Question
I am working on a story about a man who was released from the local jail on probation and a month later is the suspect in a murder-suicide. I have obtained a copy of his pre-sentencing probation report, which labels him as a high risk to reoffend and notes that post-release monitoring would be important. In the wake of the murder-suicide, I reached out to the local probation chief to ask about whether he was in compliance with his probation requirements — i.e. whether he’d reported as required and kept in touch with his probation officers — and whether the office had had any contacts with him between his release from jail and the murder-suicide.
He said that under California Penal Code 1203.7, probation records are property of the court so he wasn’t sure what he could disclose. I said I wasn’t requesting the records themselves, just information about probation’s contacts with the suspect. He conferred with County Counsel and responded that he couldn’t release any information and we would need to petition the court for release of the records.
Is this accurate? Does this PC section actually prohibit Probation from releasing such information? And, if so, how does one go about petitioning the court for the release of a probation officer’s notes, etc.?
Answer
Unfortunately, California courts have not found a broad First Amendment right of access to probation reports, though they have found there is a more narrow First Amendment right of access to certain information found in those reports.People v. Connor, 115 Cal. App. 4th669 (2004). Penal Code§1203.05sets forth the conditions under which probation reports may be inspected after they are filed with the court. This statute provides:
Any report of the probation officer filed with the court, including any report arising out of a previous arrest of the person who is the subject of the report, may be inspected or copied only as follows:
(a) By any person, from the date judgment is pronounced or probation granted or, in the case of a report arising out of a previous arrest, from the date the subsequent accusatory pleading is filed, to and including 60 days from the date judgment is pronounced or probation is granted, whichever is earlier.
(b) By any person, at any time, by order of the court, upon filing a petition therefore by the person.
(c) By the general public, if the court upon its own motion orders that a report or reports shall be open or that the contents of the report or reports shall be disclosed.
(d) By any person authorized or required by law to inspector receive copies of the report.
(e) By the district attorney of the county at any time.
(f) By the subject of the report at any time.
The public is given unfettered access to the report for 60 days under subdivision (a).Connor, 115 Cal. App. 4th at 696-97. The court in Connor found that after the expiration of this time period, access to these reports is limited to non-personal information that sheds light on the court’s sentencing procedure, as opposed to detailed personal information about the defendant. Id.at 695. At the very least, you should be given non-personal information that is contained in the report.
The court may, in its discretion, also release portions of the report containing detailed personal information. Penal Code§1203.05(b);Connor, 115 Cal. App. 4th at 696. InConnor, the court found the statute “contemplates a procedure whereby the court may hold a hearing to determine whether the probation report contains personal information. It then balances the defendant’s interest in keeping this information confidential against any reasonable potential benefit to be gained by disclosing it and exercises discretion concerning whether to restrict or permit access. If it decides that restriction is appropriate, then the court may redact personal information from the report. Thereafter, the court should release the redacted report or the whole report if nothing is redacted.”Id.at 696. This decision goes on to state the defendant must receive notice of any petition to release a probation report to protect the defendant’s right to procedural due process, thereby giving the defendant “an opportunity to be heard concerning whether there is personal information in the report and whether it should be redacted.” Id.at 697.
In the situation you describe, it sounds like the defendant here may be deceased. Nonetheless, it seems that you should be able to petition the court for release the report in its entirety, and the court should, at the very least, provide you with the nonpersonal information in the report. In your petition to the court, you could argue that the public also has a strong interest in learning the detailed personal information contained in the report, given this murder-suicide involved someone who was on probation.
Unfortunately, we cannot give specific procedural advice through this service on how to file the petition with the court asking that the report be released. You might call the County Superior Court to see if they have any self-help guidance on how you would go about filing a petition to release the probation report.
Bryan Cave Leighton Paisner 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. No attorney-client relationship has been formed by way of this response.
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.