Judge: Curtis A. Kin, Case: 21STCP04167, Date: 2023-07-21 Tentative Ruling
Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.
Case Number: 21STCP04167 Hearing Date: July 21, 2023 Dept: 82
Petitioner
American Civil Liberties Union of Southern California (“ACLU”) and Trisha
Shanklin petition for writ of mandate directing respondent Inglewood Police
Department to provide records sought in their four requests under the
California Public Records Act.
I. Factual Background
This petition for writ of mandate
involves four requests under the California Public Records
Act (“CPRA”).
On January 1, 2019, seeking
to obtain records made publicly available under Senate Bill 1421, ACLU requested
respondent Inglewood Police Department (“IPD”) to provide documents relating to
the investigation of peace officers who: (1) used force resulting in death or
great bodily injury from January 1, 1999 to the present; (2) were found to have
committed an act of dishonesty directly relating to the reporting,
investigation, or prosecution of a crime, or the reporting or investigation of
misconduct by another police officer, from January 1, 1999 to the present; and
(3) were found by any law enforcement agency or oversight agency to have
engaged in sexual assault involving a member of the public from January 1, 2009
to the present (“ACLU 2019 Request”). (JA 3-8.)
On or about January 10,
2019, petitioner Shanklin submitted a request to respondent for records
pertaining to the investigation and administrative discipline of the IPD
officers who killed her sister Kisha Michael on February 21, 2016 (“Shanklin
Request”). (SAC ¶ 6 & Ex. O.)
On January 4, 2022,
seeking to obtain records made publicly available under Senate Bill 16, ACLU
submitted a request to respondent for records from January 1, 2000 to the
present related to a sustained finding: (1) involving a complaint of
unreasonable or excessive force; (2) that an officer failed to intervene
against another officer using clearly unreasonable or excessive force; (3) that
a peace officer made an unlawful arrest; (4) that a peace officer made an
unlawful search; and (5) involving an incident involving prejudice or
discrimination based on a protected class (“ACLU SB16 Request”). (JA 20-22.)
On January 21, 2022, ACLU
submitted a request to respondent for records seeking the same records as they
sought in the ACLU 2019 Request but from January 1, 2019 to the date of the
letter (“ACLU 2022 Request”). (JA 15-18.)
Beginning on February 18, 2022, petitioners proceeded to
conduct written discovery. (JA 33 at ¶¶ 7, 9.) Finding the responses from
respondent lacking, petitioners filed a motion to compel further responses,
wherein petitioners identified investigatory and disciplinary documents they
contended were missing from respondents’ production. (JA 34-35 at ¶¶ 11-13.)
The Court (Hon. Mary H. Strobel) conducted an informal discovery conference.
(JA 36 at ¶ 15.) During the informal discovery conference and subsequent meet and
confer conferences, counsel for respondent represented that they would continue
to produce records that were responsive to the CPRA requests on a rolling
basis. (JA 36 at ¶ 15.) In supplemental discovery responses, respondent
indicated that it was not withholding any records, but respondent indicated
that it may withhold or redact records on statutory grounds. (JA 36 at ¶ 15.)
At the time of filing the
petition, respondent had not produced any additional documents that were
responsive to the CPRA requests. (JA 36 at ¶ 16.) Petitioners faulted
respondent for not identifying records that it was withholding, except for
incidents for which respondent indicated the existence of ongoing
investigations or actual or potential litigation. (JA 36 at ¶ 16.) Petitioners
also asserted that respondents did not identify the basis for withholding
documents. (JA 36 at ¶ 16.) Petitioners maintained that respondent did not produce
the investigatory or disciplinary records that it previously identified as
missing. (JA 36 at ¶ 16.)
II. Procedural History
On December 23, 2021, petitioner
ACLU filed the original Verified Complaint and Petition for Writ of Mandate.
On January 18, 2022, Judge
Strobel granted ACLU’s application for a preliminary injunction. On February 4,
2022, the Court entered an order enjoining respondent “from destroying records
potentially relevant or responsive to ACLU’s January 1, 2019 California Public
Records Act request pursuant to the Inglewood City Council Resolution adopted
December 14, 2021.”
On January 28, 2022, petitioners
filed the first Amended Verified Complaint and Petition for Writ of Mandate. On
March 17, 2022, respondent answered.
On September 8, 2022,
pursuant to a stipulation, petitioners filed the operative Second Amended
Verified Complaint and Petition for Writ of Mandate. (“SAC”).
On March 18, 2022, the Court held a trial setting
conference. The hearing was ultimately continued to July 20, 2023 while the
parties were conducting discovery.
III. Standard
of Review
Pursuant to the CPRA
(Gov. Code § 7921.000, et seq.),[1]
individual citizens have a right to access government records. In enacting the
CPRA, the California Legislature declared that “access to information
concerning the conduct of the people's business is a fundamental and necessary
right of every person in this state.” (Gov. Code, § 7921.000; see also Cal.
Const. Art. I, Sec. 3(b); County of Los Angeles v. Superior Court (2012)
211 Cal.App.4th 57, 63.)
“[E]very person has a
right to inspect any public record” of a state or local agency subject to statutory
exemptions. (Gov. Code § 7922.530(a); see also Gov. Code § 7920.510(h)
[definition of “local agency” includes agent of a city].) The California Constitution
mandates that the CPRA be “broadly construed,” while any statute “that limits
the right of access” must be “narrowly construed.” (See Cal. Const. Art.
I, Sec. 3(b)(2); see also Nat’l Lawyers Guild v. City of Hayward (2020)
9 Cal.5th 488, 507.) The CPRA “does not allow limitations on access to a public
record based upon the purpose for which the record is being requested, if the
record is otherwise subject to disclosure.” (Gov. Code § 7921.300.)
Petitioner bears the
burden of proof and persuasion in a mandate proceeding brought under CCP § 1085.
(California Correctional Peace Officers Assn. v. State Personnel Bd. (1995)
10 Cal.4th 1133, 1154.) “To establish an agency has a duty to disclose under
[the CPRA], the petitioner must show that: (1) the record ‘qualif[ies] as [a]
‘public record[ ]’ …; and (2) the record is ‘in the possession of the agency.’”
(Anderson-Barker v Sup.Ct. (2019) 31 Cal.App.5th 528, 538.) “Whether a
record falls within the statutory definition of a ‘public record’ involves a
‘distinct inquiry’ from whether the agency is in possession of that record….
The duty to disclose applies only when the petitioner has satisfied both
elements.” (Id. at 539.)
CPRA exemptions must be
narrowly construed, and the agency bears the burden of showing that a specific
exemption applies. (Sacramento County Employees’ Retirement System v.
Superior Court (2013) 195 Cal.App.4th 440, 453.) A public agency also has
the burden to demonstrate that it properly withheld records on the grounds they
are non-responsive to a CPRA request or do not constitute public records. (ACLU
of Northern Cal. v. Sup.Ct. (2011) 202 Cal.App.4th 55, 83-86.) ““Because
the agency has full knowledge of the contents of the withheld records and the
requester has only the agency's affidavits and descriptions of the documents,
its affidavits must be specific enough to give the requester ‘a meaningful
opportunity to contest’ the withholding of the documents.” (Id. at 83.)
IV. Analysis
In 2018, the California Legislature enacted SB 1421,
which amended the CPRA to require disclosure of records related to the
investigation of police uses of force and misconduct. (Becerra v. Superior
Court (2020) 44 Cal.App.5th 897, 916.) In 2020, the California Legislature
enacted SB 16, which amended the CPRA to require disclosure of records related
to sustained findings involving complaints of unreasonable or excessive force,
that an officer failed to intervene when another officer was using excessive
force, that an officer made an unlawful arrest or search, and that an officer
engaged in conduct involving prejudice or discrimination against a protected
class. (California Bill Analysis, S.B. 16 Sen., 8/30/2021.)
After the enactment of SB 1421 and SB 16, Penal Code
§ 832.7(b)(1) now provides in relevant part:
(b)(1) Notwithstanding subdivision (a), subdivision
(f) of Section 6254 of the Government Code, or any other law, the following
peace officer or custodial officer personnel records and records maintained by
a state or local agency shall not be confidential and shall be made available
for public inspection pursuant to the California Public Records Act (Chapter
3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government
Code):
(A) A record relating to the report, investigation,
or findings of any of the following:
…
(ii) An incident involving the use of force against
a person by a peace officer or custodial officer that resulted in death or in
great bodily injury.
(iii) A sustained finding involving a complaint that
alleges unreasonable or excessive force.
(iv) A sustained finding that an officer failed to
intervene against another officer using force that is clearly unreasonable or
excessive.
(B)(i) Any record relating to an incident in which a
sustained finding was made by any law enforcement agency or oversight agency
that a peace officer or custodial officer engaged in sexual assault involving a
member of the public.
(ii) As used in this subparagraph, “sexual assault”
means the commission or attempted initiation of a sexual act with a member of
the public by means of force, threat, coercion, extortion, offer of leniency or
other official favor, or under the color of authority. For purposes of this
definition, the propositioning for or commission of any sexual act while on
duty is considered a sexual assault.
(iii) As used in this subparagraph, “member of the
public” means any person not employed by the officer’s employing agency and
includes any participant in a cadet, explorer, or other youth program
affiliated with the agency.
(C) Any
record relating to an incident in which a sustained finding was made by any law
enforcement agency or oversight agency involving dishonesty by a peace officer
or custodial officer directly relating to the reporting, investigation, or
prosecution of a crime, or directly relating to the reporting of, or
investigation of misconduct by, another peace officer or custodial officer,
including, but not limited to, any false statements, filing false reports,
destruction, falsifying, or concealing of evidence, or perjury.
(D) Any record relating to an incident in which a
sustained finding was made by any law enforcement agency or oversight agency
that a peace officer or custodial officer engaged in conduct including, but not
limited to, verbal statements, writings, online posts, recordings, and
gestures, involving prejudice or discrimination against a person on the basis
of race, religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, genetic information, marital status, sex,
gender, gender identity, gender expression, age, sexual orientation, or
military and veteran status.
(E) Any record relating to an incident in which a sustained
finding was made by any law enforcement agency or oversight agency that the
peace officer made an unlawful arrest or conducted an unlawful search.
Petitioners meet their initial burden on a CPRA
petition. Petitioners demonstrate that the request records are public records
under the CFRA. With respect to the ACLU 2019 request, ACLU seeks the type of investigatory
records that are now available to the public under Penal Code § 832.7,
subdivisions (b)(1)(A)(ii) (use of force resulting in death or great bodily
injury), (b)(1)(B) (sexual assault) and (b)(1)(C) (acts of dishonesty). (See
JA 5-6.) With respect to the Shanklin Request, Shanklin seeks investigatory
records related to the use of force which resulted in death, as encompassed in
subdivision (b)(1)(A)(ii). (See SAC ¶ 6 & Ex. O.)
With respect to the ACLU SB16 Request, ACLU seeks the type of investigatory
records set forth in subdivisions (b)(1)(A)(iii) (sustained finding of
unreasonable or excessive force), (b)(1)(A)(iv) (sustained finding that officer
failed to intervene against another officer using excessive force), (b)(1)(D)
(sustained finding that officer engaged in biased conduct), and (b)(1)(E)
(sustained finding that officer engaged in unlawful arrest or search). (See JA
21.) With respect to the ACLU 2022 Request, ACLU seeks the same type of records
available to the public that it sought in the ACLU 2019 Request, just for a
different period of time. (See JA 16-17.) Respondent does not dispute
that the documents sought by petitioners are encompassed within Penal Code §
832.7.
Petitioners demonstrates that the requested records
are in the possession of respondent. Through the deposition of respondent’s
PMK, petitioners ascertained that investigatory and disciplinary records are
held in several locations, including Internal Affairs (JA 60 [24:17-25:19;
28:25-31:12]), the Detective Bureau (JA 60 [69:18-70:7]), and the digital
recordkeeping program IA PRO. (JA 60 [25:23-26:22, 34:5-23, 38:25-40:14, 64:2-4]).
Respondent does not dispute that it is in possession of the records. Indeed,
respondent agrees to produce all responsive records in its possession, custody,
or control. (Opp. at 5:17-18; JA 222.)
For
the foregoing reasons, it is undisputed that petitioners are entitled to
documents that are responsive to their CPRA requests. The issue presented in
this petition is whether respondent should be compelled to conduct the detailed
search protocol set forth in Attachment A to the proposed order.
“Unless a records request is overbroad or unduly
burdensome, agencies are obliged to disclose all records they can locate ‘with
reasonable effort.’ [Citation.] Reasonable efforts do not require that agencies
undertake extraordinarily extensive or intrusive searches, however. [Citations.]
In general, the scope of an agency's search for public records ‘need only be
reasonably calculated to locate responsive documents.’ [Citations.]” (City
of San Jose v. Superior Court (2017) 2 Cal.5th 608, 627.)
Respondent maintains that its search was adequate.
Respondent’s PMK averred that he looked in Blue Teams and IAPRO, two Internal
Affairs electronic databases; Versaterm, the electronic database for the
Detective bureau; as well as the hard copies in the file room, IA Department,
and the Detective bureau. (JA 200-01 at ¶¶ 3-6.) Respondent’s PMK also inquired
from senior IPD personnel who recalled certain incidents and could assist in
searching locations. (JA 201 ¶ 11.)
Nevertheless,
petitioners demonstrate that respondent has not been sufficiently diligent to
obtain the requested records.
In
April 2022, petitioner’s PMK testified that he did not know of any documents
that were withheld. (JA 60 [222:14-16].) Nevertheless, in June 2023, respondent
produced 139 pages of disciplinary records for the officers involved in the
killing of Kisha Michael. (JA 272 at ¶ 6.) Moreover, in the Opening Brief,
petitioners identified documents that they contend were missing from
production, including disciplinary records for ten incidents for which
respondent produced some records, documents referenced in produced records, and
routinely created documents in the disciplinary process. (JA 35 at ¶ 12; see
also JA 272 at ¶ 7.) In the opposition, respondent does not address the
documents which petitioners claim are missing. Further, petitioner’s PMK could
not testify to any search for SB 16 materials or to any search for officers who
resigned before IPD concluded its investigation, which was added to Penal Code
§ 832.7(b)(1)(3). (JA 60 [15:9-15; 145:13-146:8; 146:9-149:3; 154:5-9;
180:9-22].)
Based
on the foregoing, petitioners have demonstrated that respondent’s search for
the records encompassed in the four CPRA requests was not reasonable. While
respondent maintains that documents are to be produced on a rolling basis,
petitioner’s CPRA requests have been pending since January 1, 2019. The
proposed order provides a methodical search protocol and, by requiring
respondent to produce documents referenced in the table of contents and other
documents, appears tailored to ensure that petitioners receive all responsive
documents in respondent’s possession, custody, or control.
Moreover,
petitioners are entitled to records relating to an allegation of unreasonable
force, even if the sustained findings were on grounds other than the complaint
of excessive force. Penal Code § 832.7(b)(1)(A)(iii) provides for the
production of records relating to the investigation of a “sustained finding involving
a complaint that alleges unreasonable or excessive force.” This is in contrast
to the provisions involving sexual assault and dishonesty, where the sustained
finding must have involved sexual assault or dishonesty. (See Pen. Code
§ 832.7(b)(1)(B) [“[a]ny record relating to an incident in which a sustained
finding was made by any law enforcement agency or oversight agency that a peace
officer or custodial officer engaged in sexual assault involving a member of
the public”], (b)(1)(C) [“[a]ny record relating to an incident in which a
sustained finding was made by any law enforcement agency or oversight agency
involving dishonesty by a peace officer or custodial officer].)
Respondent
disputes petitioners’ interpretation, asserting that the Legislature delegated
the interpretation of the word “involves” to each law enforcement agency.
However, respondent does not cite any authority for this assertion. Contentions
unsupported by citation of authority will be disregarded. (Niko v. Foreman
(2006) 144 Cal.App.4th 344, 368; Valov v. Department of Motor Vehicles
(2005) 132 Cal.App.4th 1113, 1132.) Based on the plain language of Penal Code §
832.7(b)(1)(A)(iii), respondent is required to provide documents for sustained
findings where the underlying complaint was unreasonable or excessive force,
even if the complaint for unreasonable or excessive force was not ultimately
sustained.
Respondent
argues that it should not be under any set time constraints because it has an
obligation to determine whether an incident rises to the level of misconduct
and to redact records, and because it is a smaller law enforcement agency.
However, Penal Code § 832.7(b)(11) provides for provision of records subject to
disclosure “at the earliest possible time and no later than 45 days from the
date of a request for their disclosure.” The 45-day timeline was added through
SB 16, meaning that the ACLU SB16 Request and the ACLU 2022 Request are clearly
subject to the 45-day production timeline. Even for petitioners’ pre-SB-16 requests,
where no time for provision was set forth, the new statute is indicative of the
time that the Legislature has determined to be appropriate for law enforcement
agencies to handle their responsibilities to redact and review to prevent
improper disclosure. Based on the first CPRA request dated January 1, 2019,
petitioner has been waiting far longer than the 45 days now mandated. Accordingly,
the Court finds a need to grant the petition to provide finality to the CPRA
requests and the instant petition.
For
the foregoing reasons, respondent has set forth no valid grounds upon which the
petition should be denied.
V. Conclusion
The
petition is GRANTED. The Court signs the proposed order, electronically
received May 4, 2023.