of the investigatory file, and a contract signed by the informant prior to the actual investigation itself might not fit this description, since it’s not something that is pertinent to the investigation itself.

The police department might also claim some other exemption – for example, the “catch-all” exemption, Government Code § 6255, which is a broad, yet undefined, exemption that provides that a record may be withheld if, on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.

In this situation, there may be a strong interest in nondisclosure of the actual names of the informants (since they are, after all, informants). However, the PD could, as the PRA requires, redact their names and any other identifying information, and disclose the remainder of the contracts. Gov’t Code § 6253(a) (“Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are
exempted by law.).

Of course, the first step here would be to submit your request, which we always recommend you do in writing, as this will compel a written response from the PD.

If you make a written request:

The agency must determine whether the requested records are disclosable within 10 days of your request, and “promptly notify” you, in writing, if it will make the records available, or specifically state the exemption it is claiming and how it applies to the requested records.  Gov’t Code § 6253(c). 
The agency must also state the estimated date and time when disclosable records will be made available.  Gov’t Code § 6253(c).
The PRA requires agencies assist you in making a focused and effective request that reasonably describes identifiable records.  Gov’t Code § 6253.1.

You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition website here.

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.