Question
I am seeking the file of a criminal investigation of a polluting company carried out by the CA Dept. of Toxic Substances Control. The case is closed, having been adjudicated by a no plea in 1994. The department will not release the file, saying that there is an exemption for disclosure of DTSC investigations. I have been unable to find any such exemption, and wondering if CFAC may be aware of case law, or other restrictions, that would support DTSC’s position.
Answer
There is a statute addressing disclosure of records maintained by the DTSC, but it does not appear to contain any exemptions beyond those embodied in the PRA itself. See Health & Safety Code sect. 25151.5.
However, the PRA contains an exemption for “investigations conducted by .. any state or local police agency, or any investigatory … files complied by any other state or local agency for correctional, law enforcement, or licensing purposes ….” Gov’t Code sec. 6254(f). This would probably include a criminal investigation by a state agency like the DTSC.
Unfortunately, the fact the investigation is concluded does not mean the department has to release its investigatory file. Under the federal Freedom of Information Act, once the investigation is concluded, the exemption for investigatory files terminates and the records must be released upon request unless there is some other justification for withholding. Not so in California; in 1993, the California Supreme Court ruled that the investigatory exemption from the state PRA continues forever, even long after the investigation is over. Williams v. Superior Court, 5 Cal. 4th 227 (1993). The department can voluntarily to disclose the records, if you can convince it to do so, but cannot be compelled to release the records.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.