Judge James C. Chalfant, Case 21STCP01632 2022-09-13 Tentative Ruling

Petitioner Shanda Luckett (“Luckett”) seeks a writ of mandate directing Respondents City of Los Angeles (“City”), Michel Moore (“Moore”) in his official capacity as Chief of Police for the Los Angeles Police Department (“LAPD”), and Lieutenant Marla Ciuffetelli (“Ciuffetelli”) in her official capacity, to release public records responsive to her request under the California Public Records Act (“CPRA”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Luckett filed the Petition on May 20, 2021 alleging causes of action for mandamus and declaratory relief for violation of the CPRA in pertinent part as follows.

On December 18, 2020, Luckett was driving a rented U-Haul truck with her 68 year-old aunt when LAPD officers conducted a felony traffic stop. The officers alleged that the truck’s license plate number was never issued, so the truck had to have been stolen. The LAPD officers searched the truck and released Luckett after about 25 minutes without issuing a citation or arresting anyone. Luckett complained to LAPD Internal Affairs (“Internal Affairs”) about the incident on December 21, 2021.

On January 12, 2021, Luckett sent LAPD a CPRA Request for five classes of documents related to the incident, including (1) information about or documents that described the incident; (2) audio recordings about the incident and copies of Luckett’s own statements and complaints about it to LAPD; (3) records about LAPD’s use of license plate users; (4) copies of any Pitchess motions the City received in the past five years for officers who were working in Reseda Patrol Division of LAPD in December 2020; and (5) records of LAPD’s use of body worn cameras and dash cameras and copies of corresponding video records from the incident.

On January 21, 2021, the City requested a 14-day extension to respond. On February 11, 2021, the City responded with some information responsive to the first category of requested records, but none responsive to the other four requests. The response also indicated that the City misread the first request and thought it only asked for information, not documents.

As to the second request, the City and LAPD have acknowledged Luckett’s complaints about the incident. LAPD must have these records but the City did not produce them in response to the request.

As to the third and fifth requests, the City said it was still searching for responsive records and would respond when possible. The City has not offered an estimated time for production of responsive records. The City also responded to the fifth request that it “does not answer questions so much as provide copies of records,” which shows that it misread the request and thought it only asked for information, not documents.

As to the fourth request, the City alleged that any responsive records were exempt from

Luckett seeks (1) an in camera review of all documents responsive to the CPRA requests to determine if the cited exemptions apply, if the City has performed an adequate search, if it has provided all responsive records, and if it should produce the documents to Luckett; (2) an order compelling Respondents to search for the documents described in the request, make an accurate account of responsive records, and provide them to Luckett; (3) declaratory relief that the City has a duty to promptly provide responsive records and/or provide members of the public with the estimated date and time when the records will be made available; (4) an injunction ordering the City to hereafter promptly provide responsive records or an estimated date and time when the records responsive to any CPRA request will be made available; and (5) attorney’s fees and costs.

On May 25, 2021, Luckett served Respondents City, Moore, and Ciuffetelli with the Petition and Summons.

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085. A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....” CCP §1085.

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance. Id. at 584 (internal citations omitted). Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

Where a duty is not ministerial and the agency has discretion, mandamus relief is unavailable unless the petitioner can demonstrate an abuse of that discretion. Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner. American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California, (2005) 126 Cal.App.4th 247, 261. It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles, (1973) 33 Cal.App.3d 1, 8), and to correct an abuse of discretion actually exercised. Manjares v. Newton, (1966) 64 Cal.2d 365, 370-71. In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom. Id. at 371. An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.” Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, 106. A writ will lie where the agency’s discretion can be exercised only in one way. Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty or as an abuse of discretion.

The CPRA was enacted in 1968 to safeguard the accountability of government to the public. San Gabriel Tribune v. Superior Court, (1983) 143 Cal.App. 762, 771-72. Government Code[1] section 6250 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.” The CPRA’s purpose is to increase freedom of information by giving the public access to information in possession of public agencies. CBS. Inc. v. Block, (1986) 42 Cal. 3d 646, 651. The CPRA was intended to safeguard the accountability of government to the public, and it makes public access to governmental records a fundamental right of citizenship. Wilson v. Superior Court, (1996) 51 Cal.App.4th 1136, 1141. This requires maximum disclosure of the conduct of government operations. California State University Fresno Assn., Inc. v. Superior Court, (“California State University”) (2001) 90 Cal.App.4th 810, 823. In 2004, the voters endorsed the CPRA by approving Prop 59, which amended the state Constitution to declare that “the writings of public agencies…shall be open to public scrutiny.” Cal. Const. Art. I, §3(b).

The CPRA makes clear that “every person” has a right to inspect any public record. §6253(a). The inspection may be for any purpose; the requester’s motivation is irrelevant. §6257.5. The term “public record” is broadly defined to include “any writing containing information relating to the conduct of the people’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics. §6252(e). The definition of “state agency” excludes agencies described in Articles IV and VI of the state constitution, which describe the legislative and judicial branches, except the State Bar of California. §6252(f).

Upon receiving a request for a copy of public records, an agency must determine within ten days whether the request seeks public records in the possession of the agency that are subject to disclosure, but that deadline may be extended up to 14 days for unusual circumstances. §6253(c). Nothing in the CPRA “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.” §6253(d).

Even significant expense to the agency will not excuse an agency from conducting a thorough search for responsive records unless it constitutes an undue burden. See, e.g., CBS Broadcasting Inc. v. Superior Ct., (2001) 91 Cal. App. 4th 892, 909 ($43,000 cost to agency to compile responsive public records was not valid reason to deny CPRA request). “Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches, however. In general, the scope of an agency’s search for public records ‘need only be reasonably calculated to locate responsive documents.’” City of San Jose v. Superior Court, (2017) 2 Cal.5th 608, 627 (citation omitted). The “CPRA does not prescribe specific methods of searching for those documents and agencies may develop their own internal policies for conducting searches. Some general principles have emerged, however. Once an agency receives a CPRA request, it must “‘communicate the scope of the information requested to the custodians of its records,’ although it need not use the precise language of the request...” Ibid. (citation omitted).

The right to inspect is subject to certain exemptions, which are narrowly construed. California State University, 90 Cal.App.4th at 831. The exemptions are found in sections 6254 and 6255. In pertinent part, public records exempt from disclosure include (1) personnel, medical, or similar files, the discovery of which would constitute an unwarranted invasion of personal privacy (§6254(c)), and (2) records for which disclosure “is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege” (§6254(k)).

Additionally, if a state or local agency discloses a public record that is otherwise exempt to a member of the public, this disclosure shall constitute a waiver of the applicable exemptions. §6254.5. However, this does not apply to disclosures (1) made through legal proceedings or as otherwise required by law (§6254.5(b)); (2) within the scope of disclosure of a statute that limits disclosure of specified writings to certain purposes (§6254.5(c)); or (3) made to a governmental agency that agrees to treat the disclosed material as confidential (§6254.5(e)). Furthermore, exempt records do not lose their protected status if they are disclosed to the district attorney. §6265; Fagan v. Superior Court (2003) 111 Cal.App.4th 607, 617.

The burden of demonstrating that exemptions apply lies with the governmental entity. §6255.

If the agency determines that the requested records are subject to disclosure, it must state in the determination “the estimated date and time when the records will be made available.” Ibid. There is no deadline expressed in number of days for producing the records. Rather, the agency “shall make the records promptly available.” §6253(b).

If the agency determines that the requested records are not subject to disclosure, the agency promptly must notify the person making the request and provide the reasons for its determination. Ibid. The agency must justify withholding a responsive record by demonstrating it is exempt or that on the facts of the case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. §6255(a). The determination that the request is denied must be made in writing. §6255(b).

A CPRA claim to compel compliance with a public records request may proceed through either mandamus or declaratory relief. §§6258, 6259. A petition for traditional mandamus is appropriate in actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” CCP §1085. Because the petitioner may proceed through either mandamus or declaratory relief, the trial court independently decides whether disclosure is required. See City of San Jose v. Superior Court, (“City of San Jose”) (1999) 74 Cal.App.4th 1008, 1018 (appellate court independently reviews trial court CPRA decision). No administrative record is required, and the parties must submit admissible evidence.

Section 6259(d) provides for reasonable attorney’s fees should the plaintiff prevail in a CPRA case. An award of attorney fees pursuant to this subdivision is mandatory if the plaintiff prevails. Filarsky v. Superior Court, (2002) 28 Cal.4th 419, 427. To be deemed the prevailing party, a plaintiff must show that the CPRA lawsuit was the motivating factor behind the production of documents. Motorola Communication & Electronics, Inc. v. Agency of General Services, (1997) 55 Cal.App.4th 1340, 1345.

The attorney’s fees provision of the CPRA should be interpreted in light of the overall remedial purpose of the CPRA to broaden access to public records. CYAC, supra, 220 Cal.App.4th at 1447. To this end, the purpose of the attorney’s fees provision is to provide protections and incentives for members of the public to seek judicial enforcement of the right to inspect public records subject to disclosure. National Conference of Black Mayors v. Chico Community Publishing, Inc., (2018) 25 Cal.App.5th 570, 581.

The district attorney is the public prosecutor, except as otherwise provided by law, who will within discretion initiate and conduct on behalf of the people all prosecutions for public offenses. §26500. As such, the district attorney shall draw all indictments and informations. §26502. As a matter of due process, the prosecutor is required to file a complaint in each criminal case to invoke the court's jurisdiction. City of San Diego v. Municipal Court (1980) 102 Cal.App.3d 775, 778. However, with the consent of the district attorney of the county, the city attorney of any general law city or chartered city within the county may prosecute any misdemeanor. §41803.5(a).

Following arraignment on criminal charges, as part of its criminal discovery obligations, the prosecuting agency must turn over material evidence including all (1) relevant real evidence seized or obtained as a part of the investigation; (2) exculpatory evidence; and (3) relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case. Penal Code §1054.1(d)-(f). In turn, however, no attorney shall disclose or permit to be disclosed the personal identifying information of a victim or witness except to assist in the preparation of a defendant’s case if that disclosure is required for that preparation. Penal Code §1054.2(a).

No law enforcement officer or employee of a law enforcement agency shall disclose to any arrested person, or to any person who may be a defendant in a criminal action, the address or telephone number of any person who is a victim or witness in the alleged offense. Penal Code §841.5(a). However, this shall not impair or interfere with the right of a defendant to obtain information necessary for the preparation of his or her defense through the discovery process. Penal Code §841.5(b). This also shall not impair or interfere with the right of a defendant’s attorney to obtain the address or telephone number of any person who is a victim of, or a witness to, the alleged offense. Penal Code §841.5(c).

Criminal information is confidential and public agencies have a duty to preserve its confidentiality and avoid unwarranted public intrusion into matters personal and sensitive in nature. Westbrook v. County of Los Angeles, 27 Cal. App. 4th 157, 164; Craig v. Municipal Court (1979) 100 Cal. App. 3d 69, 76. “Criminal offender record information” means “records and data compiled by criminal justice agencies for purposes of identifying criminal offenders and of maintaining as to each such offender a summary of arrests, pretrial proceedings, the nature and disposition of criminal charges, sentencing, incarceration, rehabilitation, and release.” Penal Code §11075(a). Commonly known as “rap sheets”, such information shall be restricted to that which is recorded as the result of an arrest, detention, or other initiation of criminal proceedings or of any consequent proceedings related thereto. Penal Code §11075(b). Criminal offender record information shall be disseminated “only to such agencies as are, or may subsequently be, authorized access to such records by statute.” Penal Code §11076. The Attorney General is responsible for the security of criminal offender information and shall establish regulations to ensure that this information is disseminated only in situations required for an agency’s official function. Penal Code §11077.

The Attorney General has promulgated such a regulation: “Criminal offender record information may be released, on a need-to-know basis, only to persons or agencies authorized by court order, statute, or decisional law to receive criminal offender record information.” 11 CCR §703.

Penal Code sections 13302 to 13304 state that a person who knowingly furnishes “a record or information obtained from a record” to an unauthorized person, or receives it when unauthorized, is guilty of a misdemeanor.[2] Penal Code section 13301(a) defines a “record” as “the master local summary criminal history information.” Penal Code section 13300(a)(1) defines a “local summary criminal history information” as “the master record of information compiled by any local criminal justice agency … pertaining to the identification and criminal history of any person, such as name, date of birth, physical description, dates of arrests,¿arresting agencies and booking numbers, charges, dispositions, and similar data about such person.” Penal Code section 13305 lists exceptions to this misdemeanor, including (a) dissemination of statistical or research information obtained from a record without disclosing the subject’s name; (b) dissemination of information obtained from a record for the purpose of assisting in the apprehension of a person wanted in connection with the commission of a crime; and (c) inclusion of information from a record in (1) a transcript or record of a judicial or administrative proceeding or (2) any other public record when the inclusion of the information in the public record is authorized by a court, statute, or decisional law.

The district attorney and the courts, in consultation with any local law enforcement agencies that may desire to provide information or other assistance, must establish a mutually agreeable procedure to protect confidential personal information regarding any witness or victim contained in a police report, arrest report, or investigative report if one of these reports is submitted to a court by a prosecutor in support of a criminal complaint, indictment, or information, or by a prosecutor or law enforcement officer in support of a search warrant or an arrest warrant. Penal Code §964(a).

A peace officer’s “personnel record” is defined as any file maintained under an officer’s name by his or her employing agency and containing records relating to any of the following: “(a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. (b) Medical history. (c) Election of employee benefits. (d) Employee advancement, appraisal, or discipline. (e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties. (f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.” Penal Code §832.8.

Police personnel records are customarily maintained in either a general personnel file or a separate file containing complaints and reports or findings relating to complaints maintained for five years. Penal Code §832.5. Despite the literal language of Penal Code section 832.8 in referring to a personnel “file,” the content of the document, not its location, is determinative. Otherwise, a clearly public document such as a newspaper article could be deemed confidential if placed in an otherwise protected personnel file. Therefore, only the types of information enumerated in section 832.8 constitute protected peace officer personnel records. Commission on Peace Officer Standards and Training v. Superior Court, (“POST”) (2007) 42 Cal.4th 278, 29091. The category of “personal data” in section 832.8 includes the type of information normally supplied by an employee to his or her employer, and does not include information, such as salary arising from the officer’s employment with the police department. International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, (2007) 42 Cal.4th 319, 34243.

Penal Code section 832.7(a) provides that peace officer personnel records, and information obtained from these records, are privileged and confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Evidence Code Section 1043. This confidential by statutory designation makes the records exempt from disclosure under the statutory provisions governing public records -- i.e., the CPRA. International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, (2007) 42 Cal.4th 319, 341 (“Because peace officer personnel records and information obtained from such records are made confidential by Penal Code section 832.7, they are exempt from disclosure under Government Code section 6254, subdivision (k).”).

Information that is part of a peace officer’s personnel file is protected from discovery pursuant to Evidence Code section 1043. The exclusive means for obtaining these materials is through a Pitchess motion pursuant to section 1043. County of Los Angeles v. Superior Court, (1990) 219 Cal. App. 3d 1605, 1611. For a criminal defendant or other person to obtain information contained in a personnel file, he or she must show good cause (made by affidavit) for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records. Evid. Code §1043(b)(3). Good cause may be established by declaration made on information and belief and personal knowledge is not required. See City of Santa Cruz v. Municipal Court, (1989) 9 Cal. 3d 74, 89. “Only documentation of past officer misconduct which is similar to the misconduct alleged by defendant in the pending litigation is relevant and therefore subject to discovery.” California Highway Patrol v. Superior Court, (2000) 84 Cal. App. 4th 1010, 1021.

In determining the relevance of the information in a personnel file, the court shall examine it and exclude (1) in any criminal proceeding, the conclusions of any officer investigating a complaint filed pursuant to Penal Code section 832.5; and (2) facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit. Evid. Code §1045(b). To help determine relevance, in any case where the party seeking disclosure is alleging excessive force by a peace officer or custodial officer, the Pitchess motion shall include a copy of the police report setting forth the circumstances under which the party was stopped and arrested, or a copy of the crime report setting forth the circumstances under which the conduct is alleged to have occurred within a jail facility. Evid. Code §1046.

Court records are defined as (1) all filed papers and documents in the case folder, but if no case folder is created by the court, all filed papers and documents that would have been in the case folder if one had been created; (2) administrative records filed in an action or proceeding, depositions, transcripts, including preliminary hearing transcripts, and recordings of electronically recorded proceedings filed, lodged, or maintained in connection with the case, unless disposed of earlier in the case pursuant to law; and (3) other records listed under section 68152(g). §68151.

Under the CRC, a “record” is defined as all or a portion of any document, paper, exhibit, transcript, or other thing filed or lodged with the court, by electronic means or otherwise, unless a specific rule states otherwise. Pet. RJN Ex. A (CRC 2.550(b)(1)). A “court record” is defined as any document, paper, or exhibit filed in an action or proceeding, any order or judgment of the court, and any item listed in section 68151(a) that is maintained by the court in the ordinary course of the judicial process. CRC 2.502(b).

The CRC acknowledges the benefits that electronic records and remote access provide, but they also attempt to limit the potential for unjustified intrusions into the privacy of individuals involved in litigation that can occur. Advisory Com. Com., CRC Rules 2.500 and 2.503. CRC 2.503(c) therefore prohibits public remote access to records in specific proceedings, and CRC 2.503(f) requires that the court grant access to an electronic record only when the requesting party identifies the record by the number of the case, the caption of the case, or the name of a party.

Notwithstanding, the presiding judge of the court, or a judge assigned by the presiding judge, may exercise discretion to permit remote access by the public to all or a portion of the public court records in an individual criminal case if (1) the number of requests for access to documents in the case is extraordinarily high and (2) responding to those requests would significantly burden the operations of the court. CRC 2.503(e). An individualized determination must be made in each case in which such remote access is provided. CRC 2.503(e). The court should, to the extent feasible, redact specific identifying information from records to which it allows remote access. CRC 2.503(e)(2).

Unless confidentiality is required by law, court records are presumed to be open. Pet. RJN Ex. A (CRC 2.550(c)). Unless otherwise provided by the CRC or ordered by the court, court records may only be inspected by the public in the office of the clerk and released to authorized court personnel or an attorney of record for use in a court facility. CRC 2.400(a).

A record must not be filed under seal without a court order, and the court cannot permit a party to file a record under seal based solely on the agreement or stipulation of the parties. RJN Ex. B (CRC 2.551(a)). The court may order that a record be filed under seal only if it expressly finds facts that establish that (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the interest. Pet. RJN Ex. A (CRC 2.550(d)).

The CRC’s sealing rules do not apply to records that are required to be kept confidential by law or to discovery motions and records filed or lodged in connection with discovery motions or proceedings. RJN Ex. A (CRC 2.550(a)(2)-(3)). However, the rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings. Pet. RJN Ex. A (CRC 2.550(a)(3)).

Court calendars must exclude from calendars, indexes, and registers of actions any social security numbers, financial information, arrest warrant information, search warrant information, victim information, witness information, ethnicity, age, gender, government-issued identification card numbers, driver’s license numbers, and date of birth. CRC 2.507(c).

On December 18, 2020, 43-year-old Luckett was driving a rented U-Haul truck with her 68-year-old aunt when multiple LAPD units conducted a felony traffic stop. Luckett Decl., ¶3. One of the officers ordered Luckett to lay on the ground at gunpoint and handcuffed her as the officers searched the truck. Luckett Decl., ¶3. Luckett later learned that the officers suspected that the truck was stolen because its plate did not register in the DMV system. Luckett Decl., ¶3. The officers released Luckett after about 25 minutes without issuing a citation or an arrest. Luckett Decl., ¶3.

Luckett filed a complaint with LAPD’s Internal Affairs, but that unit was not helpful and did not provide her with any information. Luckett Decl., ¶3. On January 12, 2021, she filed a CPRA request for (1) information about or documents that described the incident; (2) audio recordings about the incident and copies of Luckett’s own statements and complaints to LAPD; (3) records about LAPD’s use of license plate users; (4) copies of any Pitchess motions and attachments that the City received in the past five years for officers working in LAPD’s Reseda Patrol Division in December 2020; and (5) records of LAPD’s use of body worn cameras and dash cameras and copies of corresponding video records from the Incident. Luckett Decl., ¶4; Schlueter Decl., ¶4, Ex. 1. The United States Postal Service tracking system shows that LAPD received the request on January 15, 2021. Luckett Decl., ¶4.

On January 27, 2021, Luckett received a statement from LAPD that it required a 14-day extension to respond and asking for her email address. She provided her email address on February 4, 2021. Luckett Decl., ¶¶ 7-8; Schlueter Decl., ¶25, Exs. 2, 3.

On February 11, 2021, LAPD responded with some information responsive to the first request, but none that was responsive to the other four requests. Luckett Decl., ¶9; Schlueter Decl., ¶¶ 5, 10, Ex. 4. The letter claimed that further information responsive to the first and second requests would require a subpoena or court order. Luckett Decl., ¶10; Schlueter Decl., ¶9, Ex. 4. The letter promised documents responsive to the third and fifth requests but did not specify when that would occur. Luckett Decl., ¶10; Schlueter Decl., ¶9, Ex. 4.

The letter also claimed that Pitchess motions responsive to the fourth request are exempt from disclosure. Luckett Decl., ¶10; Schlueter Decl., ¶9, Ex. 4. LAPD invoked (1) section 6254(c)’s exemption for personnel or similar files whose disclosure would constitute an unwarranted invasion of personal privacy; and (2) section 6254(k)’s exemption for files whose disclosure would violate federal or state law. Schlueter Decl., ¶9, Ex. 4. The laws at issue included Penal Code section 832.7, which protects peace officer personnel records and information except from discovery pursuant to Evidence Code sections 1043 and 1045. Schlueter Decl., ¶9, Ex. 4.

After Luckett filed the Petition on May 20, 2021, LAPD began to provide responsive records for all five requests. Luckett Decl., ¶15; Schlueter Decl., ¶¶ 7-9.

On June 24, 2021, LAPD sent Luckett a letter with an attached log of correspondence that it allegedly sent to her email address between February and May 2021. Luckett Decl., ¶11; Schlueter Decl., ¶25, Ex. 5. Luckett’s email address was not functioning at the time, and she did not receive any of this correspondence. Luckett Decl., ¶12; Schlueter Decl., ¶5. LAPD claimed that it had used its online portal for CPRA requests, Next Request, to send these emails to Luckett after she provided her email address. Schlueter Decl., ¶25, Ex. 5. LAPD never explained the Next Request portal to Luckett or that she had an account. Luckett Decl., ¶13. LAPD’s log of correspondence included a May 7, 2021 email in which LAPD stated that it would not provide any records responsive to the second, fourth, and fifth requests without subpoena or court order. Luckett Decl., ¶14; Schlueter Decl., ¶25, Ex. 5.

On August 25, 2021, Deputy City Attorney Jonathan Bislig (“Bislig”) sent a declaration by LAPD Management Assistant Wei Yan Chow (“Chow”) explaining the methods LAPD used to find responsive records to all but the fourth request and the results. Schlueter Decl., ¶15, Ex. 6. Bislig explained that the declaration was a statement of facts and did not reflect the City’s legal position as to the records. Schlueter Decl., ¶15, Ex. 6.

On September 17, 2021, the City provided a summary of its legal position as to the records. Schlueter Decl., ¶16, Ex. 7. As to the fourth category, the City had identified 125 Pitchess motions for officers in the identified police station for the past five years. Schlueter Decl., ¶16, Ex. 7. Because LAPD only maintains physical copies and any records older than three years were kept in a separate location, the City requested that Luckett narrow the request. Schlueter Decl., ¶16, Ex. 7.

On November 19 and December 2, 2021, the City produced 96 responsive Pitchess motions with their attachments and a promise to provide more motions as LAPD provided them. Schlueter Decl., ¶17, Exs. 8-9. Most of the motion attachments were police reports related to the filing party’s case. Schlueter Decl., ¶18.

On December 23, 2021, Deputy City Attorney Bislig explained via email that he had produced everything LAPD had sent to him and he did not realize the attachments included non-responsive documents and records that were exempt despite the fact that they were filed with the court. Schlueter Decl., ¶19, Ex. 10. Police reports and criminal rap sheets, for example, are exempt under sections 6254(c) and 6254(k) as well as Penal Code sections 13300 et seq. and 11105 et seq. While there was no rectifying this mistake for the Pitchess motions he had produced, the production of any future motions – including the 29 attached to that email – would not include any police reports and criminal rap sheets attached to the Pitchess motion, or emails and face sheets that were not filed with the Pitchess motions. Schlueter Decl., ¶19, Ex. 10.

None of the 29 Pitchess motions provided by the City on December 23, 2021 had been filed under seal. Schlueter Decl., ¶23. Of the 29 motions, 15 concerned allegations of officer dishonesty, three concerned allegations of excessive force, five alleged both, and one alleged the discharge of a firearm at a person. Schlueter Decl., ¶23, Ex. 10.

Bislig sent six more Pitchess motions on January 3, 2022, 37 on January 24, 2022, 134 on January 28, 2022, and 47 on February 15, 2022. Schlueter Decl., ¶¶ 20, 25, Exs. 11-14. The January 3, 2022 email reiterated that any future production of Pitchess motions would not include attached police reports and criminal rap sheets or documents not filed with the motion. Schlueter Decl., ¶25, Ex. 11. Luckett’s attorney has not yet reviewed these 224 motions. Schlueter Decl., ¶24.

On April 5, 2022, the court ordered the parties to brief whether the City should provide the attachments to the Pitchess motions. Schlueter Decl., ¶22. After Bislig emailed Luckett’s counsel about a briefing schedule, Luckett’s counsel replied that the last outstanding issue is whether the parties can stipulate that police reports filed with the Pitchess motions were not sealed, with the exception of a case where the filing attorney wanted to keep certain facts private. Schlueter Decl., ¶25, Ex. 15. Luckett’s counsel asserted that, if the City would not agree to the stipulation, he would request judicial notice of the court’s sealing procedures for filing documents under seal and provide files as exemplars. Schlueter Decl., ¶25, Ex. 15.

The police reports generated by LAPD in a criminal investigation include (1) criminal citations, (2) narrative summaries of criminal investigations authored by LAPD officers, (3) statements of the suspects, witnesses, and victims, (4) photographs of persons or physical evidence, and (5) copies of documentary evidence. Bislig Decl., ¶22; Gonzales Decl., ¶3; Tu Decl., ¶3. The contents of police reports include (1) details of law enforcement tactics and operations, (2) opinions and conclusions of LAPD officers, (3) identifying information of suspects, witnesses, and victims, (4) suspect criminal history information, (5) suspect warrant information, and (6) inventory of personal property. Bislig Decl., ¶23; Gonzales Decl., ¶4.

LAPD submits police reports to the prosecuting agency for criminal filing consideration and the agency files criminal charges arising from the information therein. Bislig Decl., ¶¶ 24-25; Gonzales Decl., ¶5. During the criminal proceeding, the prosecuting agency turns over these reports to the defendant as part of its criminal discovery obligation. Bislig Decl., ¶26. The defendant then may file a Pitchess motion for additional discovery in the personnel files of peace officers references in the police reports and the police report attached to the Pitchess motion enables the court to determine the materiality of the referenced peace officers to the proceeding. Bislig Decl., ¶27.

LAPD submits its police reports to the prosecuting agency with the understanding that it will treat them as confidential and for use only in the applicable criminal proceeding. Gonzales Decl., ¶6. LAPD does not disclose the reports unless the law, a subpoena, or a court order requires it to do so. Gonzales Decl., ¶6. LAPD has never intentionally disclosed a police report in response to a CPRA request and instead invokes CPRA exemptions under sections 6254(f), 6254(k). Tu Decl., ¶¶ 4-5. Public disclosure of police reports would reveal LAPD tactics and operations, alert suspects who would not otherwise know that they were suspects, discourage witnesses and victims from cooperating with LAPD, endanger the safety and welfare of cooperating witnesses and victims, and jeopardize successful prosecution of crimes. Gonzales Decl., ¶8.

The City received Luckett’s February 4, 2021 letter with her email address on February 16, 2021. Bislig Decl., ¶5, Ex. 4. On March 15 and April 12, 2021, LAPD sent Luckett emails that stated that it was still searching for responsive records. Bislig Decl., ¶6, Exs. 5-6. On May 5, 2021, LAPD requested clarification as to what Luckett meant when she asked that it provide her with invoices for the body and dash cameras and video. Bislig Decl., ¶6, Ex. 7.

On May 7, 2021, LAPD sent responses to Luckett’s requests. Bislig Decl., ¶6, Ex. 8. As to the fourth request, LAPD claimed that section 6254(f) exempted the dispatch recordings, Pitchess motions, and video evidence as investigative records. Bislig Decl., ¶6, Ex. 8. LAPD would not provide any records responsive to the request without subpoena or court order. Bislig Decl., ¶6, Ex. 8.

On September 30, 2021, the City produced via email various documents responsive to the CPRA requests. Bislig Decl., ¶10, Ex. 11. This included a list of Pitchess motions and a list of officers assigned to Air Support Division and West Valley Division as of December 2020. Bislig Decl., ¶10, Ex. 11.

On November 16, 2021, the City agreed to disclose records responsive to the fourth request. Bislig Decl., ¶11. The City produced these documents in batches because the search required the City to search existing databases with multiple queries, cross-reference disparate information in those databases, and procure physical files from off-site locations. Bislig Decl., ¶12.

The City did not realize until after its December 2, 2021 second batch of responsive Pitchess motions that it had disclosed non-responsive records, police reports, and criminal rap sheets in error. Bislig Decl., ¶15. Deputy City Attorney Bislig explained in an email for the third production on December 23, 2021 that the City would not provide these attachments for any other Pitchess motions because such files were exempt under sections 6254(c) and 6254(k) as well as Penal Code sections 13300 et seq. and 11105 et seq. Bislig Decl., ¶16, Ex. 14. Bislig also stated that the City intends to recover any inadvertently disclosed exempt police reports. Bislig Decl., ¶16a.

After accounting for duplicates, the City has produced 225 Pitchess motions and has inadvertently disclosed police reports or rap sheets for 35 of the motions. Bislig Decl., ¶18.

Throughout February and March 2022, the City attempted to confirm that Luckett was satisfied with the production and was ready to discuss settlement and attorney’s fees. Bislig Decl., ¶19, Exs. 19-22. On March 24, 2022, Luckett responded that the matter was not resolved because the City failed to provide police reports and attachments for most of the Pitchess motions. Bislig Decl., ¶19, Ex. 23. Luckett refused to concede that the City could withhold these attachments because they were not filed in court under seal, and she demanded the records as filed and served in those cases. Bislig Decl., ¶19, Ex. 23. Luckett had not previously objected to the City withholding those reports. Bislig Decl., ¶18.

Also on March 24, 2022, the City sent Luckett an email that reiterated that any withheld files were either non-responsive or exempt under sections 6254(c) and 6254(k) as well as Penal Code sections 13300 et seq. and 11105 et seq. Bislig Decl., ¶19, Ex. 24. The City does not waive CPRA exemptions for a police report or criminal rap sheet when a third party attaches it to a Pitchess motion filed with the court. Bislig Decl., ¶19, Ex. 24. The City therefore maintained its position against disclosure of those attachments. Bislig Decl., ¶19, Ex. 24.

On April 5, 2022, the parties agreed that the applicability of exemptions to these police reports was the only outstanding issue in this case. Bislig Decl., ¶20.

Petitioner Luckett seeks disclosure of the police reports that were attached to 190 of the Pitchess motions produced by the City in response to her 4^th request. As she states: “The sole issue is the police reports attached to Pitchess motions and whether those police reports, filed with the court, and served on the City, are exempt from disclosure under the California Public Record Act.” Pet. Op. Br. at 8-9.

Luckett notes that police reports must be attached to the Pitchess motion in excessive force cases under Evidence Code section 1046. While attachment of a police report is not required for other Pitchess motions, they often are attached because they are essential to a claim that an officer has either fabricated a report or made an arrest without probable cause. Pet. Op. Br. at 8-9.

Luckett contends that she is entitled to any police report that had been attached to a Pitchess motion that was filed with the court and served on the Respondents, because the records have become public. If they previously were confidential, they are not now. She cautions that she has not asked the City to cull police reports from investigatory files or databases and only seeks records that were attached to Pitchess motions that were publicly filed in court and served on LAPD. She argues that these records do not revert to a confidential status just because they records were served on LAPD. Pet. Op. Br. at 9.

The City claims that the police reports attached to the Pitchess motions are exempt from disclosure pursuant to section 6254(f) (law enforcement investigatory record exemption) and section 6254(k)(incorporating all statutory privileges, including the Pitchess statutes).[4] As Luckett argues (Pet. Op. Br. at 9), the City bears the burden of proving that an exemption applies. See County of Santa Clara v. Superior Court, (2009) 170 Cal.App.4^th 1301, 1321.

To commence a criminal proceeding, a law enforcement agency must submit sufficient evidence of a crime to the prosecuting agency, including the police report. See Penal Code §§ 959, 1096. The criminal defendant is entitled to discovery from the prosecution during the criminal case, both under the Penal Code sections 1054 et seq. and the doctrine of Brady v. Maryland.

To obtain additional discovery, a defendant can file a motion for certain information in a peace officer’s personnel files. See Penal Code §832.7(a); Evid. Code §§ 1043-47. The “Pitchess statutes, which codify the California Supreme Court’s decision in Pitchess v. Superior Court (1974) 11 Cal. 3d 531, creates a procedural vehicle for a criminal defendant to discover evidence in a law enforcement officer’s personnel file that is deemed relevant to defend against a criminal charge upon a sufficient showing of good cause. Police reports are attached to these discovery motions to aid in the determination of whether there is good cause to warrant disclosure. Id; see Evid. Code §1046 (Pitchess motion shall include police report in excessive force cases).

In City of Hemet v. Superior Court, (1995) 37 Cal.App.4th 1411, the California Supreme Court explained the relationship between the Pitchess statutes and the CPRA. Section 6254(k) protects records from disclosure where that disclosure is “exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege. The records protected by the Pitchess statutes are records protected by section 6254(k) because the Legislature “codified the privileges and procedures” surrounding Pitchess motions. Id., at 1422-23. The Pitchess procedure more zealously protects the subject of peace officer personnel records than does the CPRA and protecting these records from disclosure in civil or criminal proceedings would be of little point if they could be obtained under the CPRA. Id. at 1425, 1427 (citation omitted). The court also noted that the specific protection for personnel records in section 6254(c) of the CPRA would rarely benefit the officer because that provision only protects personnel records where disclosure is an “unwarranted invasion of personal privacy” and the public interest in police officer misconduct would make disclosure ipso facto warranted. Id. at 1428. Finally, the court noted that the Pitchess privilege is held by both the agency and the officer, and either can refuse to disclose the information. Id. at 1430. See also Copley Press, Inc. v. Sup. Ct., (“Copley Press”) (2006) 39 Cal. 4th 1272, 1279, 1286 (records from individual officers’ disciplinary records are protected under Penal Code section 832.7(a) as personnel records, as well as “records maintained by any state or local agency pursuant to [s]ection 832.5.”).

Penal Code section 832.8(d) defines the records subject to Pitchess protection as records related to "advancement, appraisal, or discipline" in a protected personnel file, covering only those records generated in connection with an administrative appraisal or discipline. Pasadena Police Officers Assn. v. Superior Court, (“Pasadena Police Officers”) (2015) 240 Cal.App.4th 268, 291 (citing Long Beach Police Officers Assn. v. City of Long Beach, (2014) 59 Cal. 4th 59, 71). Protections for police personnel records do not include records generated as part of a criminal investigation. Id. at 290.

Luckett correctly notes (Pet. Op. Br. at 10) that police reports are records of investigation, not personnel records protected by Penal Code section 832.7 and Evidence Code section 1054. It is not enough that a record may touch upon a personnel issue. Only information falling into one of Penal Code section 832.8's specifically listed categories is a personnel record subject to the Pitchess procedure, and other information that may be physically located in the personnel file is not a "personnel record" for Pitchess purposes. Zanone v. City of Whittier, (2008), 162 Cal. App. 4th 174, 188 (citing Commission on Peace Officer Standards & Training v. Superior Court, (“POST”) (2007) 42 Cal. 4th 278, 293). Police reports are not considered personnel records even if they are used in personnel decisions. Pasadena Police Officers, supra, 240 Cal. App. 4th at 292.

Section 6254(f) exempts from disclosure both “[r]ecords of… investigations conducted by any state or local police agency…” and investigatory files complied by any…local agency for correctional, law enforcement, or licensing purposes….”

“[The CPRA] recognizes that certain records should not, for reasons of privacy, safety, and efficiency of governmental operations, be made public” – including law enforcement records of investigation as well as criminal history records. Haynie v. Superior Court, (“Haynie”) (2001) 26 Cal. 4th 1061, 1064; Westbrook v. County of Los Angeles (1994) 27 Cal. App. 4th 157. 165; see also §6250 (reciting legislative intent to balance individual privacy rights with the right to public records).

The exemption for investigatory files applies only when the prospect of enforcement is concrete and definite. Haynie, supra, 26 Cal.4th at 1068-69 (citing Uribe v. Howie, (1971) 19 Cal.App.3d 194, 213 and Williams v. Superior Court, (1993) 5 Cal.4^th 337, 356).

In contrast, records of investigation are exempt on their face, whether or not they are included in an investigatory file. Id. at 1069-70. Records of investigation are exempt for an indefinite period. They do not lose their exempt status based on the prospect of enforcement because law enforcement officers may not know whether a crime has been committed when they undertake an investigation, and the results may be inconclusive. For example, a fire may be suspicious but found to be accidental after investigation and even routine investigations such as a traffic stop are protected. Id. at 1070-71. The records of investigation exemption “protects witnesses, victims, and investigators, secures evidence and investigative techniques, encourages candor, recognizes the rawness and sensitivity of information in criminal investigations, and in effect makes such investigations possible.” Dixon v. Superior Court, (2009) 170 Cal.App.4th 1271, 1276.

It is undisputed that police reports fall squarely within section 6254(f)’s exemption for law enforcement records of investigation. The police reports requested by Lockett were created by LAPD for law enforcement purposes as part of the investigation of a suspect’s alleged criminal activity and submitted to a prosecuting agency as evidence for criminal filing consideration. Bislig Decl., ¶¶ 21-27; Gonzalez Decl., ¶¶ 3-5. As such, they are exempt from disclosure under section 6254(f).

Although criminal investigation records are typically exempt under section 6254(f), there are exceptions. As Luckett contends (Pet. Op. Br. at 11), court records generally are public documents, and their public nature cannot be withdrawn once they have entered the public sphere.

Both the First Amendment to the United States Constitution and article I, section 2(a), California Constitution provide broad access rights to judicial hearings and records. Copley Press, supra, 6 Cal. App. 4th at 111. The United States Supreme Court has held that "disclosure of truthful information contained in the public official records of a judicial proceeding are not an invasion of privacy because the information was part of the public record. [] 'A trial is a public event. What transpires in the court room is public property.'" Cox Broadcasting Corp v. Cohn, (1975) 420 U.S. 469, 494-95. Pet. Op. Br. at 12.

Once evidence is presented in an open court, the public's interest in access to that evidence is particularly clear. See Oklahoma Publishing Co. v. District Court, (1977) 430 U.S. 308, 310 ("the First and Fourteenth Amendments will not permit a state court to prohibit the publication of widely disseminated information obtained at court proceedings which were in fact open to the public"). Public access to court records include access to evidence and pleadings. See United States v. Graham, (2d Cir. 2001) 257 F.3d 143, 153-54 (common law right of access to judicial records extends to audio and video tapes not admitted into evidence because the tapes were material to court's decision to detain defendants pending trial); Smith v. U.S. Dist. Court Officers, (7th Cir. 2000) 203 F.3d 440, 442 (common law right of access extends to audiotapes that are original part of record of criminal proceeding). See Pet. Op. Br. at 12.

CRC 2.550(b)(1) defines a "record" as, unless the context indicates otherwise, all or a portion of any document, paper, exhibit, transcript, or other thing filed or lodged with the court, by electronic means or otherwise. A “court record” is defined as any document, paper, or exhibit filed in an action or proceeding, any order or judgment of the court, and any item listed in section 68151(a) that is maintained by the court in the ordinary course of the judicial process. CRC 2.502(b). "Unless confidentiality is required by law, court records are presumed to be open." CRC 2.550(c).

“Although the California Public Records Act...does not apply to court records (see § 6252, subd. (a)), there can be no doubt that court records are public records, available to the public in general, including news reporters, unless a specific exception makes specific records nonpublic.” Estate of Hearst, (1977) 67 Cal. App. 3d 777, 782 (news organizations were entitled to access to probate records). The public has a legitimate interest in access to public records. “If public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism.” Id. at 784.

The City argues that Luckett does not have access to the police reports at issue simply because they are court records. Opp. at 13-17. Court records are the property of the court. Copley Press, supra, 6 Cal.App.4th at 112; Pantos v. Superior Court, (“Pantos”) (1984) 151 Cal.App.3d 258, 262. The CPRA does not apply to the judicial branch. §6252(f)(1). Instead, public access to court records is governed by long-standing common law and constitutional principles. Estate of Heart, (1997) 67 Cal. App. 3d 777, 782. Courts have the inherent power to control their own records and public inspection may be denied “upon a showing that revelation would tend to undermine individual security, personal liberty, or private property, or…injure the public or the public good Copley Press, supra, 6 Cal.App.4th at 112. Opp. at 13.

While court records are presumptively open to public inspection, the common law right of access is not absolute and nondisclosure may be appropriate for compelling, countervailing reasons. Saunders v. Superior Court, (“Saunders”) (2017) 12 Cal.App.5th Supp. 1, 24 (inmate’s text and cell phone records obtained through search warrant were not public records subject to disclosure). The presumptive right of access may be rebutted where the balance of interests implicated by disclosure outweigh public access. Copley Press, supra, 6 Cal.App.4th at 18; Pantos, supra, 151 Cal.App.3d at 264-65 (disclosure to the public of juror questionnaires completed to determine qualification for jury service “may negatively impact the prospective juror's willingness to serve and thus interfere with efficient court administration. … Public interest in withholding such questionnaires outweighs the public's interest in disclosure.”). Opp. at 15-16.

Luckett correctly rebuts any suggestion by the City that police reports attached to Pitchess motions should or could be sealed. Her counsel could find no example in the Pitchess motions provided, including the 96 motions for which the City provided the police report, where a police report was lodged with the court under seal. Schlueter Decl., ¶¶ 17, 19, 20, 23, 24. While a party seeking Pitchess materials must attach a copy of the police report to the Pitchess motion in an excessive force case, there is no requirement that the police report be sealed. See Evid. Code §1046. If the Legislature wanted the police report to be filed under seal, it would have said so. Reply at 5.

The City argues that the CRC restricts access to unsealed court records. Access to paper records is limited to courthouse access. CRC 2.400. Access to electronic court records is allowed, but remote access to electronic records of proceedings that involve particularly sensitive information -- e.g., criminal, mental health, or guardianship proceedings -- is prohibited. CRC 2.503(c). A person must physically visit a courthouse and use a public terminal to electronically access criminal and similar types of records. Ibid. CRC 2.507 balances the public’s right to electronic access to criminal court records with the personal privacy of victims, witnesses, and parties. All of Us or None–Riverside Chapter v. Hamrick, (“All of Us”) (2021) 64 Cal.App.5th 751, 777. The legislative history of CRC 2.503 shows that the drafters wanted to protect against the exploitation of personal information for commercial or other purposes unrelated to the operations of the courts at the expense of privacy rights of individuals. Advisory Com. CRC 2.503. By limiting access, the CRC “seek[s] to protect legitimate privacy concerns” and “attempt to limit the potential for unjustified intrusions into the privacy of individuals involved in litigation.” Id; see also CRC 2.507(c) (personal information of parties, victims, and witnesses, as well as warrant information in criminal matters “must be excluded from a court’s electronic calendar, index, and register.”). Opp. at 15.

The City concludes that, if Luckett made her request for Pitchess motions directly to the court, the court could summarily deny the request if she could not identify specific cases or if she was requesting remote access. Opp. at 15.

Moreover, there generally are no privacy issues in court-filed documents. In Weaver v. Superior Court, (2014) 224 Cal. App. 4th 746, the district attorney objected to a convicted murderer’s CPRA request for documents that had been filed in court on the ground of the “privacy rights of ‘hundreds of defendants and victims’”. Id. at 749. The court rejected the privacy argument: “Again, in light of the fact the documents were publicly filed, we reject the District Attorney's arguments based on the California Constitution's right to privacy . . . There is no reasonable expectation of privacy in documents required to be filed in court when those documents are not filed under seal.” Id. at 751.

Finally, the City argues that just because the police reports attached to Pitchess motions were not filed under seal, that does not make them publicly accessible. Records that are required to be kept confidential by law as well as “discovery motions and records filed … in connection with a discovery motion” do not have to be filed under seal or supplemented with a protective order. CRC 2.550(a)(2), (3). Opp. at 15.

The City fails to show how it is aided by the fact that a Pitchess motion is not subject to sealing. This point demonstrates that Pitchess motions, and their attachments, are filed unsealed and can be accessed by any member of the public. As Luckett argues (Reply at 9), the cases cited by the City support her assertion that exhibits attached to discovery motions are public records. See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, (1999) 20 Cal. 4th 1178, 1208.

Luckett argues that the police reports attached to the Pitchess motions provided by the City apparently all were filed with the court and are publicly available. Once these reports became public, they remain public. As such, the police reports served on LAPD are subject to CPRA disclosure. Pet. Op. Br. at 13. A public record served by defense counsel on the police remains a public record in its entirety and LAPD cannot re-claim as exempt portions of those records simply because those records are also housed in their investigatory archives. Reply at 10.

Luckett contends that, since the police report attachments to the Pitchess motions are public records, the City should produce them. What was made public is always public, and Luckett has a right to a copy of any record in the public side of a court file. See Black Panther Party v. Kehoe, (“Black Panther”) (1974) 42 Cal. App. 3d 645, 656 ("when a record loses its exempt status and becomes available for public inspection, section 6253, subdivision (a), endows every citizen with a right to inspect it. By force of these provisions, records are completely public or completely confidential.").[5] Pet. Op. Br. at 14.

The court in Black Panther examined plaintiffs’ request for letters of complaint charging unethical or abusive practices by licensed collection agencies. 42 Cal.App.3d at 648. The court considered whether the CPRA permitted the agency selectively to give collection agencies access to citizens’ complaints and while denying access to plaintiffs. Id. at 656. The court held that the term “public inspection” in the CPRA necessarily implies non-selective disclosure. Id. When a record loses its exempt status and becomes available for public inspection, section 6253(a) endows every citizen with a right to inspect it. Id. Records are either completely public or completely confidential and the CPRA denies public officials any power to pick and choose recipients of disclosure. Id.

The Black Panther court drew on the Freedom of Information Act on which the CPRA was modeled:

“The federal Freedom of Information Act exempts from disclosure "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." (5 U.S.C. § 552(b)(7).) Under this provision the agency's disclosure of investigatory material to the person or firm under investigation requires it to make the material publicly available....”

“Commenting on the federal Freedom of Information Act, Professor Kenneth C. Davis observes: "The Act's sole concern is with what must be made public or not made public. The Act never provides for disclosure to some private parties and withholding from others....” Davis, Administrative Law Treatise (1970 Supp.) § 3A.4, pp. 120-121....” Black Panther, supra, 42 Cal. App. 3d at 656, n. 9 (citations omitted) (emphasis added). Pet. Op. Br. at 14-15.

Luckett adds that public records laws are consistently applied to records and information obtained by the government from third parties. See Poway Unified School District v. Superior Court, (1998) 62 Cal. App. 4th 1496, 1501 (CPRA request for tort claim form submitted to a high school was not exempt under section 6254(b). An exempt record can lose its exemption when filed with a public document as a public record. See Register Div. of Freedom Newspapers, Inc. v. County of Orange, (1984) 158 Cal.App.3d 893, 902 (medical records submitted in connection with a tort claim lost their expectation of privacy). Reply at 4.

The question is whether LAPD disclosed police reports to a party other than an agency in a manner that made the reports public. The answer is that it did not.

As the City argues (Opp. at 10), LAPD’s disclosures of police reports to prosecuting agencies does not waive the exemption for a record of investigation under section 6254(f). If a state or local agency discloses a public record that is otherwise exempt to a member of the public, this disclosure shall constitute a waiver of the applicable exemptions. §6254.5. This waiver does not apply to disclosures made through legal proceedings or as otherwise required by law (§6254.5(b). There also is no waiver where disclosure was “[m]ade to a governmental agency that agrees to treat the disclosed material as confidential” or where the disclosure was “[w]ithin the scope of disclosure of a statute that limits disclosure of specified writings to certain purposes”. §6254(e). Further, the disclosure of records by LAPD to the district attorney does not alter the exempt status of the record.[6] §6265; Fagan v. Superior Court, supra, 111 Cal.App.4th at 617 (district attorney’s access to police officer personnel file for investigation did not waive its protected status).

LAPD disclosed the police reports at issue to the prosecuting agency because it was required by law to do so. The disclosure of a police report primarily occurs when LAPD submits it to the prosecuting agency for consideration in filing criminal charges. Bislig Decl., ¶¶ 24-27; Gonzales Decl., ¶5. The disclosure of police reports also occurs as required by law, subpoena, or court order. Gonzales Decl., ¶7. In submitting police reports as part of criminal legal proceedings, LAPD does so with the understanding that the prosecuting agency will treat the records as confidential subject to limited disclosures mandated by law for specific purposes. Gonzales Decl., ¶6. See also Penal Code §1054.2 (prohibition against disclosure by attorney of victim or witness information); Rackauckas v. Superior Court, (2002) 104 Cal.App.4th 169, 178 (no waiver of exemption where the district attorney provided the report to police department “with the understanding that the document would remain confidential”); Michael P. v. Superior Court, (2001) 92 Cal.App.4th 1036, 1048 (police department did not waive the official information privilege by divulging privileged information to a county social services agency "with an official interest in the information").

Thus, LAPD discloses police reports as part of criminal proceedings and with the understanding that the prosecuting agency will treat the records confidentially. These records find their way to a criminal defendant’s attorney as required by the doctrine of Brady v. Maryland and discovery requirements in Penal Code section 1054 et seq. The City presents evidence that LAPD has never intentionally disclosed police reports in response to a CPRA request. Tu Decl., ¶¶ 3-5. LAPD’s disclosures in the criminal system do not waive the section 6254(f) exemption for police reports as records of investigation.

Nor can a criminal defendant or his attorney waive LAPD’s section 6254(f) exemption for police reports by attaching it to a Pitchess motion filed in court. A waiver of a CPRA exemption requires an intentional disclosure to a “member of the public.” Ardon v. City of Los Angeles, (“Ardon”) (2016) 62 Cal. 4^th 1176, 1184; Pasadena Police Officers, supra, 240 Cal. App. 4th at 295. “[I]n enacting section 6254.5, the Legislature intended to permit state and local agencies to waive an exemption by making a voluntary and knowing disclosure[.]” Ardon, supra, 62 Cal.4th at 1189.[7]

Luckett’s argument relies on the fact that a criminal defendant attached the police reports to his or her Pitchess motions. LAPD did not file the requested police reports with the court or otherwise disclose them to any member of the public. Bislig Decl., ¶27; Gonzales Decl., ¶7; Tu Decl., ¶¶ 3-5. The fact that a defendant did is not a knowing and voluntary waiver by LAPD of section 6254(f)’s exemption for police reports as an investigative record. Absent an express waiver, the exemptions remain intact even if the police reports are the available elsewhere in the public domain (i.e., the courts). “We do not suggest that the mere fact that officers' names are available from other sources necessarily means that the information cannot be considered personal or private.” POST, supra, 42 Cal.4th at 296, n. 5. See Opp. at 12-13.

The mere fact that Luckett may obtain the police reports from court files does not forfeit LAPD’s right to assert that they are exempt from disclosure by it, even when the information contained in the documents is the same as or like the information that is available elsewhere in the public domain. See Assoc. Chino Teach. v. Chino Valley Unif. Sch. Dist., (“Chino Teachers”) (2018) 30 Cal.App.5th 530, 537–38. Disclosures made through “legal proceedings or as otherwise required by law” do not constitute a waiver. §6254.5(b). See also Chino Teachers, supra, 30 Cal.App.5th at 537–38 (agency’s disclosure to the complainant of disposition letters setting forth the results of the investigation into the complaint did not turn a confidential record into a public one; the records would have become public records if they had been provided to a newspaper or a member of the public).

LAPD’s police reports did not lose their exempt status under section 6254(f) simply because they were provided to a prosecuting agency as required by law, the prosecuting agency provided them to a criminal defendant as required by law, and the defendant attached the police report to a Pitchess motion filed in court. As a result, LAPD has no obligation to produce the police reports at issue.

The City argues that the police reports also are exempt under section 6255’s balancing test, which permits an agency to withhold a public record if the agency demonstrates “that the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” This balancing test weighs only public interests; agency interests or personal requester interests that are not also public interests are not considered. Coronado Police Officers Assn. v. Carroll, (2003) 106 Cal.App.4th 1001, 1015–16. Further, evidence of likely consequences because of disclosure is not required. City of San Jose v. Superior Court, (1999) 74 Cal.App.4th 1008, 1024. Instead, courts may rely on human experience to determine the likely effect of disclosure. Ibid.

The City argues that the public interests against disclosure of the requested police reports are significant. Disclosure would violate individual privacy rights because records of criminal investigations by their nature involve sensitive and personal information. Bislig Decl., ¶¶ 22, 23; Gonzales Decl., ¶¶ 3, 4. It would compromise the safety and welfare of victims, witnesses, and their families, leaving them exposed to physical harm, harassment, unwarranted solicitation, fraud, or identify theft. Gonzalez Decl., ¶8. It further would greatly deter victim and witness cooperation with law enforcement agencies. See All of Us, supra, 64 Cal.App.5th at 775-76. Disclosure would enable the creation of rap sheets or private databases of criminal proceedings not subject to the administrative, legislative or judicial safeguards and would reveal police tactics, leads, and conclusions that would jeopardize criminal investigations and prosecutions. Gonzales Decl., ¶8. Opp. at 17.

The City concludes that the public interests against disclosure of the requested police records overwhelmingly outweighs the public interest in favor of disclosure. Mandating disclosure of the police reports in this case would create a legal “loophole” that would subvert the protections of the CPRA, CRC, and other long-held common law and constitutional principles. Anyone could access otherwise confidential criminal investigation record using the same backdoor method employed by Luckett - i.e., a CPRA request to the law enforcement agency that was served with a Pitchess motion. Opp. at 18.

As Luckett contends (Reply at 10), there is no risk of a legal loophole subverting the protections of the CPRA, CRC, and common law and constitutional principles because the Pitchess motions served on LAPD are publicly filed documents, not part of the police investigatory process. While the public interest in non-disclosure of police reports is generally supported by all the reasons discussed by the City, a criminal defendant’s filing of a police report in open court completely undermines these public interests.

The public interest in non-disclosure of police reports filed in open court does not outweigh the public interest in the disclosure of such reports.

7. Redaction of Victim, Witness, and Criminal History Information in Police Reports Under Section 6254(k)

The right of access to public records is not absolute. Becerra v. Superior Court, (2020) 44 Cal.App.5th 897, 913.) The California Constitution acknowledges an inalienable right to privacy that is broader than that provided under the federal Constitution, and places limitations on the right of access to public records. Saunders v. Superior Court, (“Saunders”) (2017) 12 Cal.App.5th Supp. 1, 22; Cal. Const., Art. I, §1 (right to privacy), Cal. Const., Art. I, §§ 3(b)(3) (public right of access does not supersede or modify the right of privacy); 3(b)(5) (right of access “does not repeal or nullify … any constitutional or statutory exception to the right of access … including … any statute protecting the confidentiality of law enforcement and prosecution records.”); 28(b)(4) (victims of crime have a right against the disclosure of confidential information or records).

The CPRA exempts from public inspection “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” §6254(k). This exemption incorporates provisions of the Penal and Evidence Codes that protect the privacy and confidentiality of criminal history information and victim information. Disclosure of “local summary criminal history information” is prohibited except to certain specified persons and entities. Penal Code §§ 13300-305. Criminal history information is confidential and public agencies have a duty to preserve its confidentiality. Westbrook, supra, 27 Cal. App. 4^th at 164. The unauthorized disclosure of criminal information is punishable as a misdemeanor. Penal Code §§ 1302-04. Opp. at 9.

Courts, public agencies, and attorneys are required to protect personal witness and victim information in police reports filed by the prosecutor. Penal Code §964 (“the district attorney and the courts … shall establish a mutually agreeable procedure to protect confidential personal information regarding any witness or victim contained in a police report, arrest report, or investigative report if … submitted to a court by a prosecutor in support of a criminal complaint, indictment, or information”). Attorneys are prohibited from disclosing the personal identifying information of a victim or witness. Penal Code §1054.2; see also Penal Code §1054(d) (a purpose of criminal discovery law is “[t]o protect victims and witnesses from danger, harassment, and undue delay of the proceedings”). Finally, law enforcement agencies also are prohibited from disclosing the information of victims or witnesses to an arrested person or defendant in a criminal action. Penal Code §841.5. Opp. at 9.

Luckett acknowledges that Penal Code sections 13302-05 prohibit the dissemination of criminal offender information. However, she also notes that Penal Code section 13305 states: "It is not violation of this article to include information obtained from a record in (1) a transcript or record of a judicial or administrative proceeding or (2) any other public record when the inclusion of the information in the public record is authorized by a court, statute, or decisional law. Reply at 6.

Luckett concludes that Penal Code sections 13302-05 and 1054.2 have no bearing on disclosure of police reports attached to a Pitchess motion. The Legislature would have been aware of these Penal Code provisions when it enacted Evidence Code section 1046’s requirement that a police report accompany excessive force Pitchess motions. Yet, Evidence Code section 1046 does not require any sealing or redaction. Even if applied, Penal Code section 964 only requires that the redaction of "confidential personal information", which "includes, but is not limited to, an address, telephone number, driver's license or California Identification Card number, social security number, date of birth, [and the like]". Moreover, Penal Code section 964 is directed to prosecutors, not third-party recipients of the information. Penal Code section 1054.2 only outlines the duties of an attorney to not disclose to a criminal defendant the "address or telephone number of victim or witness" and typically this information is redacted by the attorney when the record is attached as an exhibit. Reply at 6-7.

Luckett concludes that, even if LAPD could prove that some of the information within a police report should be withheld, "[t]he fact that parts of a requested document fall within the terms of an exemption does not justify withholding the entire document." CBS, Inc. v. Block, (1986) 42 Cal. 3d 646, 653 (citation omitted). Section 6257 specifically provides that ‘[any] reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt by law.’" Northern Cal. Police Practices Project v. Craig, (1979) 90 Cal.App.3d 116, 123-24. Reply at 8-9.

The police reports sought by Lockett contain some criminal history information of suspects as well as personal identifying information of victims and witnesses. Bislig Decl., ¶¶ 22-23; Gonzales Decl., ¶¶ 3-4. The above case and statutory authority suggests that victim and witness identifying information, and perhaps criminal history information, should be redacted from the police reports attached to the Pitchess motions under section 6254(k). On the other hand, Luckett correctly argues that this information arguably is public if it is disclosed in a court filing. Weaver v. Superior Court, (2014) 224 Cal. App. 4th 746, 751 (no reasonable expectation of privacy exists in court filed documents not under seal).

In any event, Luckett disavows seeking disclosure of any RAP sheets, CLETS information, or criminal histories attached to the Pitchess motions. She notes that, as a practical matter, criminal histories are not included in a Pitchess motion addressing a law enforcement officer’s conduct. Pet. Op. Br. at 15-16. Nor does Luckett appear to care to see victim and witness identifying information. The criminal defense attorney may already have redacted some or all of this information when filing the Pitchess motions. If not, the court will leave the redaction issue for the pertinent court to decide when Luckett seeks copies of the police reports.[8]

The Petition is denied. The police reports attached to the Pitchess motions at issue need not be disclosed by the City because LAPD never waived the section 6254(f) exemption for records of investigation by providing the reports to prosecuting authorities or by the fact that they were turned over to, and filed as attachments to Pitchess motions by, criminal defense attorneys or pro per criminal defendants. As a result, the City has no duty under the CPRA to produce the police report attachments. Luckett may obtain the police reports from the court files of the pertinent criminal cases.

The City’s counsel is ordered to prepare a proposed judgment, serve it on Luckett’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for October 20, 2022 at 9:30 a.m.

[1]All further statutory references are to the Government Code unless expressly stated otherwise.

[2] The City incorrectly cites to Pen. Code, §§ 1302-1304 for this.

[3] Petitioner Luckett requests judicial notice of California Rules of Court (“CRC”) 2.550 (RJN Ex. A) and 2.551 (RJN Ex. B). There is no reason for judicial notice of the rules governing the court.

[4] The City has withheld as non-responsive any records not filed with the Pitchess motions (emails and internal face sheets), and Luckett agrees the City may do so. Pet. Op. Br. at 8.

[5] Luckett cautions that she is not seeking the court’s determination regarding the character of the police reports housed in the LAPD repository as publicly filed or not publicly filed. For such a determination, the court would have to know what burden is placed on LAPD to know whether a police report had been publicly filed. Here, LAPD knows that the police reports are part of publicly-filed Pitchess motions. Pet. Op. Br. at 14, n. 5.

[6] The same is true for a city attorney because “[w]ith the consent of the district attorney of the county, the city attorney of any general law city or chartered city within the county may prosecute any misdemeanor.” §41803.5.

[7] The City notes that waiver does not include accidental or inadvertent disclosures (Ardon, supra, 62 Cal.4th at 1189) and it intends to seek recovery of the inadvertently disclosed police reports. See Newark Unified School District v. Superior Court, (2015) 245 Cal.App.4th 887, 889 (“inadvertently released documents … should be recoverable, given the serious privacy interests involved in the improper disclosure of such documents.”). Bislig Decl., ¶16a. This issue is not before the court.

[8] Luckett asks the City to identify if any of the Pitchess motions at issue attached a criminal history and she will withdraw the request for the CLETS/criminal history record. Pet. Op. Br. at 15-16. It is not clear what Luckett means by this last point, but the identification of criminal histories is not an issue for the court to decide.