In Kinney v. Superior Court, 2022 Cal. App. LEXIS 293 (5th Dist. Apr. 7, 2022), the Court of Appeal determined that arrestee name information was not subject to public disclosure under Government Code section 6254(f)(1), because the disclosure mandate regarding arrests extended only to information pertaining to contemporaneous police activity and the information sought, which was almost a year old when the request was filed, did not qualify as contemporaneous.
Background
In February 2021, Alisha Kinney sent a request to the County of Kern (the “County”; real party in interest here), under the California Public Records Act (the “Act”) (Government Code section 6250 et seq.)[1] seeking the names of all persons arrested by the Kern County Sheriff’s Department for driving under the influence (“DUI”) from March 1, 2020 to April 1, 2020.
Nine days later, the County responded in writing to Kinney’s request. It provided a copy of a report reflecting the three DUI arrests made by the Sheriff’s Department during Kinney’s specified timeframe but redacted the names of the three arrestees. The report copy listed for each arrest a case number, date and time of arrest, the offense, the offense statute, and the case status. The offense, offense statute, and the case status were the same for each arrest: the offense was “Driving Under The Influence,” the offense statute was “23152(A) VC-M,”[2] and the case status was “CLEARED BY ARREST.” The County explained in its response to Kinney that the arrestees’ names had been redacted “as that information is protected and exempt from disclosure pursuant to California Government Code 6254(k), Cal. Const. Art. I [section] 1, California Penal Code [section] 13300 and California Evidence Code 1040.”
In March 2021, Kinney filed a verified petition for writ of mandate in Kern County Superior Court pursuant to Section 6258.[3] Her petition requested the issuance of a peremptory writ of mandate directing the County to provide the names of the three arrestees in compliance with the Act, or, alternatively, the issuance of an order to the County to show cause why the court should not issue such a writ. Her petition alleged she was entitled to the full names of the three arrestees under Section 6254(f)(1).
In April 2021, the County filed a demurrer to Kinney’s petition on the ground that it failed to “state facts sufficient to constitute a cause of action.” The demurrer argued, relying on the holding in County of Los Angeles v. Superior Court (Kusar),[4] that “the records to be disclosed under section 6254, subdivision (f)(1) and (2), are limited to current information and records of the matters described in the statute and which pertain to contemporaneous police activity.”[5] As Kinney’s February 2021 request sought information that was 11 to 12 months old, the County implicitly argued that the request was not a request for “contemporaneous” information and thus not subject to disclosure under Section 6254(f)(1).
The trial court sustained the County’s demurrer to Kinney’s petition without leave to amend. Kinney filed a verified petition for writ of mandate in the Fifth District Court of Appeal seeking extraordinary writ relief to compel the superior court to vacate its order sustaining the County’s demurrer to her petition and to enter a new order directing the County to provide the arrestees’ names.[6]
Discussion
Government Code section 6254 provides a description of public records which are not required to be disclosed by Chapter 3.5 (relating to Inspection of Public Records) of the Government Code. Section 6254(f)(1) requires state and local law enforcement agencies to make public the following information pertaining to arrests, unless disclosure would endanger the safety of a person involved in an investigation or the successful completion of an investigation: “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 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 being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.” (Section 6254(f)(1), italics added.)
The Fifth District Court of Appeal noted that although Section 6254(f)(1)’s, mandate had been interpreted to be “limited to current information and records of the matters described in the statute and which pertain to contemporaneous police activity[,]”[7] the Legislature had not defined “contemporaneous” as that term is used in the Kusar decision. The Court declared, however, that it did not need to discern the precise definition of “contemporaneous” as that term applied to Section 6254(f)(1)’s, disclosure mandate. The Court explained that the Kusar court’s holding and reasoning supported the conclusion that the arrest information at issue here—i.e., the three arrestees’ names—which was 11 to 12 months old when Kinney made her request to the County, should not be considered “contemporaneous.”
As the County had noted in its demurrer, the Kusar court, after reviewing Section 6254(f)’s, legislative history, concluded that the Legislature “demonstrated a legislative intent only to continue the common law tradition of contemporaneous disclosure of individualized arrest information in order to prevent secret arrests and to mandate the continued disclosure of customary and basic law enforcement information to the press.”[8] Kusar held that, “[b]ased on the legislative purpose and intent which we glean from the legislative history, we conclude that the records to be disclosed under section 6254, subdivision (f)(1) and (2), are limited to current information and records of the matters described in the statute and which pertain to contemporaneous police activity.” (Kusar, supra, at p. 601.)
The Fifth District explained here that it was guided by the Kusar court’s conclusion that the purpose of Section 6254(f)’s disclosure exceptions was only to prevent secret arrests and provide basic law enforcement information to the press. The Fifth District concluded that the arrest information Kinney sought here – which was 11 to 12 months old when Kinney requested it from the County – was not “contemporaneous” for Section 6254(f)(1) purposes when Kinney made her request to the County. The Court explained that after 11 to 12 months, it could “not see how releasing the arrestees’ names would serve the purpose of preventing clandestine police activity.” The Court added that it reached this conclusion aware of its constitutional obligation to “‘broadly construe[ ]’ the [Act] to the extent ‘it furthers the people’s right of access’ and to ‘narrowly construe[ ]’ the [Act] to the extent ‘it limits the right of access.’” (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 166; Cal. Const., art. I, section 3(b)(2).)
Citing Fredericks v. Superior Court,[9] Kinney argued that Kusar was no longer a valid authority because Section 6254, subdivision (f), was amended shortly after that case was decided. However, the Fifth District explained that Fredericks eliminated the “contemporaneous” limitation only as to the disclosure mandates of Section 6254, subdivision (f)(2), not to the mandates of subdivision (f)(1).
The Fifth District Court of Appeal concluded that the trial court could have correctly sustained the demurrer without leave to amend based on Kusar‘s holding that Section 6254(f)(1)’s, disclosure mandates are limited only to information pertaining to “contemporaneous” police activity, as that holding remained valid authority. The Court accordingly denied Kinney’s petition on this ground.
HOW THIS AFFECTS YOUR AGENCY
Agencies will observe that the Court of Appeal expressed that its conclusion that the arrest information sought here was not subject to disclosure “should be limited as much as possible to the facts of this case. Requests made under the Act for arrest information will often pit two very important rights against each other—the public’s right to know and the individual’s right to privacy.” The Court suggested that the Legislature “may wish to consider amending section 6254, subdivision (f), or otherwise provide clear guidance on when and how law enforcement agencies must make ‘contemporaneous’ information available to the public.” Such an amendment, would, of course, need to clearly define the term “contemporaneous.”
Agencies may also note that the Court denied Kinney’s petition solely on the ground pertaining to the “contemporaneous” issue and Section 6254(f)(1). The Court declared that it “[d]id not need to explore any other possible grounds,” including those asserted by the County in its demurrer when it declared “as that information is protected and exempt from disclosure pursuant to California Government Code 6254(k), Cal. Const. Art. I [section] 1, California Penal Code [section] 13300 and California Evidence Code 1040.”
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] Section 6250 provides in part: “…[T]he Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
[2] Vehicle Code section 23152 is the DUI statute.
[3] Government Code section 6258 provides in part: “Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter.”
[4] 18 Cal.App.4th 588 (2nd Dist. 1993).
[5] Id. at p. 601.
[6] “Pursuant to section 6259, subdivision (c), an order of the trial court under the Act, which either directs disclosure of records by a public official or supports the official’s refusal to disclose records, is immediately reviewable by petition to the appellate court for issuance of an extraordinary writ. …” (City of San Jose v. Superior Court, 74 Cal.App.4th 1008, 1016 (6th Dist. 1999).)
[7] Kusar, supra, 18 Cal.App.4th at p. 601.
[8] Id. at pp. 598.
[9] 233 Cal.App.4th 209, 216 (2015), disapproved of on other grounds by National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, 9 Cal.5th 488, 508 (2020), fn. 9.