Question
Message I’m trying to obtain records of supervision for a high-risk parolee who is accused of murder. I sent a public records request and received a rejection letter that cites dozens of government codes in its defense. But I wonder if there’s a way to fight that rejection. After all, that information has become public in several high-profile cases such as Phillip Garrido and John Albert Gardner. I have the letter of rejection if you would like to see it, and I hope to get some help in getting valuable information to determine if parole agents were doing their jobs.
Answer
California law provides some fairly broad protections for many different kinds of law enforcement records. As you might expect (or have encountered first-hand), it is common for agencies to reject requests for law enforcement records out of hand, even if the requests include some records that are subject to disclosure under the Public Records Act.
The Garrido case you mentioned is a good example of how this often works. In that case, a number of media entities sought various records related to Garrido’s parole from the California Department of Corrections and Rehabilitation (CDCR) and records related to the investigation of the Office of the Inspector General (OIG) of the parole subsequent to his arrest in 2009. Both the CDCR and OIG refused to disclose most of the records requested.
The media entities sued, and the Sacramento Superior Court ordered the agencies to prepare a list of the responsive documents together with a justification as to why each was exempt from disclosure. Both the CDCR and OIG requested relief from that order, which the Court of Appeal granted for the OIG but not for the CDCR.
The trial court ultimately concluded that many of the records sought were exempt from disclosure under a variety of statutory authority. The court said some of the records were exempt as “Criminal Offender Record Information” under Gov’t Code Section 6254(k), Penal Code Sections 11075(a), 11076, 11081, and 11105, and the case Younger v. Berkeley City Council, 45 Cal. App. 3d 825, 832-833 (1975). The court said that information was properly redacted from many other parole records under the same authority (it is not clear from the court’s order precisely what information was redacted).
The court also found a mental health examination to be exempt in its entirety and that information reflecting “confidential medical information” could be redacted from other records based on HIPAA and the California Confidentiality of Medical Information Act. The court also said that parole records from the state of Nevada were exempt under Evidence Code Section 1040 (the so-called “official information” privilege).
The court said that the Case Management Review (which was evidently an appraisal of the performance of parole officers) was exempt as a peace officer personnel record under Penal Code Section 832.7(a). The court did, however, order that a “draft Executive Review” (evidently an internal summary of the review of the parole supervision) be disclosed.
Without knowing more about the particular records at issue, it is difficult to evaluate the merit of the trial court’s decisions. California’s statutes on “criminal offender record information” are complicated and unclear in many respects and have not been interpreted by the courts extensively.
Meanwhile, the Court of Appeal considered the OIG’s request that it not be ordered to disclose the investigative materials underlying the “special public report” it had issued regarding CDCR’s parole supervision of Garrido. (Under California law, the OIG oversees CDCR and has the power to investigate CDCR activities. Penal Code Section 6131.
The statute calls for the OIG to prepare two different reports — one confidential and the other public. Id.) The Court of Appeal held that the OIG had complete discretion as to whether the underlying investigative materials would be disclosed (meaning that it could simply decide not to release them without meeting any particular standard or otherwise justifying the decision). Office of the Inspector General v. Superior Court, 189 Cal. App. 4th 695, 707 (2010). The Court of Appeal went on to find that the materials were exempt from disclosure as law enforcement investigatory records under Gov’t Code Section 6254(f). Id. at 708-10.
With respect to your request, there may well be a basis to push back on the denial of access of many of the records you requested. Among other things — as you noted — to the extent any of the information contained in the records has already been disclosed in one form or another, the rationale for withholding those records may be significantly undermined. In addition, to the extent the agency essentially spewed a string of authority but didn’t really explain how that authority justified keeping particular records from the public, it might be useful to push back for a more meaningful explanation of how the cited authority justifies withholding the records (or why redaction of the records is not a viable alternative).
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.
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.