Question
My CPRA request to review the 911 recording/transcript of a 2003 death was denied by the LAPD.
While the cause of death was determined to be a knife wound the coroner declined to rule on whether the incident was a suicide or homicide. Prior to my formal request, the police refused to discuss the case citing its ”ongoing nature.”
My formal request to review the 911 call for service was denied because it was not deemed contemporaneous. The denial was based on the 1993 Kuzar case.
It is my understanding that case recognizes that forcing agencies to search for old records could saddle them with a heavy financial burden. But in this case, it’s likely the 911 tape is easily accessible.
Also, if the case is in fact still ongoing, wouldn’t that constitute contemporaneous police activity? I’d like to sue the LAPD into releasing the information, but do I have any legal standing?
Answer
Although you didn’t specifically raise the issue of 911 tapes, per se, that might be a good place to start. We are not aware of a case that specifically says that tapes of 911 calls or similar calls to law enforcement must be released, but there are two cases that touch on the subject
In the first case, a city refused to release tapes of calls between the city’s police department and another law enforcement agency because the city considered portions of the tapes to be “embarrassing and irrelevant.” Fontana Police Dep’t v. Villegas-Banuelos, 74 Cal. App. 4th 1249, 1251 (1999).
The trial court ordered the city to release the tapes and the Court of Appeal affirmed an award of attorneys’ fees to the requester under the PRA. Among other things, the Court of Appeal said that the “Appellant was legally entitled to the unedited tapes which [the city] refused to produce until ordered to do so by the trial court.” Id. at 1252.
In the second case, decided two years after Fontana, the California Supreme Court held that the PRA did not require the release of certain “records … concern[ing] a citizen’s call to report a possible crime and the department’s response thereto.” Haynie v. Superior Court, 26 Cal. 4th 1061, 1064 (2001).
The Supreme Court held that the exemption in Government Code section 6254(f) for “records of investigations,” like the exemption in the same section for “records of complaints” to law enforcement, allows law enforcement to withhold the records completely. Law enforcement may have to release certain specific information in the records, but not the records themselves. Id.; see also Williams v. Superior Court, 5 Cal. 4th 337 (1993). Unfortunately, this precedent means that an agency could prevail with arguments that the recording/transcript you seek is exempt as an investigatory record.
As to the non-contemporaneous justification the agency has actually asserted, there may not be a cut-and-dried answer. Although the financial burden of compiling historical records was at issue in the Kusar case, the court also emphasized “the common law tradition of contemporaneous disclosure of individualized arrest information in order to prevent secret arrests. County of Los Angeles v. Superior Court, 18 Cal. App. 4th 588, 598 (1993).
In addition, there does not appear to be a great deal of guidance from subsequent authority as to exactly what constitutes “contemporaneous” activity. Your argument that an ongoing investigation means that the underlying activity is, by definition, contemporaneous might be persuasive, but a court might also decide that something that happened in 2003 is no longer contemporaneous, regardless of whether investigation continues.
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.
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