In response to a request for our thoughts regarding the attached demand (click here to view the demand) from the ACLU regarding information involving officer involved shootings, please be advised that how agencies respond is not only a matter of law, but a matter of policy and up to individual jurisdictions. It is important to note that the California Public Records Act (CPRA) does not require that public entities answer questions or create records in order to respond.
Government Code 6253 (b) states: “Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” (Emphasis added.)
There is no duty or obligation to create a record. It appears that many of the 21 questions posed by the ACLU will not be found in records which already exist and which would be responsive. For example, question #5 asks for the “name, badge number or unique ID, age, years on the force, gender and race/ethnicity of each officer who fired on the subject.” Although a police report involving the use of deadly force may contain the name and badge number of the officer(s) “who fired on the subject,” it doesn’t appear likely that it will contain the remainder of the information requested.
Additionally, there is a request for “any internal investigation into the shooting” which, obviously, is not subject to the CPRA if it is a personnel investigation of the actions of an officer. Also, a demand is made for results of any review done by the district attorney, the Department of Justice, or the FBI which, in our opinion, should be presented to those entities, not the law enforcement agency since those entities generated, and are in possession of those reports.
Again, under the CPRA, a public entity is only required to provide access to existing records that contain some or all of the information sought. Police investigation reports might contain any or all of the information requested, but there may also be exceptions to disclosure from those reports. As each agency reviews each item in the ACLU letter, it is important to remember that what is requested are “any records reflecting any or all of the following. . .” followed by the list of items they want. (Emphasis added.)
HOW THIS AFFECTS YOUR AGENCY
The impact might vary, agency to agency. Therefore, it is imperative that each agency seek advice and guidance from the attorney who is normally involved in reviewing such demands, and that is usually the city attorney.
Replying to CPRA demands is defined by law in many cases and not subject to debate, however, many demands are subject to interpretation. The list of questions posed by the ACLU are, in our opinion, just such demands which require interpretation but that decision must be made by the agency’s appropriate legal advisor.
Hopefully, this is of assistance but, as always, if you wish to discuss it in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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.