Sheriff’s office refuses to release crime report unless I am a victim

Answer

Unfortunately, under California’s Public Records Act (“PRA”), police “investigatory reports” are exempt from disclosure.  Gov’t Code § 6254(f) (exempting “any investigatory or security files compiled by any other state or local police agency”).  It sounds like the crime reports you are seeking access to fall within this category, so it is likely that the police agency does not, indeed, have to disclose them to you.

As the employee you spoke with noted, victims of the crime, as well as certain other interested parties (e.g., insurance companies) are entitled to certain information from police reports. Id.  And unfortunately, once a record is classified as an “investigatory record” that is exempt from disclosure, it remains exempt forever, even after the case is closed, and whether or not anybody was prosecuted for the alleged crime.

That said, police are required to release a limited amount of information to the public related to arrests and requests for assistance, unless the disclosure of such information “would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation.”  Id.

This information includes:

(1) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color
of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.

(2) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident,
and a general description of any injuries, property, or weapons involved.

(3) Subject to the restrictions of Section 841.5 of the Penal Code and this subdivision, the current address of every individual arrested by the agency and the current address of the victim of a crime, where the requester declares under penalty of perjury
that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 ….Cal. Gov’t Code § 6254(f)(1)-(3).

Given that you may be seeking information about crimes that are 16 years old, you should be aware that there is a temporal limitation on the release of information related to older investigations.  The California Court of Appeal has held that law enforcement agencies are only required to disclose, under 6254(f)(1) and (f)(2), information related to “contemporaneous police activity.” Cnty. of Los Angeles v. Superior Court, 18 Cal. App. 4th 588, 599 (1993).

Although the court does not outline any particular test on what the outer time limits are for the release of such information, it does suggest that where the arrestee is in custody, or, if not in custody, the arrestee is still under investigation and/or may be charged (or already has been charged) with a crime, that would constitute “contemporaneous police activity.” Id. at 595-96.

It’s possible that cold or closed cases would not be considered “contemporaneous” under this standard.  However, the court in that case only discussed information that is required to be disclosed (assuming it is “contemporaneous”) under 6254(f)(1) and (2), and not the information required to be disclosed under the “researcher” provision found in (f)(3).

As such, if your request is for research purposes, you may want to make that clear so that the police understand that your request is per Gov’t Code § 6254(f)(3).

Also, if charges were formally brought against the suspect or suspects in connection with the incident you are seeking records for – i.e., if the district attorney filed formal charges in the Superior Court or a federal district court – you should be able to access those court records, which may include details about the crime and/or portions of the police report.

Court records are subject to the First Amendment right of access, and can be withheld from the public only if a very high standard is met.  You might also try submitting a request to the district attorney under the PRA for any records related to the case.  While the same investigatory records exemption that applies to the police would also apply to the DA, any charging documents or other documents the district attorney filed with the court would be subject to disclosure. Weaver v. Superior Court, 224 Cal. App. 4th 746, 751 (2014) (“Because they were publicly filed, the charging documents [plaintiff] seeks are not investigatory files exempt from disclosure under the CPRA.”).

Lastly, I am not aware of any law that would require the employee at the sheriff’s office to disclose her last name. The PRA applies only to “writing[s].” Govt. Code § 6252(e). And although “writing” is defined broadly, the employee’s last name would probably not be considered a public record. Even if the PRA were applicable, the employee’s last name might fall under an exemption from disclosure.

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.