Judge James C. Chalfant, Case Number: 22CHCP00248, Date: 2024-05-21 Tentative Ruling

Mosco, et al. v. County of Los Angeles;

22CHCP00248

Tentative decision on petition for traditional writ of mandate: granted in part

Petitioners Ben Mosco and Marla Mosco seek a traditional writ of mandate commanding Respondent County of Los Angeles (“County”) to comply with the California Public Records Act (“CPRA”).

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

Petitioners Mosco filed the Petition on July 12, 2022 against Respondent County, alleging causes of action for violation of (1) California Constitution art. I, section 3(b) and (2) the California Public Records Act (Government[1] Code §6250, et seq.). The Petition alleges in pertinent as follows.

On October 3, 2021, Los Angeles Sheriff Department (“LASD”) deputies from the Santa Clarita Station shot and killed Petitioners’ son, Christopher Mosco (sometimes “Christopher”) while he was having a mental health episode in the Mosco home located at the 2400 block of Chicory Court, Stevenson Ranch, CA 91381. Pet., ¶10. Marla Mosco had called 911 that afternoon requesting law enforcement personnel to come to the Mosco home and talk with Chrisopher and calm him down as he was suffering from a mental health episode. Pet., ¶11. When the LASD deputies arrived, they went to the trunks of their vehicles and pulled out guns. Pet., ¶12. As a result of their use of excessive and unnecessary force, Christopher died, leaving behind a six-year old daughter. Pet., ¶¶ 12-13.

Petitioners Mosco retained the law firm of McMurray Henriks, LLP to represent them in this instant matter. Pet., ¶14. On October 14, 2021, Petitioners’ counsel issued a request for public records regarding the subject incident, including the following: dispatch reports, incident reports, follow-up investigation reports, officer narrative reports, officer statements, use of force reports, witness statements, notes, charts, diagrams, audio or visual recordings of 911 calls/dispatch communications/officer statements/witness statements, surveillance footage, body camera footage, and dashcam footage. Pet., ¶14, Ex. A. The request also sought records of disciplinary actions, corrective actions, and prior use of force by the LASD deputies involved in the incident. Pet., ¶14. LASD received the demand letter on October 20, 2021. Pet., ¶14.

The documents requested in Petitioners’ CPRA request are known to be maintained by sheriff/police departments in ordinary course of business and are required to be disclosed pursuant to the section 6259. Pet., ¶24. Respondent County is withholding use of force reports and camera footage for the sole and improper purpose of delaying and/or hindering a potential civil suit against it. Pet., ¶23. The County patently violated section 6253(c) by asserting an investigatory privilege. Pet., ¶26. The County has failed to identify with specificity what records it has determined to be related to the criminal investigation and who is being investigated, so the investigation exception to production does not apply. Pet., ¶24. The County failed to respond with the specific reasons for its refusal to disclose records -- specifically the body worn camera footage -- as required by the CPRA. Pet., ¶26.

Access to and inspection of the documents which are subject of this Petition is in furtherance of the public’s interest in that the public has a right under the CPRA to be informed of the actions and conduct of LASD and its deputies. Pet., ¶27. Petitioners have no alternative method to compel the County to perform its duty of allowing disclosure of the documents requested. Pet., ¶28. LASD will continue to refuse to permit the public, including Petitioners Mosco, to inspect or obtain copies of the requested public records in violation of the CPRA. Pet., ¶29.

Petitioners Mosco seek a peremptory writ of mandate directing Respondent County to make all requested documents available for inspection within ten days of this court’s order directing it to do so. Pet., at 11. Petitioners also seek (1) a declaration pursuant to section 6259 that Respondent County has violated Petitioners’ rights under the CPRA and California Constitution art. I, section 3 by failing to produce body camera footage and other responsive documents; (2) costs and attorneys’ fees pursuant to section 6259(d); and (3) other relief as this court deems just and proper. Pet., at 11.

On April 4, 2023, the parties stipulated to transfer this action from Chatsworth Courthouse Department F49 to Stanley Mosk Courthouse Department 85.

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 people have the constitutional right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. Cal. Const. art. 1, §3(b)(1). A statute, court rule, or other authority shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access. Cal. Const. art. 1, §3(b)(2). If a statute, court rule, or other authority adopted after the effective date of this subdivision of the constitution limits the right of access, it shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. Cal. Const. art. 1, §3(b)(2).

The CPRA, located at section 7920 et seq. (formerly 6250 et seq.)[2] was enacted in 1968 to safeguard the accountability of government to the public. San Gabriel Tribune v. Superior Court, (1983) 143 Cal.App.3d 762, 771-72. The CPRA’s purpose is to increase freedom of information by giving the public access to information in the 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.

The CPRA makes clear that “every person” has a right to inspect any public record. §7922.525(a) (former §6253(a)). 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. §7920.530 (former §6252(e)).

Upon receiving a request for a copy of public records, the agency shall determine within ten days whether the request seeks public records in the possession of the agency that are subject to disclosure, though that deadline may be extended up to 14 days for “unusual circumstances.” (§7922.535(a), (b)) (former §6253(c)). If the agency determines that the request for records is denied in whole or in part, the agency must respond in writing and justify withholding any record by demonstrating that the record is exempt or that the facts of the case the public interest served by not disclosing clearly outweighs the public interest in disclosure. §§ 7922.540, 7922.000 (former §6255(a)).

If the agency determines that the requested records are subject to disclosure, it shall make the records promptly available upon payment of fees for direct costs of duplication or a statutory fee, if applicable. §7911.530. There is no deadline expressed in a number of days for producing the records. Rather, section 7911.530 says the agency “shall make the records promptly available.” Section 7922.500 (former §6253(d)) provides that nothing in the CPRA “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.”

“Records requests . . . inevitably impose some burden on government agencies. An agency is obliged to comply so long as the record can be located with reasonable effort.” California First Amendment Coalition v. Superior Court, (1998) 67 Cal.App.4th 159, 165-66. “Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches, however. [Citation.] 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, (“City of San Jose”) (2017) 2 Cal.5th 608, 627. The “CPRA does not prescribe specific methods of searching for those documents. 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. [Citation.].” Ibid.

The right to inspect is subject to certain exemptions, which are narrowly construed. California State University, supra, 90 Cal.App.4th at 831. The burden of demonstrating that exemptions apply lies with the governmental entity. §7922.000. Aside from a defined exemption, the entity can demonstrate that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. Id.

Section 7923.600(a) (former §6254(f)) exempts from disclosure “[r]ecords of complaints to, or investigations conducted by any state or local police agency….[and] investigatory…files complied by any…local agency for correctional, law enforcement, or licensing purposes….” This provision protects both records of investigation and investigatory files. Williams v. Superior Court, (“Williams”) (1993) 5 Cal.4^th 337, 341. The exemption protects witnesses, victims, and investigators, secures evidence and investigative techniques, encourages candor, recognizes the rawness and sensitivity of information in criminal investigations, and effectively makes such investigations possible. Dixon v. Superior Court, (2009) 170 Cal.App.4^th 1271, 1276 (coroner and autopsy reports in investigative file were exempt).[3]

The exemption for investigatory files serves an important purpose and is broad in nature. Williams, supra, 5 Cal.4th at 349, 356. Even though a document does not on its face purport to be an investigatory record, it may have extraordinary significance to the investigation warranting exemption. Id. Instead of adopting the federal Freedom of Information Act’s (“FOIA”) case-by-case approach with specific criteria to determine the exemption, the Legislature provided for the complete exemption of such files, with disclosure of information derived from the records. Id. at 350, 353 (criminal investigatory file of two deputy sheriffs).

Information in a file is investigatory material only when the prospect of enforcement proceedings becomes “concrete and definite”. Williams, supra, 5 Cal.4th at 355 (citing Uribe v. Howie, (1971) 19 Cal.App.3d 194). The investigatory file exemption does not terminate when the investigation ends; documents properly in the file remain exempt. Rackauckas v. Superior Court, (“Rackauckas”) (2002) 104 Cal.App.4th 169, 174. A file is investigatory only if the prospect of law enforcement is “definite and concrete” and the record properly belongs in the file because it relates to the investigation. Copley Press, Inc. v. Superior Court, (2006) 39 Cal.4^th 1272, 1293.

In contrast to investigatory files, “records of investigation” are exempt on their face whether or not included in an investigatory file. Haynie v. Superior Court, (“Haynie”) (2001) 26 Cal.4th 1061, 1068-69. Records of investigation do not lose their exempt status based on the prospect of enforcement. 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. Id. at 1070. Even reports from routine investigations such as traffic stops are protected. Id. at 1070-71.

“[R]ecords of investigation exempted under [former] section 6254(f) encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency.” American Civil Liberties Union Foundation of Southern California v. Superior Court, (2017) 3 Cal.5th 1032, 1040, 1042 (LAPD’s records from scanning license plates to look for stolen cars through automated license plate reader technology were not records of investigation because they were not part of targeted inquiry into particular crime).

Notwithstanding section 7923.600 or any other law, a record relating to the report, investigation, or findings of (i) an incident involving the discharge of a firearm at a person by a peace officer, (ii) an incident involving the use of force against a person by a peace officer that resulted in death or great bodily injury, (iii) a sustained finding of unreasonable or excessive force, or (iv) a sustained finding that an officer failed to intervene shall be disclosed under the CPRA. Penal Code §832.7(b)(1)(A).

“An agency shall redact a record disclosed pursuant to this section only for any of the following purposes: (A) [t]o remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers…(B) [t]o preserve the anonymity of whistleblowers, complainants, victims, and witnesses…(C) [t]o protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about possible misconduct and use of force by peace officers and custodial officers…(D) [w]here there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.” Penal Code §832.7(b)(6).

“Notwithstanding paragraph (6), an agency may redact a record disclosed pursuant to this section, including personal identifying information, where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information.” Penal Code §832.7(b)(7).

An agency may withhold a record of an incident that is the subject of an active criminal or administrative investigation as follows: During an active investigation, disclosure may be delayed for 60 days from the date of misconduct or use of force or until the district attorney determines whether to file criminal charges, whichever occurs sooner. The agency shall provide the specific basis in writing for its determination that a delay in disclosure outweighs the public interest in disclosure. Penal Code §832.7(b)(8)(A)(i). After 60 days from the misconduct or use of force, the agency may continue to delay disclosure if it could reasonably be expected to interfere with a criminal enforcement proceeding against the officer. The agency shall, at 180-day intervals, provide in writing the specific basis for its determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. The writing shall include the estimated date of disclosure. The information shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the incident, whichever occurs first. Penal Code §832.7(b)(8)(A)(ii).

Personnel, medical, or similar files are exempt when their disclosure would constitute an unwarranted invasion of personal privacy. §7927.700. The home addresses, home telephone numbers, personal cellular telephone numbers, and birthdates of all employees of a public agency shall not be deemed to be public records or open to public inspection except in particular circumstances. §7928.300(a).

In City of San Jose, supra, 2 Cal.5^th at 608, the California Supreme Court held that while city employees’ private voicemails, e-mails, and text messages relating to city business may be subject to disclosure under the CPRA, “[a]ny personal information not related to the conduct of public business, or material falling under a statutory exemption, can be redacted from public records that are produced or presented for review.” Id. at 625-26. See also Labor & Workforce Development Agency v. Superior Court, (2018) 19 Cal. App. 5th 12, 31 (describing City of San Jose as not wanting to “allow evasion of [the CPRA] simply by the use of a personal account”).

Notwithstanding any other provision of the CPRA, a video or audio recording that relates to a critical incident may be withheld during an active criminal or administrative investigation if disclosure would substantially interfere with the investigation, but disclosure of the recording may be delayed for no longer than 45 days after the agency knew about the incident. §7923.625(a)(1).

After 45 days, the agency may continue to delay disclosure for up to one year from the incident date if it demonstrates that disclosure would substantially interfere with the investigation. After one year, the agency may continue to delay disclosure only if it demonstrates by clear and convincing evidence that disclosure would interfere with the investigation. The agency shall promptly inform the requester in writing the specific basis for this determination and provide the estimated date for disclosure. The agency shall reassess the withhold and notify the requester every 30 days. §7923.625(a)(2).

If the agency demonstrates that the public interest in withholding an audio or video clearly outweighs the public interest in disclosure because it would violate the reasonable expectation of privacy of a subject depicted in the recording, the agency shall inform the requester in writing the specific basis therefore and may redact to obscure the specific portions of the recording that protect that interest. §7923.625(b)(1).

Section 7922.000 is the CPRA’s catch-all provision and “contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.” Michaelis v. Superior Court, (2006) 38 Cal.4th 1066, 1071. The court must balance the public interest in disclosure against the privacy interests, evaluating the weight of the public interest by the gravity of the public tasks sought to be illuminated and the directness with which the disclosure will illuminate those tasks. See Humane Society of the United States v. Superior Court, (2013) 214 Cal.App.4th 12133, 1267-68

A CPRA claim to compel compliance with a public records request may proceed through either mandamus or declaratory relief. §7923.000. 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, (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 7923.000 authorizes a mandamus writ only when “public records are being improperly withheld from a member of the public”. The CPRA remedy is available only to a person who is seeking disclosure of public records and only where the public entity is allegedly improperly withholding those records. County of Santa Clara v. Superior Court, (“County of Santa Clara”) (2009) 171 Cal.App.4th 119, 126. If the court finds that the public official’s decision to refuse disclosure is not justified, the court shall order the public official to make the record public. §7923.110(a). The CPRA provides no judicial remedy for any other purpose or entity or a remedy that may be utilized for any purpose other than to determine whether a particular record or class of records must be disclosed.” Id. at 127 (emphasis in original).

If the requestor prevails in such litigation, the court shall award court costs and reasonable attorney’s fees, to be paid by the public agency at issue. §7923.115(a). If the case was clearly frivolous, the court shall award court costs and reasonable attorney’s fees to the public agency. §7923.115(b).

On October 3, 2021, LASD’s Homicide Bureau opened a criminal investigation into the incident involving Christopher Mosco's suspected assault with a deadly weapon on peace officers and the actions of LASD deputies that led to the shooting of Christopher by two of the deputies (the “incident”). Modica Decl., ¶2.

Petitioners’ first CPRA request was sent to LASD and the County on October 14, 2021. Henriks Decl., ¶3, Ex. 1.

In an October 29, 2021 response, LASD stated that, for requests 2 and 4 through 7, “[t]The requested records are part of an ongoing and active criminal investigation and are therefore exempt from disclosure under [citations]…..” Henriks Decl., ¶4, Ex. 2. The response stated that records responsive to requests 3 and 8 through 13 would be released as they become available on LASD’s public website. Id.

On November 1, 2021, County Counsel stated that the County would require a 14-day extension to respond by November 15, 2021. Henriks Decl., ¶5, Ex. 3. No further response was made in November 2021. Id., ¶6.

Petitioners made a second CPRA request for the same records on December 13, 2021. Henriks Decl., ¶7.

On December 22, 2021, County Counsel stated that the County required a 14-day extension to respond, by January 10, 2022, to Petitioners’ renewed request for the same records. Henriks Decl., ¶8, Ex. 5.

On January 4, 2022, County Counsel responded within the timeframe of the 14-day extension. Counsel stated that the County was “still in the process of searching for, pulling, collecting, and reviewing potentially responsive records,” and that “[o]nce our review has been completed, you will be notified.” Henriks Decl., ¶9, Ex. 6.

On February 8, 2022, LASD released the names of the two deputies who shot Christopher Marcos, stating, inter alia, that “[t]he requested records are part of an ongoing and active criminal investigation by the Los Angeles County District Attorney's Office, and therefore are exempt from disclosure….The aforementioned reasons for preventing interference with this active investigation outweigh public interest in disclosure in the requested records. The Department intends to comply with your requests to the extent that it possesses records that are not otherwise exempt from disclosure.…We estimate that we will be able to produce responsive records in or about 18 months. We will update you as to any changes to our estimated production date in 180 days.” Henriks Decl,, ¶10, Ex. 7.

On June 21, 2022, Petitioners’ counsel sent follow-up correspondence noting the inadequacies of LASD’s February 8 response. Henriks Decl., ¶11, Ex. 8.

On July 1, 2022, LASD sent a letter disagreeing with Petitioners regarding the adequacy of its responses, referred Petitioners to the justifications provided in its February 8, 2022 response, and reiterated the estimated timelines for production of 18 months and an update in 180 days. Henriks Decl., ¶12, Ex. 9.

On July 12, 2022, Petitioners Mosco filed the instant Petition for writ of mandate. Henriks Decl., ¶13.

On June 2, 2023, during a meet and confer call between counsel, the County’s attorney indicated for the first time that the “exemption” to disclosure of the documents no longer existed and that records would be produced. Henriks Decl., ¶14. On June 6, 2023, during a trial setting conference, the County’s attorney indicated that responsive written information to Petitioners’ requests would be provided by July 7, 2023. Henriks Decl., ¶15. No records were provided in July 2023 despite multiple follow ups from Petitioners’ counsel. Henriks Decl., ¶16, Ex. 10.

On August 9, 2023, Respondent County finally released some records. Henriks Decl., ¶¶17, 24, Exs. 11, 16.

On September 6, 2023, the County provided additional records and noted that more would be provided on a rolling basis. Henriks Decl., ¶18, Ex. 12.

On October 30, 2023, the County provided additional videos and noted more would be forthcoming. Henriks Decl., ¶19, Ex. 13.

On November 22, 2023, the County indicated that the remaining responsive materials would be produced after the Thanksgiving holiday, and that it considered the request to be resolved at that point. Henriks Decl., ¶20, Ex. 14.

The materials Petitioners Mosco received from the County contained major, unreasonable redactions that effectively rendered some of the records meaningless. Henriks Decl., ¶21. On December 13, 2023, the parties met and conferred in an attempt to resolve this issue, and the County’s attorney indicated that he would speak with his client to determine whether it could unredact produced documents. Henriks Decl., ¶21.

On January 9, 2024, the County’s attorney sent a letter identifying additional LASD deputies involved in the shooting, and agreeing to unredact certain documents only if Petitioners Mosco signed a waiver/release and agree to indemnify the County if it is sued by third parties whose personal information was released. Henriks Decl., ¶22, Ex. 15. Petitioners could not agree to these terms because there is no need for the information to be posted on LASD’s website and the unredacted information is in public view. Henriks Decl., ¶23.

On July 13, 2022, the Homicide Unit’s investigation into the incident was forwarded to the Los Angeles County District Attorney’s Office, Justice System Integrity Division (“JSID”) for JSID’s review and evaluation as to whether to pursue criminal charges against the deputies involved in the shooting. Modica Decl., ¶3. Forwarding the Homicide Unit’s investigation to JSID after a deputy-involved shooting is standard procedure for the Homicide Unit. Modica Decl., ¶3.

On June 2, 2023, a former associate in the law firm representing the County, Daniel Seitz, Esq. (“Seitz”), relayed to Petitioners’ counsel that LASD had determined that some records related to the incident, such as an incident report, coroner’s report, other related paper records, and some video records, need not be delayed from disclosure any longer and that LASD was reviewing the records and applying legally required and permissible redactions in preparation for disclosure to Petitioners. Sheldon Decl., ¶3. Seitz also advised that one of the bases for LASD invoking the disclosure delay provisions contained in applicable law -- e.g., Penal Code section 832.7(b)(8) -- was that there was an active investigation into the conduct of the two deputies who shot at Christopher during the incident. Sheldon Decl., ¶3.

On June 6, 2023, during a trial setting conference, Seitz gave the court an estimated July 7, 2023 production date for responsive paper records. Although the County was still identifying responsive audio and video recordings, those records could potentially be produced by September 15, 2023. Sheldon Decl., ¶4.

On August 9, 2023, the County’s attorney provided an update letter to Petitioners’ counsel, and sent a portion of responsive records that had been reviewed for necessary and permissible redactions and were no longer subject to applicable delay provisions. Sheldon Decl., ¶5, Ex. A. The records were sent via two compact discs by mail and contained the Homicide Bureau file related to the incident (121 pages) and three audio recordings. The letter also contained two notes that “the Department applied redactions to ensure compliance with the California Public Records Act, including but not limited to Government Code sections 7922.000, 7927.700, and 7927.705, and Penal Code section 832.7(b)(6) and (b)(7)” and that the “records were previously withheld from disclosure pursuant to the delay provisions in section 7923.625 and Penal Code section 832.7(b)(8), which authorize delays in disclosure due to pending and active criminal investigations, in this case those performed by the Department’s Homicide Bureau and the District Attorney’s Office’s Justice System Integrity Division.” Sheldon Decl., ¶5. The letter further indicated that LASD had additional video and audio files which may be responsive but superfluous because they consisted of audio recordings corresponding to several of the interviews included in the Homicide Bureau file that was disclosed with the letter, and several video recordings recovered from nearby residences as part of the criminal investigation. Sheldon Decl., ¶5. The letter sought to confirm Petitioners’ desire for these files as they would have to be reviewed and redacted in accordance with applicable law prior to disclosure. Sheldon Decl., ¶5.

On September 6, 2023, Seitz provided a letter to update Petitioners’ counsel, and enclosed another portion of LASD’s responsive records in the form of two additional compact discs containing three audio recordings of witness interviews and ten video recordings from private security cameras. Sheldon Decl., ¶6, Ex. B. The letter also noted the redactions made to the records and cited supporting authority for those redactions. Sheldon Decl., ¶6. The letter further noted that remaining records would be produced on a rolling basis as they become available, but there were approximately 100 short video recordings remaining, the review of which was costly and time-consuming. Sheldon Decl., ¶6.

On October 30, 2023, the County’s attorney provided a letter to update Petitioners’ counsel, and enclosed another portion of responsive records in the form of one compact disc with 21 additional video recordings from the approximately 100 video recordings remaining. Sheldon Decl., ¶7, Ex. C. The letter noted the redactions to the records and the supporting authority for those redactions and indicated that more records would be forthcoming. Sheldon Decl., ¶7.

On November 22, 2023, the County’s attorney provided a letter to update Petitioners’ counsel, and enclosed the last portion of responsive records in the form of an internet hyperlink where Petitioners could download responsive records. Sheldon Decl., ¶8, Ex. D. The letter noted the redactions made to the records and cited supporting authority for those redactions. Sheldon Decl., ¶8. The letter also indicated that the same materials were being sent to Petitioners’ counsel in the form of 24 compact discs, gave a breakdown of the contents of the discs, and noted that the County considered Petitioners’ requests to be resolved. Sheldon Decl., ¶8.

On January 11, 2024, the County’s attorney attended the trial setting conference along with his colleague. Sheldon Decl., ¶9. During the conference, Petitioners’ counsel argued that they were entitled to additional disclosures and that redactions to records made by the County were improper. Sheldon Decl., ¶9. More specifically, Petitioners’ counsel argued that they were entitled to the names, badge numbers, and employee numbers of all deputies who responded to the incident, any additional body camera footage from the incident or a declaration stating there is no additional footage, and, except for photos of Christopher Mosco, the removal of all redactions from previously disclosed records, including everything that was outdoors and visible to the public such as neighbors' house numbers and license plate numbers. Sheldon Decl., ¶9. The County’s attorney indicated that they would review these requests with the County but also believed that the redactions were legally justified and made in good faith. Sheldon Decl., ¶9.

On January 9, 2024, the County’s attorney provided a letter to update Petitioners’ counsel, identifying additional LASD deputies who responded to the incident but were not part of the shooting. Sheldon Decl., ¶10, Ex. E. The letter also indicated that the County would agree to unredact certain documents if Petitioners agreed to sign a waiver/release in which they: (1) agree to have their personal information released (which includes photographs of the home showing prescription drug labels, location of valuables, family photos, and so forth) knowing that these records will become publicly accessible after release to Petitioners, and (2) agree to indemnify the County if it is sued by third parties whose personal information was released pursuant to Petitioners’ counsel’s demands (e.g., neighbors’ faces, license plate numbers, and house numbers). Sheldon Decl., ¶10. The letter further provided a list of the information the County was legally required to redact and cited the authority for those redactions. Sheldon Decl., ¶10. The January 9, 2024 letter enclosed a declaration of the County’s custodian of records which detailed the dates that the deputies involved in the incident were issued body-worn cameras. Sheldon Decl., ¶11, Ex. F. The declaration also gave specific reasons why disclosure of the name and personal information of one LASD officer would pose a significant danger to the officer’s physical safety. Sheldon Decl., ¶11.

LASD employee numbers are distinct from a deputy’s badge number and are not displayed on an employee’s uniform. Aguirre Decl., ¶13. These numbers give access to certain confidential law enforcement databases, such as the California Law Enforcement Telecommunications System (“CLETS”), which contain confidential information such as criminal history and driver records of members of the public. Aguirre Decl., ¶13. The employee number is also used by LASD employees to access Human Resources databases containing their confidential personnel records such as performance evaluations, medical benefits, and 401(k). Aguirre Decl., ¶13. As such, disclosure of the employee numbers would reveal part of the login information used for these confidential databases, and therefore increase the potential for an attack on an Information Technology system of the County. Aguirre Decl., ¶13.

LASD redacted photos showing faces of deputies because the public would be able to use the photos to aggregate and compile any information available about an officer into a single publicly accessible database. This includes “doxing” -- the intentional publication of a person’s private information online without their consent as part of concerted efforts to harass and harm an officer and their family. Aguirre Decl., ¶14. Thus, LASD made these redactions over concern that the release of the photos would contribute to websites that offer bounties or financial rewards for the killing of peace officers and that the disclosed photos could be used to scan databases and pull deputies’ personal information. Aguirre Decl., ¶14.

As of April 11, 2024, JSID’s evaluation and further investigation is continuing, and the District Attorney’s Office has neither decided to pursue criminal charges against the involved deputies nor has it issued notification to LASD that it will not be filing criminal charges. Modica Decl., ¶3.

Petitioners contend that (1) LASD unreasonably delayed in producing responsive documents, (2) certain groups of redacted documents that were produced must be unredacted, and (3) they are entitled to attorney fees for causing LASD’s production.

Petitioners argue that, by producing responsive documents after two years of stonewalling, the County effectively concedes that the records were subject to disclosure but argues that the significant delay was justified. In August 2023, the County finally produced documents that it claimed it was justified in delaying and withholding due to an “ongoing criminal investigation.” Henriks Decl., ¶¶ 12-17, Exs. 9-11. Upon review of the documents, it is apparent that the “criminal investigation” was whether the deceased Christopher Mosco committed an assault with a deadly weapon on Deputies Hernandez and Wheatcroft. Henriks Decl., ¶24, Ex. 16. A dead person cannot be charged with a crime. Pet. Op. Br. at 8.

Further, the disclosed records demonstrate that the last investigative report was finalized on June 7, 2022, and the majority of files had been completed by January of 2022. Henriks Decl., ¶24, Ex. 16, pp.2-3. There is no indication that any evidence or investigation was ever presented to the District Attorney or that any contemplation of charges ever took place. See generally Ex. 16. There is even less reason to withhold disclosure of public records for more than a year after any investigatory action had concluded. Pet. Op. Br. at 8.

The County cannot generally state that all responsive records are exempt from disclosure simply because they may be part of an “investigatory file” and/or administrative review. See Haynie, supra, 26 Cal.4th at 1069, 1071. Moreover, a public agency may not “shield a record from public disclosure, regardless of its nature, simply by placing it in a file labeled ‘investigatory.’” Williams, supra, 5 Cal.4th at 355. LASD inappropriately refused to disclose any documents for years under the vague and blanket assertion that some investigation was ongoing. It was inappropriate to do so for every responsive record. LASD did not even provide the names of the deputies who shot Christopher Mosco until February 8, 2022, more than three months after Petitioners’ CPRA request. Henriks Decl., ¶10, Ex. 7. Pet. Op. Br. at 9.

In response to Petitioners’ first CPRA requests sent by certified mail on October 14, 2021, LASD stated 15 days later that “[t]he requested records are part of an ongoing and active criminal investigation and are therefore exempt from disclosure under [citations]…..Aguirre Decl.,, ¶4, Ex. B, p. 18;

On November 1, 2021, 12 days after receipt of the CPRA request, LASD stated that it would require a 14-day extension to respond by November 15, 2021. Aguirre Decl., ¶5, Ex. C, p. 24. No response was made on November 15, 2021, or at any point thereafter, regarding the first CPRA request. Id., ¶5.

In response to Petitioners’ second CPRA request submitted on December 13, 2021, LASD stated on December 27, 2021, 12 days after receipt, that it required a 14-day extension to respond, or by January 10, 2022. Aguirre Decl., ¶7, Ex. E, p. 37.

On January 4, 2022, LASD timely responded within the 14-day extension. However, it stated only that it was “still in the process of searching for, pulling, collecting, and reviewing potentially responsive records,” and that “[o]nce our review has been completed, you will be notified,” without providing an estimated timeframe as to when such compliance could be expected. Aguirre Decl., ¶8, Ex. F, p. 42.

On February 8, 2022, 35 days after receipt, LASD released only the names of the two deputies who shot Christopher Marcos, stating, inter alia, that “[t]he requested records are part of an ongoing and active criminal investigation by the Los Angeles County District Attorney's Office, and therefore are exempt from disclosure….The aforementioned reasons for preventing interference with this active investigation outweigh public interest in disclosure in the requested records. The Department intends to comply with your requests to the extent that it possesses records that are not otherwise exempt from disclosure.…We estimate that we will be able to produce responsive records in or about 18 months. We will update you as to any changes to our estimated production date in 180 days.” Aguirre Decl., ¶9, Ex. G, pp. 46-47.

No response was made by LASD within the 180 days between February 8 and August 7, 2022. Aguirre Decl., ¶5.

In response to Petitioners’ June 21, 2022 attempt to informally obtain compliance, on July 1, 2022, LASD categorically refuted the various inadequacies raised by Petitioners, referred Petitioners to the conclusory justifications in its February 8, 2022, response, and reiterated the previously estimated timelines for production of 18 months and an update in 180 days. Reply at 1-3.

Petitioners conclude that LASD unjustifiably withheld documents and information responsive to their CPRA requests, stringing them along for years and essentially hoping they would go away without needing to comply. It is apparent that if Petitioners did not constantly follow up on their CPRA requests and file this Petition, LASD would not have produced anything to Christopher Mosco’s parents. This tactic was employed for no other reason than to prevent Petitioners from learning critical information to bring a lawsuit against County and LASD regarding the death of their son, which has strict and short filing deadlines. See, e.g., §911.2. Pet. Op. Br. at 9.

The short answer to Petitioners argument is that there is no remedy for a public agency’s delay in producing records pursuant to a CPRA request other than to file a mandamus/declaratory relief petition to compel the production. As County of Santa Clara stated, section 7923.000 authorizes a mandamus writ only when “public records are being improperly withheld from a member of the public”. The CPRA remedy is available only where the public entity is allegedly improperly withholding those records. 171 Cal.App.4th at 126. The CPRA provides no judicial remedy for any other purpose or entity or a remedy that may be utilized for any purpose other than to determine whether a particular record or class of records must be disclosed.” Id. at 127 (first emphasis in original).

Nonetheless, Petitioners’ delay argument is relevant to whether they triggered production of records and are entitled to attorney fees. As the County states, Petitioners mostly ignore the grounds for delay laid out in LASD’s various letters, including Penal Code section 832.7(b)(8). Additionally, Petitioners focus solely on a purported investigation of the deceased Christopher Mosco and ignore LASD’s criminal investigation of the deputies’ actions. Opp. at 8-9.

While SB 1421 and 16 amended Penal Code section 832.7 to make certain categories of peace officer personnel records available under the CPRA, “section 832.7 reflects continuing concern for certain privacy and safety interests and competing public interests.” Ventura County Deputy Sheriffs’ Assn. v. County of Ventura, (2021) 61 Cal.App.5th 585, 592-93 (citation omitted). Section 7923.625[4] and Penal Code section 832.7(b)(8) authorize delays in disclosure due to pending and active criminal investigations.

Pursuant to Penal Code section 837.7(b)(8), an agency may withhold a record of an incident that is the subject of an active criminal or administrative investigation for 60 days from the date of misconduct or use of force or until the district attorney determines whether to file criminal charges, whichever occurs sooner. The agency shall provide the specific basis in writing for its determination that a delay in disclosure outweighs the public interest in disclosure. Penal Code §832.7(b)(8)(A)(i).

Petitioners incorrectly state that the only criminal investigation concerned Christopher Mosco’s actions. There at least was an ongoing investigation of the deputies involved in the incident. See Modica Decl., ¶¶ 2-3. A criminal investigation was performed by LASD’s Homicide Bureau and the District Attorney’s Office’s JSID. Modica Decl., ¶¶ 2-3. Under Penal Code section 832.7(b)(8), disclosure may be delayed for up to 60 days from the date of the shooting or use of force if the agency provides the specific basis for the determination that the interest in delaying disclosure clearly outweighs the public interest in disclosure. LASD notified Petitioners by letter on October 29, 2021, only 26 days after the date of the shooting, that the records were part of an ongoing and active criminal investigation and that their release would jeopardize the completion of the investigation as well as the potential safety of witnesses, which outweighs the public interest in disclosure. Aguirre Decl., ¶ 4, Ex. B. Opp. at 9.

After 60 days from the misconduct or use of force, the agency may continue to delay disclosure if it could reasonably be expected to interfere with a criminal enforcement proceeding against the officer. The agency shall, at 180-day intervals, provide in writing the specific basis for its determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. The writing shall include the estimated date of disclosure. The information shall be disclosed after the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or no later than 18 months after the incident, whichever occurs first. Penal Code §832.7(b)(8)(A)(ii).

LASD notified Petitioners in a February 8, 2022 letter that “[d]isclosure of the requested records before the District Attorney's investigation into this incident is complete would substantially interfere with the investigation and/or criminal enforcement proceeding by threatening the integrity of the evidence, endangering the safety of victims and witnesses, tainting witnesses and the jury pool, and precluding a fair trial, if an individual is charged with a crime.” Aguirre Decl., ¶9, Ex. G. The letter also disclosed responsive information that and would not substantially interfere with the active criminal investigation -- namely, a copy of the “Incident Summary” and the names of the two deputies involved in the shooting -- and provided an estimate that the remaining records would be available in 18 months. Id. Opp. at 9-10.

LASD provided Petitioners another letter on July 1, 2022, noting that the records related to the incident were still part of an ongoing and active criminal investigation and therefore are being withheld for the reasons stated in the previous response letter, noting that the estimated disclosure timeline was the same. Id., ¶11, Ex. I. Opp. at 10.

The County also relies on Penal Code section 837.6(b)(6), arguing that, during the period it withheld the records, the public interest served by not disclosing the information clearly outweighed the public interest served by disclosure of the information. As stated in letters updating Petitioners, disclosure of the records would have substantially interfered with the investigation and/or criminal enforcement proceeding by threatening the integrity of the evidence, endangering the safety of victims and witnesses, tainting witnesses and the jury pool, and precluding a fair trial, if an individual is charged with a crime. Opp. at 10-11.

LASD began disclosing the records once it determined that disclosure would no longer substantially interfere with the investigation, and redactions were made as legally required. Aguirre Decl., ¶¶ 9, 12; Sheldon Decl., ¶¶ 3, 5-8. Accordingly, LASD complied with the procedural requirements of Penal Code section 832.7. Opp. at 10.

In reply, Petitioners note that LASD was required to provide a determination regarding disclosure of any records responsive to each of Petitioners’ requests within ten days of receipt or to specify a time for later determination of no more than 14 days. §7922.535(a-b); see also Anderson-Barker v. Superior Court, (2019) 31 Cal.App.5th 528, 538. With one exception, LASD consistently failed to respond in the time required. On at least three such occasions, LASD failed to sufficiently “justify the withholding of any record by demonstrating [its] exempt[ion] under express provisions of [the CPRA], or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs [those] served by disclosure of the record.” §§ 7922.000, 7922.540; see also Los Angeles County Bd. of Supervisors v. Sup. Ct., (2016) 2 Cal.5th 282, 291 (catch-all provision requires agency “‘to demonstrate a clear overbalance’ in favor of nondisclosure.”). Reply at 1.

Sections 7922.000 and 7922.540 require the agency to justify withholding any record by demonstrating that the record is exempt or that the facts of the case the public interest served by not disclosing clearly outweighs the public interest in disclosure. But they do not require any specific detail. It is sufficient to note the existence of an ongoing criminal investigation and that disclosure of the records would substantially interfere with the investigation and/or criminal enforcement proceeding by threatening the integrity of the evidence, endangering the safety of victims and witnesses, tainting witnesses and the jury pool, and precluding a fair trial if an individual is charged with a crime. Petitioners cite no authority to the contrary.

Petitioners also dispute the County’s reliance on Penal Code section 832.7(b)(8) (and section 79623.625) as a severely oversimplified mischaracterization. For both, there must be an active and ongoing criminal investigation or enforcement proceeding. §7923.625(a-b); Penal Code §832.7(b)(8)(A)(i-iii). The County has effectively conceded that (1) it cannot substantiate that any investigation has remained active and ongoing after LASD’s Homicide Unit provided its findings to the JSID the day after Petitioners filed this action, and (2) it cannot confirm that the District Attorney will ever pursue criminal enforcement. Reply at 3.

Indeed, the County has confirmed that the JSID has “neither decided to pursue criminal charges against the involved deputies nor has it issued notifications to the LASD that it will not be filing criminal charges.” In other words, LASD’s statement on February 8, 2022 that “[t]he requested records are part of an ongoing and active criminal investigation by the District Attorney's Office”, as well as the affirmations of the same by LASD’s records custodian, are knowingly false. Aguirre Decl., ¶9, Ex. G, pp. 46-47. Accordingly, the only support that a criminal investigation has remained active and ongoing since July 13, 2022 are the self-serving statements of Lt. Michael Modica that it is “[his] understanding that JSID’s evaluation and [unverified] further investigation is continuing…” Modica Decl., ¶3. Reply at 4.

The County’s delay in production clearly was justified until at least July 13, 2022. On that date, the Homicide Unit’s investigation was forwarded to JSID. Modica Decl., ¶3. LASD has never received a non-prosecution letter from the District Attorney, but it also has no reason to believe that the investigation is ongoing and active. Yet, it was not until early June 2023 that LASD determined that disclosure of some records related to the incident -- an incident report, coroner’s report, other related paper records, and some video records -- would not substantially interfere with the still ongoing investigation into the deputies. Aguirre Decl., ¶12. This was relayed to Petitioners’ counsel by the County’s counsel during a meet and confer on June 2, 2023. Sheldon Decl., ¶3.

The County’s attorney subsequently estimated that responsive paper records could be provided by July 7, 2023 and that responsive audio and video recordings could potentially be produced by September 15, 2023. Sheldon Decl.,, ¶4. Some records were produced on August 9, 2023 (Sheldon Decl., ¶5, Ex. A) and others were produced on September 6, 2023, with a notation that remaining records were being produced on a rolling basis as they become available (Sheldon Decl.,, ¶6, Ex. B). More records were produced on October 30 and November 22, 2023, until the County deemed production to be complete. Sheldon Decl., ¶¶ 7-8, Exs. C, D.

Should LASD have concluded that there was no active and ongoing investigation before June 2023? Probably. At least the County has not shown that it could not have reached this conclusion earlier. Nonetheless, the County always intended to disclose the pertinent records and was simply waiting for the investigation to end. If the County waited unduly, as indicated ante there is no remedy for delayed disclosure of public records other than a petition to compel disclosure.

Petitioners do not claim there are any unproduced records. They contend, however, that the produced records have been redacted so that they are effectively useless, in a way that frustrates the whole purpose of the CRPA. Particularly, County has refused to (a) give the name of and information of at least one officer involved in the incident, (b) show the faces of the officers involved in the incident, and (c) provide unredacted photos of public areas and information in plain public view, including house and license plate numbers. Pet. Op. Br. at 9-10.

To justify redacting records under the catch-all exemption, an agency must show that “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” §7922.000. The burden is on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality. Castañares v. Superior Court of San Diego County, (2023) 316 Cal.Rptr.3d 422, 435. This is a high burden as the CPRA embodies a strong policy in favor of disclosure of public records. Bernardi v. County of Monterey, (2008) 167 Cal.App.4th 1379, 1393. Pet. Op. Br. at 10.

Petitioners’ moving papers do not address the issue of disclosure of employee numbers. The County argues that employee ID numbers are exempt from disclosure under Penal Code section 832.7(b)(6) and (b)(7), and sections 7927.700 (personnel files), 7927.705 (privilege), 7929.210(a)(vulnerable information technology), and 7922.000 (catch-all). Opp. at 11.

These numbers are distinct from a deputy’s badge number, and are not displayed on their uniform. Aguirre Decl., ¶13. The employee numbers give access to certain confidential law enforcement databases, such as CLETS, which contains confidential criminal history and driving records. Id. The employee number is also used by LASD employees to access Human Resources databases containing their confidential personnel records, such as performance evaluations, medical benefits, and 401(k) plans. Id. Opp. at 11.

Disclosure of the employee numbers would reveal part of the login information used for these confidential databases, and increase the potential for an attack on an information technology system of the County. Id. See §7929.210(a) (“Nothing in this division requires the disclosure of an information security record of a public agency, if, on the facts of the particular case, disclosure of that record would reveal vulnerabilities to, or otherwise increase the potential for an attack on, an information technology system of a public agency”). Opp. at 11.

Petitioners reply that the fact that the disclosure of employee numbers “would reveal part of the login information used for confidential databases” is insufficient. Plainly, the slippery slope contemplated is patently unreasonable for redacting deputies’ employee numbers in light of the compelling interests in identifying peace officers who abuse their authority in ways that endanger the public and other officers. Any hackers stand less chance of infiltrating these confidential databases with a mere piece of login information than they do of impersonating someone with only the last four digits of their social security number. Reply at 5.

The mere fact that disclosure of employee numbers would not provide open access to employee 401(k)’s and other confidential employee information is small comfort to those employees. No one wants any portion of their confidential employee information to be publicly available. The public interest served by not disclosing the employee numbers is the prevention of access to County personnel records and sensitive information of members of the public. These interests clearly outweigh the public interest served by disclosure of the employee numbers, which does nothing to inform the public about the incident involving Christopher Mosco. Petitioners have not even attempted to articulate a public interest favoring disclosure of employee ID numbers where the deputy has already been identified. The County need not provide unredacted employee ID numbers.

In weighing private or even public interests in nondisclosure against the interests in disclosure, courts may consider potential threats that are reasonably asserted and specifically identifiable. Connell v. Superior Court, (1997) 56 Cal.App.4th 601, 612. However, the court may not accept mere speculation. Id. “A mere assertion of possible endangerment does not clearly outweigh the public interest in access[ing]” records related to the conduct of the people’s business. Id. at 613 (internal quotation marks omitted) (quoting CBS, Inc. v. Block, (1986) 42 Cal.3d 646, at 652). The weight of the public interest in disclosure is “proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate.” Id. at 616 (original emphasis). Reply at 4-5.

Petitioners argue that LASD has disclosed the full names and badge numbers of most of the officers involved, which makes them readily identifiable to the public and renders the redaction of their faces in photos meaningless. Moreover, the notion that the disclosure of the officers’ faces somehow makes it likely that criminals will impersonate them is farfetched. The County’s interest in keeping the officers’ faces a secret is a veiled attempt at allowing them to commit misconduct with impunity and promotes secrecy in government in direct obstruction of the CPRA. Pet. Op. Br. at 10-11.

The County responds that photos of the deputies’ faces may be redacted under Penal Code section 832.7(b)(6) and (b)(7). If disclosed, the public would be able to use the photos to aggregate and compile any information available about an officer into a single publicly accessible database. Aguirre Decl., ¶14. This includes "doxing" -- the intentional publication of a person's private information online as part of concerted efforts to harass and harm an officer and their family. Id. The photos would contribute to websites that offer bounties or financial rewards for the killing of peace officers. Id. The rapid advancement of facial recognition programs and artificial intelligence technology creates an even greater risk because the photos could be used to scan databases and pull up deputies’ personal information. Id. Thus, there is a significant danger to their physical safety if the photos of deputies’ faces are released. Penal Code §832.7(b)(6)(D). Opp. at 13.

Further, the public interest served by not disclosing the un-redacted photos clearly outweighs the public interest served by disclosure of the un-redacted photos. The public interest in non-disclosure includes: (1) public safety, because accessibility to the photos would make it substantially easier for criminals to create fake ID cards, impersonate an officer, and commit crimes; (2) maintaining effectiveness of plain clothes surveillance, because disclosure of the photos would allow the public to recognize peace officers while they are conducting surveillance operations in plain clothes, thwarting and hampering these investigative techniques; (3) maintaining undercover officer anonymity, because disclosure of non-undercover officers' names and photos could reveal who is currently working undercover by comparing that information to the names of officers whose salary information is publicly available and maintained on the Transparent California website; (4) future undercover operations' effectiveness, because disclosure of the photos precludes officers who are currently not working undercover from doing so in the future because their photos could be stored for future use and immediate real-time identification, and therefore their identities as officers would be known to the public; (5) retention and recruitment of officers, because public exposure of one's image and identity as an officer would inevitably hamper LASD's efforts to retain sworn personnel and recruit deputy applicants given the increased safety concern; and (6) multi-agency task forces' effectiveness, because disclosure of the photos risks compromising ongoing and future investigative task forces (including state and federal) in which LASD personnel are embedded. Opp. at 13-14.

The County’s arguments are the very speculation of threat that is foreclosed under the CPRA. Petitioners correctly reply that it is unreasonable to redact the photos of deputies’ faces where there is no specifically identifiable threat. Reply at 5. Additionally, the prospect that publication of a person's private information online will be made as part of concerted efforts to harass and harm him or her and their family is an unfortunate aspect of public employment. It is not a separate basis to prevent publication of photographs of already identified deputies. The County must disclose unredacted photos of the deputies identified to Petitioners.

The County argues that the work and training history of LASD deputies may be redacted under Penal Code section 832.7 (b)(6) and (b)(7). This information is part of confidential peace officer personnel records that were not made subject to disclosure by SB 1321 or 16. Moreover, the public interest served by maintaining officer privacy related to their work and training history -- such as maintaining officer morale and recruitment efforts -- clearly outweigh the public interest served by disclosure of the information, which does not shed light on the Incident in question. Opp. at 14.

Petitioners do not address this issue and the court agrees with the County. This information on the work and training history of identified deputies may remain redacted.

Section 7923.625 provides that, notwithstanding any other provision of the CPRA, a video or audio recording that relates to a critical incident may be withheld during an active criminal or administrative investigation if disclosure would substantially interfere with the investigation, but disclosure of the recording may be delayed for no longer than 45 days. §7923.625(a)(1). After 45 days, the agency may continue to delay disclosure for up to one year from the incident date if it demonstrates that disclosure would substantially interfere with the investigation. After one year, the agency may continue to delay disclosure only if it demonstrates by clear and convincing evidence that disclosure would interfere with the investigation. The agency shall promptly inform the requester in writing the specific basis for this determination and provide the estimated date for disclosure. The agency shall reassess the withhold and notify the requester every 30 days. §7923.625(a)(2).

Additionally, if the agency demonstrates that the public interest in withholding an audio or video clearly outweighs the public interest in disclosure because it would violate the reasonable expectation of privacy of a subject depicted in the recording, the agency shall inform the requester in writing the specific basis therefore and may redact to obscure the specific portions of the recording that protect that interest. §7923.625(b)(1).

Petitioners argue that the County refused to produce unredacted photos of license plates, neighbors’ faces, and house numbers unless Petitioners agree to indemnify the County if it is sued for invasion of privacy, which is extremely unreasonable. Just because someone may file a frivolous lawsuit against the County does not mean that Petitioners should have to pay for their defense. There is no expectation of privacy in areas which are in public view. See Dillon v. Superior Court, (1972) 7 Cal.3d 305, 311; People v. Claeys, (2002) 97 Cal.App.4th 55, 59. There also is no intrusion into a person’s privacy when they are photographed or videotaped in public view. See Sanders v. American Broadcasting Co, Inc., (1999) 20 Cal.4th 907, 914; Aisenson v. American Broadcasting Co., (1990) 220 Cal.App.3d 146, 163. Pet. Op. Br. at 10-11.

Penal Code section 832.7(b)(6)(B) and (C) include among the few permissible reasons for an agency to redact a record or video upon disclosure the preservation of “the anonymity of whistleblowers, complainants, victims, and witnesses,” and protection of “confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about possible misconduct and use of force by peace officers and custodial officers.” A reasonable expectation of privacy is founded on “broadly based and widely accepted community norms.” The expectation must be reasonable in light of any “competing social interests involved.” Sheehan v. San Francisco 49ers, Ltd., (2009) 45 Cal.4th 992, 1000. To establish a reasonable expectation of privacy, one must conduct himself or herself in a manner that is consistent with the claimed expectation of privacy. Id. The presence or absence of opportunities for a person’s consent to alleged infringement on privacy rights affects the reasonableness of their expectation of privacy. TBG Ins. Services Corp. v. Sup.Ct. (Zieminski), (2002) 96 CA4th 443, 449; see also Hill v. National Collegiate Athletic Ass'n, (1994) 7 Cal.4th 1, 37. Reply at 5-6.

Petitioners argue that none of the potential witnesses whose license plates, curbs, and/or faces were captured in any of the footage released by LASD had a reasonable expectation of privacy or confidentiality in these subjects insomuch as they freely exposed them to public view in the public domain and made no obvious attempts to prevent their foreseeable appearance in body camera footage by deputies. Moreover, much of the released footage is from street-facing private security cameras in the neighborhood and reflects community expectations that one’s face, car, or curb might be captured on their neighbors’ “Ring” doorbell camera. Finally, the countervailing interests of the public in identifying potential witnesses to a police killing are unmatched. Reply at 6.

The issue is statutory protection, not constitutional privacy. Penal Code section 832.7(b)(6)(A) states: “An agency shall redact a record disclosed pursuant to this section…[t]o remove personal data or information, such as a home address, telephone number….” Neighbors’ home address numbers and license plate numbers may be redacted under Penal Code section 832.7(b)(6). These neighbors may not have an expectation of privacy in their home address and telephone number displayed on a Ring camera, but Penal Code section 832.7(b)(6)(A) expressly authorizes the redaction of this information.

The same is true for photos of the faces of neighbors and third parties. Penal Code section 832.7(b)(7) states that “Notwithstanding paragraph (6), an agency may redact a record disclosed pursuant to this section, including personal identifying information, where, on the facts of a particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by the disclosure of the information.” The protection of third parties’ confidentiality outweighs the public interest served by disclosure of such information. The neighbors’ home addresses and related information fall under this category. There is nothing to be gained by publicly disclosing photos of third parties not involved in the incident. Petitioners’ argument that there is a public interest in disclosure of potential witnesses to the shooting is relatively weak where there is no reason to believe that any depicted person witnessed the incident. This information may remain redacted.

Petitioners note that peace officer records generally can only be redacted to remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace officers and custodial officers, to preserve the anonymity of complainants and witnesses, to protect confidential medical, financial, or other information in which disclosure would cause an unwarranted invasion of personal privacy, and “[w]here there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person. Penal Code §832.7 (b)(6)(A)-(D). Pet. Op. Br. at 11.

The County refuses to release any information about one deputy who was involved in the incident because his safety is allegedly at risk. These safety concerns involve the fact that he is an undercover officer, and that there is a suspect whose brother he arrested ten years ago who is trying to find and kill him. The fact that this deputy is an undercover officer should not give him or her a blank pass to commit misconduct for which he cannot be held accountable, especially if that misconduct involves the unlawful use of deadly force. If he has a history of misconduct, then he should not be an undercover officer or an officer at all. The public has a strong and compelling public interest in uncovering any misconduct of this deputy particularly because this incident involves the potentially unlawful use of force that resulted in Christopher Mosco’s death. Moreover, exposing the deputy’s name and/or badge number would not compromise his safety because presumably none of the suspects in the cases on which he is undercover would ever know to look for his real name. Pet. Op. Br. at 11-12.

The County responds that Petitioners do not discuss the details in the County’s custodian of records declaration provided to them on January 9, 2024. Sheldon Decl., ¶11, Ex. F. As stated in the declaration, the officer at issue will be testifying in federal court as the investigating officer against certain arrested crime family members who face almost 200 years in federal prison and have extensive ties in County to retaliate against and/or prevent the officer from testifying at trial. Opp. at 12.

This alone provides no basis to conclude that the officer’s identity should be redacted. The County does not explain when the officer will be testifying in the federal case, but it is clear that he will do so because he is the investigating officer. At some point then, his identity will be known to the defendants. Moreover, there has been no specific threat to the officer, and it is speculation to suggest that he would be at risk if his identity is revealed as an officer involved in the incident concerning Christopher Mosco.

The County also presents evidence that, about ten years ago, LASD's Major Crimes Bureau investigated and concluded that a suspect was searching for the same LASD peace officer's house in order to kill him, and followed LASD employees who physically resembled the LASD peace officer home from the LASD station. The suspect was ultimately arrested as a felon in possession of a firearm at a shooting range where the suspect wrote the LASD officer's name and imagined likeness on targets and shot them. The suspect was recently released from federal prison and could continue his vendetta against the LASD officer. Sheldon Decl., ¶8, Ex. F. Opp. at 12.

These are specific and particularized facts of a threat. While the passage of ten years mitigates the threat, the court will not conclude it does not remain real. Based on safety concerns for the peace officer, and because Petitioners do not show that the officer had any specific involvement in the Christopher Mosco incident, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of information about him or her. Penal Code §832.7(b)(7). Any redacted identifying information for the undercover officer may remain redacted.

A petitioner who prevails in a CPRA case is entitled to court costs and attorney fees. §7923.115(a). Fees and costs are mandatory if the plaintiff prevails. Filarsky v. Superior Court, (2002) 28 Cal.4th 419, 427. A plaintiff prevails in litigation under the CPRA if the litigation motivated the defendant to release the requested documents. Motorola Commun. & Electronics v. Dep’t of General Servs., (“Motorola”) (1997) 55 Cal.App.4th 1340, 1344. This is true if the action compelled the defendant to produce even one document. Although CPRA does not define “prevailing party”, the courts have construed this term to have a meaning similar to a “successful party” under CCP section 1021.5. See Belth v. Garamendi, (1991) 232 Cal.App.3d 896, 901-02 (if plaintiff's lawsuit induced defendant's response, was material factor, or contributed in a significant way to the result achieved, then plaintiff has shown the necessary causal connection).

Petitioners contend that their Petition resulted in LASD releasing previously withheld documents. The timing of disclosure alone may be sufficient to determine whether the plaintiff is a “prevailing party” (Motorola, supra, 55 Cal.App.4th at 1340), and the timing is clear: the County did not release any records until after Petitioners filed the Petition. In addition, LASD’s purported justification of an ongoing criminal investigation for its repeated refusals to produce records was meritless. The only investigation the County may have done was whether Christopher Mosco had assaulted a police officer, a moot point because they could not charge him with a crime after killing him. Since the County was not investigating any crime that could be charged, it had no legitimate justification for withholding the records for two years after Petitioner’s initial request. Pet. Op. Br. at 13.

The court disagrees. The evidence shows that the County intended to produce all responsive records when the delay provisions for an ongoing and active criminal investigation no longer were applicable. While Petitioners dispute the period in which delay was reasonable, they do not show that their Petition triggered the County’s disclosure. Since the County was justified in temporarily withholding and then redacting the released records, Petitioners’ claim for attorney fees on this ground fails.

However, Petitioners have caused disclosure of unredacted photos of the LASD officers involved in the incident. They are entitled to apportioned fees for this disclosure.

The Petition is granted in limited part. The County is ordered to disclose photos of the officers involved in the incident within 30 days. Petitioners may make a fee motion apportioned for this disclosure. The parties are ordered to meet and confer to try and reach an agreement on the apportioned fees.

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

[2] The Legislature has confirmed that the 2023 changes in recodifying the CPRA were not intended to substantively change the law relating to inspection of public records. §7920.100.

[3] Section 7923.600(a) does not involve a public interest balancing test. The courts have consistently refused to apply additional criteria to CPRA exemptions that are not explicitly provided in the statute. See Williams, supra, (1993) 5 Cal.4th 337, 354 (“The Legislature has carefully limited the exemption for law enforcement investigatory records … It is not our task to rewrite the statute.”).

[4] Section 79623.625 is addressed post with respect to redactions.