Judge: James C. Chalfant, Case: 23STCP02244, Date: 2024-06-13 Tentative Ruling

Case Number: 23STCP02244    Hearing Date: June 13, 2024    Dept: 85

Petitioner Sergio Garcia (“Garcia”) seeks a traditional writ of mandate commanding Respondents City of Los Angeles (“City”) and Los Angeles Police Department (“LAPD”) to comply with the California Public Records Act (“CPRA”). 

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner Garcia filed the Petition on June 27, 2023 against Respondents City and LAPD, alleging causes of action for violation of (1) the CPRA (Government[2] Code § 6259, et seq.) and (2) the California Constitution, art. 1, section 3(b).  The Petition alleges in pertinent part as follows.

On January 13, 2019, Garcia submitted two requests to LAPD’s Risk Management and Legal Affairs Division (“RMLAD”) for records pertaining to 13 former LAPD officers for dishonesty, officer-involved shootings (“OIS”) or serious use-of-force (“UOF”) resulting in serious injury or death, or for committing sexual acts against a member of the public.  Pet., ¶¶ 24, 52; Exs. A, X.  All the records requested fall within the definition of public records set forth in the CPRA.  Pet., ¶¶25, 52.

On January 16 and 17, 2019, LAPD requested a 14-day extension of time to respond to Garcia’s records request and opened a portal for public visibility: NextRequest #19-233 and NR#19-234.  Pet., ¶¶26, 54.  LAPD has not timely or adequately produced responsive records. 

Garcia seeks mandamus compelling the City to perform a prompt and diligent search and provide him with the requested records or, in the alternative, show cause why the records should not be ordered disclosed.  Prayer at a.  Garcia also seeks a declaration that the City has violated the CPRA and California constitution by refusing to produce records and failing to properly assist Garcia with his requests.  Prayer at c.  Garcia further seeks an award of costs.  Prayer at d.

2. Course of Proceedings

On July 24, 2023, Respondent City filed an Answer.

B. Standard of Review

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.  

C. Governing Law

1. The California Constitution

            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). 

            2. The CPRA

The CPRA, located at section 7920 et seq. (formerly 6250 et seq.)[3] 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 seeks disclosable public records, the agency shall also state the estimated date and time when the records will be made available.   §7922.535(a).  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.  §7922.530(a).  There is no deadline expressed in a number of days for producing the records.  Rather, section 7922.530 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.

3. Exemptions

            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.

a. Penal Code Section 832.7

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). 

b. Section 7927.700 (Employee Confidential Information)

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”). 

4. Enforcement

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).

D. Statement of Facts[4]

1. Petitioner’s Evidence

Garcia submitted CPRA requests to the City and LAPD for records related to police misconduct and uses of force disclosable by SB 1421.  Garcia Decl., ¶¶2-3.  Garcia filed the instant lawsuit four years and six months later.  Garcia Decl., ¶3.

Garcia submitted numerous external messages through NextRequest (“NR”) in an attempt to resolve or narrow the scope LAPD’s search for SB 1421 records.  He expressed concern about  timing and asked LAPD to provide an estimate for completion of production of SB 1421 records.  Garcia Decl., ¶5. 

Communications With Escalante and Garcia’s Complaints

Garcia initiated communication by telephone on June 18, 2019 and spoke with Detective III Diane Escalante (“Escalante”) to determine the reason why LAPD was not complying with his records request.  Garcia Decl., ¶6.  He asserted that LAPD possessed the 15 police officers’ personnel files containing OIS, Internal Affairs Division (“IAD”) case files involving sustained complaints of dishonesty, use of force (“UOF”), and sexual acts.  Garcia Decl., ¶6.  Garcia provided Escalante with the OIS case file numbers and IAD case numbers and names and serial numbers of the 15 officers.   Garcia Decl., ¶6.  He asserted that LAPD was making false contentions that the case files had not been located for four of the officers.  Garcia Decl., ¶6.  Escalante informed Garcia that in two to three months he would be receiving the SB 1421 records for the officers, including but not limited to: photographs of the crime scenes, mug shots, search warrants, depositions, witness statements, felony complaint and arrest reports.  Garcia Decl., ¶6, Ex. E (providing case file numbers and stating that she was unable to provide production date for sustained dishonesty records).

On October 4, 2019, Garcia submitted an External Message in portal NR #19-5731 to then Lieutenant II Brian O’Conner (“O’Conner”), asserting that Escalante had been dishonest, he was being denied disclosable records, and he was being racially discriminated against.  Garcia Decl., ¶7, Ex. I.  O’Conner refused to respond.  Garcia Decl., ¶7.

On March 6, 2020, Garcia submitted an email to then Captain III Bryan D. Lium (“Lium”), asserting that he had made repeated CPRA records requests and asking where his records were.  Garcia Decl., ¶8, Ex. J.

On March 7, 2020, Garcia was informed by neighbors that an “army of LAPD thugs” attempted to break into his condominium building and threatened neighbors to open the door.  Garcia Decl., ¶9.  Garcia’s former neighbor, Leo, who later suffered a heart attack and died, told Garcia he was threatened by Robbery-Homicide Division (“RHD”) Detective Martin Mojarro (“Mojarro”).  Garcia Decl., ¶9.  Another neighbor witnessed Mojarro attempting to make forcible entry into Garcia’s condominium unit, causing damage to the door frame.  Garcia Decl., ¶9, Ex. K.  On the same day, Garcia filed a personnel complaint against Lium, Mojarro, and Escalante.  Garcia Decl., ¶10, Ex. L. 

On March 9, 2020, Garcia sent correspondence to LAPD Chief Michael Moore (“Moore”) detailing the failure to comply with his record request, expressing concern about the timing of production, and asking for LAPD to provide an estimated date for completion of the production of the records.  Garcia Decl., ¶11, Ex. M.  On June 10, 2020, Garcia sent additional correspondence to Chief Moore raising the same concerns.  Garcia Decl., ¶12, Ex. N.

On July 21, 2020, Garcia filed a personnel complaint against Chief Moore but was never contacted nor did IAD investigate the complaint.  Garcia Decl., ¶13, Ex. O.

The Initial Production

Following these external messages and emails, LAPD produced some records for the requests.  Garcia Decl., ¶14.  LAPD shortly thereafter began to deny production of records containing sustained complaints of dishonesty, sexual acts, and any OIS for the 15 officers.  Garcia Decl., ¶14.

On March 23, 2023, Garcia sent correspondence to RMLAD Captain II Yasir Gillani (“Gillani”) detailing the failure to comply with his CPRA requests, expressing concerns about the timing of production, and asking LAPD to provide an estimated date for completion of the production of records.  Garcia Decl., ¶15, Ex. P.  Gillani refused to respond.  Garcia Decl., ¶15, Ex. P. 

The following day, March 24, 2023, Garcia made a CPRA request to Inspector General Mark P. Smith (“OIG”) for records including any and all electronic messages, or emails, of all LAPD OIG and the Board of Police Commissioners regarding NR 19-233 and 19-234 from January 13, 2019 to the present.  Garcia Decl., ¶16.

Post-Lawsuit Communications

On May 6, 2023, Garcia sent Chief Moore correspondence detailing the failure to comply with his CPRA records request and a notice that he had filed a verified Petition for Writ of Mandate.  Garcia Decl., ¶17, Ex. Q.

On May 18, 2023, the OIG sent some records in response to Garcia’s request.  Garcia Decl., ¶18.  In an email exchange dated January 17, 2023, Inspector General Smith informed his Aide, Sergeant II Joseph G. Fransen (“Fransen”), that the Threat Management Unit (“TMU”) was notified to spy, surveil, and monitor Garcia.  Garcia Decl., ¶18, Ex. FF.  The following day, Garcia filed a personnel complaint against Fransen, detailing that Fransen stated to Garcia: “Okay, I am going to discontinue this call and I am going to contact the threat management unit and have you killed.”  Garcia Decl., ¶19, Ex. R.  Garcia was never contacted nor did IAD investigate this complaint.  Garcia Decl., ¶19.

On May 20, 2023, Garcia made a fifth SB 1421 CPRA request, RN 23-5251, to the TMU seeking records of spying, conducting surveillance, and a background check on Garcia.  Garcia Decl., ¶20, Ex. EE.  The TMU refused to comply with this request.  Garcia Decl., ¶20.

On June 13, 2023, RMLAD Officer-in-Charge Lieutenant Eric R. Quan (“Quan”) sent Garcia correspondence that it was unable to locate responsive disclosable records for 11 of the 15 former LAPD officers.  Garcia Decl., ¶21, Ex. D.  Lt. Quan stated that LAPD would conduct another search to locate responsive records and search would not be complete until on or about September 7, 2023.  Garcia Decl., ¶21. Ex. D.

On the same day, Garcia sent correspondence to Lt. Quan asserting that records for all 15 former officers exist and are in the possession of LAPD.  Garcia Decl., ¶22, Ex. S.  The following day, Lt. Quan consented to a taped-recorded conference wherein Garcia asserted that he was in possession of some of IAD’s criminal investigation of the LAPD 1980 Hollywood burglary scandal containing more than 3500 records of the 13 officers in request RN 19-233.  Garcia Decl., ¶23.  LAPD had these records but was refusing to comply.  Garcia Decl., ¶23.  This recorded call was memorialized in an email correspondence with Lt. Quan wherein Garcia attached exhibits of unredacted IAD records to prove they exist and are in the LAPD’s possession.  Garcia Decl., ¶23.  Garcia also asserted the LAPD was in possession of IAD criminal investigation records for Richard Herman Ford and Robert Anthony Von Villas which contained records of dishonesty and OIS records for request RN 19-234.  Garcia Decl., ¶¶23-24, Exs. B-C, T. 

On June 15, 2023, Garcia sent an email correspondence to Captain Gillani attaching the same exhibits as well as the June 14, 2023 email correspondence with Lt. Quan.  Garcia Decl., ¶25, Ex. U.

On October 5, 2023, the parties appeared at a Trial Setting Conference wherein Park argued that LAPD needed six more months to comply.  Garcia Decl., ¶29.  The court ruled that the City and LAPD had four months to comply, on or before February 1, 2024.  Garcia Decl., ¶29.

On October 17, 2023, Garcia emailed Deputy City Attorney Howard Park (“Park”) to meet and confer on the issues raised in the Petition.  Garcia Decl., ¶26.  The next day Park responded that “we would not be able to meet until mid-November due LAPD scheduling conflict.”  Garcia Decl., ¶26, Ex. V. 

On December 14, 2023, Garcia met and conferred with Park in an attempt to resolve and narrow the scope of the search.  Garcia Decl., ¶27.  He was made aware by Park that RMLAD Det. III Sheryl Rush (“Rush”), assigned to releasing of SB 1421 records, refused to meet and confer with Garcia.  Garcia Decl., ¶27.  In the meet and confer, Garcia allowed Park access to review the 3500 pages of IAD records confirming that LAPD is in possession of the SB 1421 records and not complying.  Garcia Decl., ¶27.   Park reviewed the IAD records and at one point was shocked and stated: “Why did they redact the DR No.?”  Garcia Decl., ¶27.  Garcia expressed his concern about the timing of production and asked for an estimated date for completion of the production of SB 1421 records.  Garcia Decl., ¶27.

On December 18, 2023, Garcia submitted an email to Park memorializing his concerns: (1) LAPD was “intentionally and willfully” refusing to comply with his SB 1421 requests; (2) LAPD had gone to great lengths to retaliate and racially discriminate against him; and (3) Detective Rush retaliated by refusing to meet and confer with him. Garcia Decl., ¶28.  Park emailed the same day and indicated: “I plan to meet with LAPD again soon and redouble our efforts to make sure we are doing the best we can to comply with CPRA.”  Garcia Decl., ¶28, Ex. W.

On February 1, 2024, the parties appeared before Judge Mitch Beckloff at a Trial Setting Conference.  Garcia Decl., ¶30.  LAPD had not produced any SB 1421 records and informed the court it needed two more months to comply.  Garcia Decl., ¶30.  Garcia objected, citing a history in which LAPD intentionally failed to complete and obstructed production of the requested records.  Garcia Decl., ¶30.  Judge Beckloff set a trial date and briefing schedule.  Garcia Decl., ¶30. 

To date, the requested records have not been produced on a rollout basis and LAPD denies the records exist.  Garcia Decl., ¶31.  LAPD has not searched or produced any of the responsive records since the lawsuit was filed.  Garcia Decl., ¶31.  LAPD is retaliating and racially discriminating against Garcia because he filed personnel complaints for refusing to comply with his CPRA requests.  Garcia Decl., ¶31.

2. City’s Evidence

SB 1421 and SB 16

In 2019, SB 1421 amended Penal Code section832.7 to make the following four categories of records disclosable in response to a CPRA request: those relating to an OIS, a UOF resulting in death or great bodily injury, a sustained incident of dishonesty, and a sustained incident of sexual assault.  Rush Decl., ¶2. 

In 2022, Penal Code section 832.7 was amended again by SB 16, which made four more categories of records disclosable: sustained findings of unreasonable or excessive force, sustained findings of failure to intervene, sustained findings of prejudice or discrimination, and sustained findings that an officer made an unlawful arrest or conducted an unlawful search.  Rush Decl., ¶2.

The SB 1421 Unit

In 2019, to respond to a flurry of CPRA requests for records disclosable pursuant to SB 1421, LAPD created the SB 1421 Unit (sometimes “Unit”) within RMLAD to process those requests. Rush Decl., ¶3.  The SB 1421 Unit's role is to identify, collect, and produce records that are subject to disclosure under Penal Code section 832.7(b)(l)(A)-(E).  The SB 1421 Unit works with the custodians of the records of the Force Investigation Division (“FID”), Critical Incident Review Division (“CIRD”), and Internal Affairs Group (“IAG”) to determine as an initial matter if a record qualifies for disclosure based on the statutory definitions in Penal Code section 832.7(b)(l)(A)-(E).  Rush Decl., ¶3.  The report packages that LAPD discloses pursuant to Penal Code section 832.7(b)(l) range between 30 pages to over 100 pages.  The disclosed reports contain various redactions that are required and/or authorized under Penal Code section 832.7(b)(6) and (7), including to maintain the anonymity of witnesses and complainants and to protect medical information.  Rush Decl., ¶3.

On December 31, 2018, LAPD received a temporary restraining order in Los Angeles Police Protective League v. City of Los Angeles, Case No. 18STCP03495, directing it refrain from enforcing or applying the SB 1421 amendments to Penal Code section 832.7 in any manner which would result in the disclosure of records regarding incidents or conduct prior to January 1, 2019.  Rush Decl., ¶4.  Until the stay was lifted on or around March 1, 2019, LAPD did not produce any such records.  Rush Decl., ¶4.

Garcia’s Requests and the Initial Search

On January 13, 2019, Garcia made two requests for personnel records and 18 complaints, including misconduct and UOF incidents, for 15 former LAPD officers.  Rush Decl., ¶5.  Specifically, NR #19-233 requested SB 1421 records for 13 former LAPD officers and NR #19-234 requested SB 1421 records for two additional officers, all of whom appeared to have separated from the LAPD long ago.  Rush Decl., ¶5.  The records requested by Garcia were very old, spanning from the l960s through the 1980s.  Rush Decl., ¶5.

The requests were initially handled by the SB 1421 Unit, which searched for, located, and provided a number of records to Garcia.  Rush Decl., ¶6.  The SB 1421 Unit tasked IAG, FID, and CIRD with conducting the searches for responsive records including complaints, OIS records, and UOF records.  Rush Decl., ¶6.  Once these documents were identified, they were to be scanned if responsive to the records request and Gracia was notified.  Rush Decl., ¶6.  The Unit was able to identify some complaint numbers, but they could not locate many documents due to their age.  Rush Decl., ¶6.

The SB 1421 Unit released records to Garcia on March 26, May 22, July 16, July 23, July 27, and August 13, 2020, on January 7, May 6, September 2, and November 10, 2021 on March 3, 2022, and on January 26 and April 17, 2023.  Rush Decl., ¶7.  The records included OIS log sheets, OIS executive summaries, and copies of 11 personnel complaints related to dishonesty.  Rush Decl., ¶7.

Rush’s Additional Search

The SB 1421 Unit conducted another search for responsive records related to the requests in May 2023.  Rush Decl., ¶¶8, 39.  Rush’s team attempted to identify OIS records based on records retention lists that have limited information about what is in the record boxes.  Rush Decl., ¶8.  Rush’s team coordinated with the Records and Identification Division (“R&I”) and the City Clerk’s Office to determine what additional record boxes might contain missing OIS records.   Rush Decl., ¶8.  The Unit requested multiple boxes with titles that appeared to be related to OIS, sometimes locating a few records potentially relevant to Garcia's request, but more often not locating any responsive records, or only locating a copy of the shooting investigation and the shooting review board determination.  Rush Decl., ¶8.

To locate additional records, the SB 1421 Unit found the names of partners of the requested officers and looked through their files to determine whether there were additional complaint numbers or reports that might be related or responsive.  Rush Decl., ¶9.  Garcia also provided some names to Rush’s team, and they searched for those names as well as their partners.  Rush Decl., ¶9.  Rush’s team was able to find reports or shooting logs for each OIS identified as subject to disclosure involving the officers Garcia requested.  Rush Decl., ¶9.  The recordkeeping for records of this age, from the 1960s through the 1980s, was somewhat disorganized and not standardized by division, making the search more difficult.  Rush Decl., ¶9. 

Multiple members of Rush’s team went to the City Clerk's Office on multiple dates to search through numerous boxes to locate the requested records, or to  identify some of the incidents for which Garcia provided little information.  Rush Decl., ¶10.  Any records identified generally had to be scanned one page at a time due to their age.  Rush Decl., ¶10.

Rush’s team further searched databases to attempt to identify and locate arrest information for suspects involved in the OIS and requested R&I to assist in searching for available microfilmed records.  Rush Decl., ¶11.  Rush’s team searched for personnel complaints and their associated addenda, which required obtaining the personnel packages from the Personnel Division (“PD”), which would request the personnel packages from an off-site record storage facility.  Rush Decl., ¶11.  Many personnel packages could not be located.  Rush Decl., ¶11.  Searches also were conducted for the personnel packages of the partners of accused officers to attempt to locate the personnel complaint and/or addenda that was missing.  Rush Decl., ¶11.  The searches included requesting boxes archived by IAG to attempt to locate copies of personnel complaints or addenda that were missing, which was unsuccessful.  Rush Decl., ¶11.  Additionally, Rush’s team requested searches by the Technical Investigation Division (“TID”), Photography Unit, to pull archived boxes with photograph negatives related to the requested incidents.  Rush Decl., ¶11.  Once any negatives were located, they had to be scanned and digitized.  Rush Decl., ¶11.

On May 16, 2023, Rush contacted CIRD to conduct additional searches to determine any OIS DR numbers related to Jack Myers or any other previously identified OIS files.  Rush Decl., ¶12.  CIRD did not have additional information but noted that one of the DR numbers had two different dates of the incident. With the additional date, Rush was able to locate additional information that potentially related to the requested OIS records.  Rush Decl., ¶12.

On May 17, 2023, Rush reviewed LAPD's records retention lists and identified five archived boxes of OIS that included the time periods for the OIS files requested by Garcia.  She received several boxes on May 18, 2023.  Rush Decl., ¶13.

On May 19, 2023, Rush contacted R&I and requested that they search for OIS files and documents, including the two alleged OIS incidents involving Jack Myers.  Rush Decl., ¶14.  R&I had files from the 1970s on microfilm but did not have records extending back to the 1960s.  Rush Decl., ¶14.

On May 25, 2023, Rush contacted FID to check for scans of documents and contacted CIRD to request searches for two former officers whose names and serial numbers she identified.  Rush Decl., ¶15.  CIRD responded that there were no responsive records for either officer, so Rush continued to review records to determine if they qualified for disclosure under any of the categories specified in Penal Code section 832.7(b)(l).  Rush Decl., ¶15.  Rush also continued to review records retention lists and search archived boxes to determine if there were additional responsive records.  Rush Decl., ¶15.

            On June 13, 2023, Rush searched the FID repository of scanned OIS records and located some additional documents pertaining to the requested records, which FID reviewed to determine if they qualified for disclosure under Penal Code section 832.7(b)(l).  Rush Decl., ¶16.

            On June 14, 2023, Rush went to the City Clerk’s office and searched through four additional boxes containing OIS records for the years of 1968, 1974, and 1977.  She located several documents potentially responsive to Garcia’s request, including several Shooting Review Board documents and reports.  Rush Decl., ¶17.

            On August 11, 2023, Rush went to the City Clerk’s Office and searched through six additional boxes of OIS records, finding a few records that were potentially responsive to Garcia’s request.  Rush Decl., ¶18.  On August 18, 2023, Rush inquired of RHD and was later informed that RHD does not have records related to the OIS incidents she requested.  Rush Decl., ¶19. 

Based on complaint numbers discovered during previous searches, on September 6, 2023, Rush’s team conducted additional searches for two complaint numbers but was unable to locate them.  Rush Decl., ¶20.  Rush’s team released records for one of the OIS incidents they did find (68-493169) on September 14, 2023.  Rush Decl., ¶20. 

On September 20, 2023, Rush requested personnel packages for seven former officers.  Rush Decl., ¶21.  PD informed Rush on September 25, 2023 that two of the packages had been located, and four more were located on September 29, 2023.  Rush Decl., ¶21.

On October 12, 2023, Rush requested from the City Clerk’s office two boxes to attempt to locate additional OIS records.  Rush Decl., ¶22.  Rush reviewed additional retention lists for the dates and information from the identified OIS numbers, and any IAG box that might be related to the complaints that they were unable to locate from personnel packages.  Rush Decl., ¶22.

            On November 22, 2023, Rush contacted FID to attempt to locate any additional documents based on additional information her team uncovered during their research.  Rush Decl., ¶23.  FID discovered one record, which Rush already had.  Rush Decl., ¶23.  No new records were located.  Rush Decl., ¶23.

            On December 8, 2023, Rush contacted IAG to see if it had copies of the 12 missing complaints or complaints with missing information.  Rush Decl., ¶24.

            On December 13, 2023, Rush went with another member of the SB 1421 team to the City Clerk’s office to review the IAG files relating to 12 of the complaints and attempted to locate additional information regarding the complaints, investigations, or related documents.  Rush Decl., ¶25.  They were unable to locate complaints or related documents.  Rush Decl., ¶25.  The City Clerk’s office assisted them in pulling additional IAG boxes for the years that may have had complaints, and they searched those entire boxes as well.  Rush Decl., ¶25.  

For nearly all the complaints, the boxes had been signed out by PD, so Rush’s team were unable to locate the files in those boxes.  Rush Decl., ¶25.  Rush requested the personnel packages from PD, which stored the records in three different off-site locations and was only able to locate eight of the 15 personnel packages for the officers requested by Garcia.  Rush Decl., ¶25.  Rush also searched nine other officers’ personnel packages who were not named by Garcia, but whose names were found in the other officers’ complaints.  Rush Decl., ¶25.

            Rush’s team was unable to locate the personnel package for Joseph Balleweg.  Rush Decl., ¶26.  Many of the personnel packages refer to Balleweg’s personnel package and notes in several officers’ personnel packages stated: “[F]ull complaint in Balleweg's package.”  Rush Decl., ¶26.  Park told Rush that Garcia told him that he (Garcia) has Balleweg’s personnel package because Balleweg gave it to him.  Rush Decl., ¶26.  Personnel in those days were permitted to check out their own personnel packages, so it is possible that Balleweg checked out his personnel package and did not return it to LAPD.  Rush Decl., ¶26.  See Park Decl., ¶¶ 3-6 (Garcia said he obtained many documents from Balleweg, who took his own personnel file before he left LAPD).

            On January 3, 2024, the team requested a status for addenda records from IAG.  Rush Decl., ¶27.  The addenda for seven complaints could not be located.  Rush Decl., ¶27.

            On February 2, 2024, Rush checked LAPD resources to attempt to locate arrest reports for two DR numbers but could not locate any records.  Rush Decl., ¶28.  Rush then requested assistance from R&I, which looked through the records on microfilm and reported on February 27, 2024, that no records were found.  Rush Decl., ¶28.  Rush also pulled the box and searched all file folders in the box, including files that did not apply to the DR number, but was unable to locate the missing records.  Rush Decl., ¶28.

            On February 6, 2024, FID notified Rush that it had located an OIS Shooting Report they thought she might be missing but was unable to locate any additional records.  Rush Decl., ¶29.  The record FID found had been previously produced.  Rush Decl., ¶29.

            On February 29, 2024, Rush went to the City Clerk's office and reviewed all documents in two boxes to attempt to locate any additional records or arrest reports related to three incidents and was unable to find responsive records.  Rush Decl., ¶30.

            On March 8, 2024, Rush contacted TID to request photographs for multiple DR numbers related to burglaries or vandalism associated with the Hollywood burglaries, spanning from the 1960s to the 1980s, in addition to the OIS incidents for which it had been unable to locate photographs.  Rush Decl., ¶31.  TID advised that it had located negatives for 5 of the 13 DR numbers requested.  Rush Decl., ¶31.  Rush’s team picked up the scanned and digitized photographs from TID on March 26, 2024.  Rush Decl., ¶31.

            Rush’s team released additional records to Garcia on August 8, August 15, August 29, September 19, November 30, and December 13, 2023, and on February 9, February 20, March 14, March 28, April 15, April 30, May 2, and May 9, 2024.  Rush Decl., ¶32.  On April 3, 2024, Rush’s team re-released the complaint with added addenda for CF81-1074 and sent the link to Garcia on April 23, 2024.  Rush Decl., ¶32.

            Nearly all the personnel complaints associated with the officers requested are related to the Hollywood Burglary incident, which involved multiple officers, numerous victim businesses, and multiple individual personnel complaints.  Rush Decl., ¶33.  Many of the personnel complaints contained numerous pages of interviews found in multiple different complaints.  Some of those interviews concerned investigation inquiries that had nothing to do with the accused allegations.  Rush Decl., ¶36.  It took a long time to determine which statements, allegations, and officer names needed to be redacted pursuant to Penal Code sections 832.7(b)(4), (5), and (6).  Rush Decl., ¶36.  Also, many of the complaint investigations and addenda included numerous references to victim business information such as name, address, and phone numbers, which had to be redacted under Penal Code section 832.7(b)(6).  Rush Decl., ¶36. 

            For NR #19-234, Rush’s team has no responsive records for OIS or personnel complaints for Robert Von Villas or Richard Ford.  Rush Decl., ¶37.  Rush’s team was unable to locate the personnel package for Robert Von Villas.  Rush Decl., ¶37.  Thus, there are no records remaining to be released for NR #19-234.  Rush Decl., ¶37.

            For NR #19-233, as of May 13, 2024, Rush’s team have searched for and located all available records pertaining to the request.  Rush Decl., ¶38.  Rush’s team is in the process of redacting photographs for five remaining DR numbers, and reviewing and redacting complaint numbers 82-102, 82-890, 82-112, 82-651, and arrest reports for 77-332542, 76-064311, 76-24 640721.  Rush Decl., ¶38.  These are the only records remaining to be released.  Rush Decl., ¶38.

            Records Produced

            Since May 2023, the SB 1421 Unit has gone through at least 26 boxes searching for records related to Garcia's requests.  Rush Decl., ¶39.  This is in addition to the numerous boxes and personnel packages searched by IAG, FID, PD, and CIRD since receiving Garcia's requests in 2019.  Rush Decl., ¶39.  LAPD has spent approximately 1,500 to 2,000 hours on Garcia’s requests since 2019, including searching for records, reviewing the records, and determining if they qualify for disclosure, and making redactions.  Rush Decl., ¶39.  LAPD spent approximately 500-600 hours searching for the records, 525-700 hours reviewing records to determine whether they were subject to disclosure, and 600-800 hours redacting records for disclosure.  Rush Decl., ¶39. 

To date, LAPD has released approximately 1,590 pages to Garcia, consisting of 1099 pages of personnel complaints and 491 pages of OIS records.  Rush Decl., ¶40.

E. Analysis

Petitioner Garcia seeks (a) a declaration that the City and LAPD violated the CPRA by improperly denying requests and delaying access to records and (b) mandamus compelling LAPD to complete production within two months from the date of the instant hearing.[5]

1. Requests Not Within Scope of Petition

Garcia presents evidence concerning three requests not within the scope of the Petition.  See Pet. Op. Br. at 9-12.  For these three requests, he seeks a declaration that the City and LAPD failed to properly respond or improperly denied the requests and an order that the City and LAPD to produce all responsive records within 30 days.  Pet. Op. Br. at 21.

Specifically, in NR 19-5731, Garcia requested “electronic messages and communication records regarding Request 19-233 and 19-234 from January 13 to the present…” and “records regarding the LAPD policy of requesting an extension of time with respect to Government Code section 6253(c), including but not limited to the LAPD manual section regarding CPRA extension of time; and any and all records and/or letters to Sergio Garcia requesting an extension of time.” 

In NR 23-3574, Garcia requested SB 1421 OIS records relating to Michael Shubin, Ronald Lawrence Venegas, Peter Chryss, and Jack Meyers, OIS records for the officer requested in NR 19-233 and 19-234, and any records from FID and IAD “for the reason of intentionally delaying and refusing to comply to Requesters Request 19-233 and 19-234…” 

In NR 23-5251, Garcia requested records of “the TMU case file” referenced in an email he had received, “records of the background investigation” conducted on himself, “records of all the TMU LAPD command staff, detectives or police officers involved in the background investigation,” and “personnel complaint records on all the TMU command staff, detectives or police involved in the TMU complete workup.” 

The City is correct that Garcia cannot litigate issues or seek relief regarding records not raised in the Petition. CCP 580(a) (“The relief granted to the plaintiff . . . cannot exceed that demanded in the complaint”).  Tsemetzin v. Coast Fed. Savings Loan Assn., (1997) 57 Cal.App.4th 1334, 1342.  As such, the court need not address requests NR 19-5731, NR 23-3574, and NR 23-5251.  See Opp. at 16-18.

2. The Timing of Disclosure

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.”

Garcia argues that the City cannot creditably claim that LAPD met the CPRA’s requirement to make records “promptly available” when it has failed to produce responsive SB 1421 records for five years and six months.  See Marken v. Santa Monica-Malibu USD, (2012) 202 Cal.App.4th 1250, 1268 n. 14 (noting “serious questions” whether a one-month delay complied with the CPRA’s mandate that agencies make records promptly available to requesters); Pasadena Police Officers Assn. v. City of Pasadena, (2018) 22 Cal.App.5^th 147, 152, n. 3 (the CPRA mandates that records “be provided promptly” and it was unclear if City’s purposeful delay to allow union to file suit was allowed under the CPRA).  Merriam Webster’s dictionary defines “promptly” as “without delay; very quickly or immediately.”  https://www.merriam-webster.com/dictionary/promptly; see also Black’s Law Dictionary (6th ed. 1990) p. 1214 (defining “promptly” as “ready and quick to act as occasion demands”).  The CPRA thus requires agencies to produce documents “very quickly,” “immediately,” and/or “without delay,” none of which could be applied to LAPD’s response or production.  Pet. Op. Br. at 13-14.

Garcia notes that LAPD has argued that compliance with the SB 1421 requests has been challenging.  Ex. D.  Yet, the Legislature already considered these concerns and accounted for them in the CPRA.  In balancing the burdens associated with the “need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request,” the Legislature determined that the agency should only have 14 extra days to respond.  §7922.535(a), (b).  While agencies have long complained about the burden attendant to compliance with the CPRA, the courts have held that agencies are required to bear the compliance burden.  See N. Cal. Police Practices Project v. Craig, (1979) 90 Cal.App.3d 116, 124 (CPRA requests “[i]nevitably impose some burden on government agencies”).  Pet. Op. Br. at 15.

Agencies also expressed concern when the Legislature was passing SB 1421.  These agencies opposed the bill, stressing the difficulties they would face in making large volumes of historical records public.  Ex. X.  Despite these clear objections, the Legislature did not choose to extend the response and production requirements in the CPRA or make any special allowance to give agencies more time.  If the City and LAPD are unhappy with the Legislature’s mandate of prompt disclosure, those complaints are properly directed to the Legislature, not this court.  See id. at 124 (“[i]f the burden becomes too onerous, relief must be sought from the Legislature”).  Pet. Op. Br. at 16.

While the law does not give LAPD additional time for compliance with SB 1421, Garcia did.  He has waited for five years and six months, receiving almost no records.  By the time this matter is heard, the litigation will have been pending for an additional year.  LAPD’s filibustering for years has frustrated a key aim of transparency laws such as the CPRA.  See Powers v. City of Richmond, (1995) 10 Cal.4th 85, 118 (George, J. concurring) (CPRA was designed to promote “disclosure of public information at a time when the material still was newsworthy or of particular importance to the plaintiff”); NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, (1999) 20 Cal.4th 1178, 1211 (delaying public access is inconsistent with “utilitarian values”).  Pet. Op. Br. at 16.

In reply, Garcia adds that, on June 27, 2023 date he filed suit, RMLAD Lt. Quan indicated that there were no responsive, disclosable records located for 11 of the officers.  Ex. D, p. 2, ¶7.  Only after the lawsuit was filed did LAPD begin producing some records.  SB 1421 Unit Detective Rush states that she has been the supervisor of the Unit since approximately June 2022.   Rush Decl., ¶1.  Therefore, she was not assigned to handle Garcia’s requests from 2019 thru 2022.  Det. Rush asserts that a year later, in May 2023, the SB 1421 Unit “assumed responsibility for conducting another reasonable search for responsive records related to NR 19-233 and NR 19-234 in May of 2023”.  Rush Decl., ¶8.   Only at that point did the SB 1421 Unit search at least 26 boxes in addition to the numerous boxes and personnel packages previously searched by IAG, FID, PD, and CIRD.  Rush Decl., ¶9.   Reply at 8.

 Detective Rush also asserts that the SB 1421 Unit began releasing records on March 26, 2020.  Rush Decl., ¶7.  This was 15 months after SB 1421 went into effect and Garcia made his request.  Detective Rush’s declaration states that LAPD incurred massive amounts of time on the requests.  These claims lack a supporting declaration from RMLAD Detective Escalante, the supervisor handling NR 19-233 and 19-234 during 2019 to 2023.  The City also omits a declaration from Lt. Quan.  Reply at 9.

Garcia has a fair argument that the City’s delay was too long over the period of the following milestones: (a) his requests on January 13, 2019; (b) his phone call with Detective Escalante in June 2019; (c) the initial release of records on March 26, 2020; (d) Lt. Quan’s statement in June 2023 that there were no more responsive records for 11 of the officers; (e) Detective Rush taking over in June 2022; and (f) Rush’s’ subsequent more extensive search.  This lengthy delay would violate the CPRA requirements for an initial response that records are subject to disclosure (§7922.535(a), (b) (former §6253(c)), for the prompt disclosure of records (§7922.530(a)), and for estimates for production (§7922.535(a)). 

Nonetheless, the City is correct that there is no remedy for delayed CPRA compliance other than to file suit.  The CPRA authorizes mandamus or declaratory relief for requestor “to enforce his or her right to inspect or receive a copy of any public record or class of public records.”  §7923.000.  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 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, supra, 171 Cal.App.4th at 126 (emphasis in original).  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).  See also Rogers v. Superior Court, (“Rogers”) (1993) 19 Cal.App.4^th 469, 483 (CPRA “provides no remedy for failure to timely comply with a request for records).

In City of Gilroy v. Superior Court, (“City of Gilroy”) (2023) 96 Cal.App.5th 818, the requester sought information about law enforcement sweeps of homeless encampments.  Id. at 825.  By the trial court hearing, the city had complied.  Id. at 833.  The requester argued that the case was not moot because the trial court had authority to grant declaratory relief that the city’s past conduct violated the CPRA.  Id.  The appellate court noted that the California Supreme Court instructed in Filarsky v. Superior Court, (2002) 28 Cal.4^th 419, 428-29, that “under the [CPRA], only a person seeking disclosure…may seek a judicial declaration regarding the agency’s obligation to disclose a document.”  Id.  The court then cited County of Santa Clara for the proposition that the sole purpose of a CPRA action is to permit the expeditious determination of the agency’s obligation to disclose records.  Id. (citation omitted).  “Since the CPRA does not provide for declaratory relief other than to determine a public agency’s obligation to disclose records, [the requester] may not seek declaratory relief under the CPRA with respect to the propriety of City’s past conduct in responding to [the requester’s] public records request.”  Id.  The court added that declaratory relief under CCP section 1060 is prospective anyway and cannot be used to redress past wrongs.  Id. at 834.

As in City of Gilroy, Garcia is complaining about LAPD’s past acts of untimely disclosure.  These acts are not remediable by declaratory relief or mandamus.  If he felt the four-year delay was untimely, his remedy was to file suit, which he has done.  But he cannot obtain a declaration that the delay violated the CPRA.

In reply, Garcia argues that this interpretation of the CPRA provides citizens with no recourse to challenge public institutions which, like LAPD, repeatedly ignore the deadlines set out in the CPRA.  Many CPRA provisions concern the timing and manner of production and the CPRA’s remedial section explicitly provides authorization for injunctive, declaratory, or writ relief.   Under the California Constitution, this remedial provision must be broadly construed because it “furthers the people’s right of access.”   Cal. Const., art. 1, §3(b)(2); see also City of San Jose, supra, 2 Cal.5th at 617 (when any portion of the CPRA is under review, the “standard approach to statutory interpretation is augmented by a constitutional imperative”).  Reply at 3.

Garcia attempts to distinguish the statements in County of Santa Clara, Rodgers, and City of Gilroy as dicta.  He argues that the County of Santa Clara court rejected an agency’s argument that the plaintiffs could not bring a taxpayer action under CCP section 526 for the agency’s failure to comply with the CPRA. 171 Cal.App.4^th at 124.  “Nowhere in the CPRA is there any language that explicitly or implicitly restricts, permits, or precludes any type of legal action ‘concerning’ public records other than whether a particular record or class of records must be disclosed.”  Id. at 130.  The court held that the plaintiff’s taxpayer claim was not brought under the CPRA and could not be restricted to its remedies.  The court affirmed the trial court’s overruling of the agency’s demurrer in favor of the claim that Santa Clara County municipalities were spending taxpayer funds to enforce policies that violate the CPRA, such as requiring requesters to state their purposes in making requests and to provide their names and driver’s licenses.  Id. at 130-31.  Reply at 4-5.

Garcia argues that, in Rogers, the plaintiff made numerous written and unwritten CPRA requests over a six- month period.  19 Cal.App.4^th at 474.  After receiving the requests, the agency made attempts to comply with the CPRA’s requirements, producing the majority of the requested information before the lawsuit was filed.  Id.  The appellate court upheld the trial court’s finding that “the City had produced the records requested in a reasonably timely manner.” Id.  The dicta in Rogers is also of limited value because it predates the passage of Proposition 59, which requires that the CPRA, along with its remedial provisions, be read broadly in favor of public access.  Cal. Const., art. I, §3.  Reply at 5.

It is true that County of Santa Clara held that the CPRA did not foreclose plaintiffs from bringing a taxpayer action under CCP section 526 for the agency’s failure to comply with the CPRA. 171 Cal.App.4^th at 124.  The court’s discussion of CPRA remedies is dicta, but it also pointed out that the California Supreme Court case of Filarksy v. Superior Court, supra, 28 Cal.4^th at 128, which held that an agency cannot file a CPRA action, expressly stated that “[t]he sole purpose of [a CPRA] action is to permit the expeditious “determination of the obligation to disclose records requested from a public agency….”  Id. at 128 (citation omitted).  Moreover, the statement in Rogers that the CPRA provides no remedies other than to compel compliance with a request for records is not dictum; the court found that the agency had complied, and therefore the timeliness issue was mooted.  19 Cal.App.4^th at 483.  The issue would not be moot if historical compliance were still at issue.  Finally, and most important, Garcia makes no effort to distinguish City of Gilroy, which held that the requester may not seek declaratory relief under the CPRA with respect to the propriety of an agency’s past conduct in responding to the CPRA request.  The City of Gilroy holding is binding on this court.

Garcia also argues that California courts frequently deal with questions of compliance with the CPRA’s mandates that do not involve the question of whether a particular record is exempt from disclosure.  See, e.g., Community Youth Athletic Center v. City of National City, (2013) 220 Cal.App.4th 1385, 1425-1430 (defendant violated CPRA by failing to conduct a reasonable search);  North County Parents Organization v. Department of Education, (1994) 23 Cal.App.4th 144, 148 (petitioner entitled to declaration about the cost of obtaining a copy of requested documents);  National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, (2020) 9 Cal.5th 488, 492 (cost of redaction not chargeable to requester); Sierra Club v. Superior Court, (2013) 57 Cal.4th 157, 161-62 (database of land parcels in geographic information system file format was disclosable public record).  Reply at 4.

All these cases are consistent with the holdings in County of Santa Clara and City of Gilroy that the CPRA provides no judicial remedy for any purpose other than to determine whether a particular record or class of records must be disclosed.  Each concerned the forward-looking process of disclosure of a type of record, the need to search for more records, or the cost of producing the record.  None supports a conclusion that relief is available for an historical violation of the CPRA.

Finally, Garcia argues that “recent” decisions have found that production is insufficient to moot questions presented regarding other statutory relief or an agency’s compliance with the statute, citing a a case involving attorney fees (Galbiso v. Orosi Public Utility District, (2008) 167 Cal.App.4th 1063, 1087), a case denying mootness because it was made under CRC 6.702 and not the CPRA (Orange County Employees Association, Inc. v. Superior Court of Orange County (2004) 120 Cal.App.4th 287, 294), a case denying mootness after records were disclosed before mandamus heard in court of appeal because attorney fees would be at issue (Fairley v. Superior Court, (1998) 66 Cal.App.4th 1414, 1419), and a non-binding federal district court case.  Reply at 6.  None of these cases has any bearing on the holding in City of Gilroy.

Garcia has no remedy for untimely compliance other than his lawsuit to compel compliance. 

3. The Reasonableness of the Search and Records to be Disclosed

Garcia’s opening brief does not challenge the reasonableness of LAPD’s search under Detective Rush.  Nor does he challenge any of LAPD’s redactions.[6]  Instead, Garcia makes only a general argument that LAPD refused to turn over SB 1421 records.  The City states that it has disclosed or is in the process of disclosing all records that do not meet an exemption for NR 19-233 and NR 19-234.  Rush Decl., ¶39.[7]  Garcia has not identified records that he believes LAPD has located and is withholding.  Garcia does not meet his burden by generally claiming that the City is withholding SB 1421 records.

Garcia argues that the identities and work assignments of officers are public and cannot be hidden by unsupported claims of exemptions.  He requested under SB 1421 any OIS for the 15 former LAPD officers.  While the officers may have been ultimately investigated and possibly disciplined for their conduct in connection with an incident, the names or the fact that they are SB 1421 OIS are not “records generated in connection with the that appraisal or discipline….” Long Beach Police Officers Assn. v. City of Long Beach, (“Long Beach”) (2014) 59 Cal.4^th 59, 71; see also New York Times Co. v. Superior Court, (1997) 52 Cal.App.4th 97, 99 (CPRA mandated disclosure of the names of peace officers who fired shots at a citizen); 91 Ops.Cal.Atty.Gen. 11, 16–17 (2008) (“a response to a request just for the names of officers involved in a particular incident may be provided without revealing any investigatory or disciplinary matter that may have arisen out of the incident”).  The officer’s name is part of the factual information that must be disclosed.   Long Beach supra 59 Cal.4th at 72.  California law requires that uniformed peace officers wear identification. Penal Code § 830.10.  LAPD policy requires that officers must possess business cards, which must be presented to member of the public on request.  Those business cards include the complete name of the officer, as well as the “Area/division or detail to which they are assigned.”  Ex. DD, p. 4 (Department Manual). Pet. Op. Br. at 19-20.

It is not clear why Garcia makes this argument about officer identity.  He does not allege that the City has withheld identities and work assignments of any officers. 

Garcia provides evidence that he possesses files containing “SB 1421 records of the thirteen officers” from his request in NR 19-233, but his possession of records does not mean LAPD has the same records.  Rush’s team was unable to locate the personnel package for Joseph Balleweg.  Rush Decl., ¶26.  Many of the personnel packages refer to Balleweg’s personnel package; notes in several of the other officers’ personnel packages stated “full complaint in Balleweg's package.”  Rush Decl., ¶26.  Park told Rush that Garcia told him that he (Garcia) has Balleweg’s personnel package because Balleweg gave it to him.  Rush Decl., ¶26.  Personnel in those days were permitted to check out their own personnel packages, so it is possible that Balleweg checked out his personnel package and did not return it to LAPD.  Rush Decl., ¶26.  See Park Decl., ¶¶ 3-6 (Garcia said he obtained many documents from Balleweg, who took his own personnel file before he left LAPD).

Garcia replies that on June 18, 2019, he provided Detective Escalante with SB 1421 records containing IAD case files of former LAPD Sergeant Balleweg that also contained case files of the 12 former LAPD officers.  Garcia Decl., ¶6.  The IAD case files that Detective Rush asserted she could not verify remarkably were later authenticated by LAPD in releasing the same records.  On December 14, 2023, in a meet and confer with Park, Petitioner brought 3,500 plus IAD records of the Hollywood burglary investigation which he allowed Park to inspect and authenticate.  Park took extensive notes about Garcia’s cogent objections about the heavy redactions of SB 1421 records and concerns that LAPD had not produced all SB 1421 records.  Det. Rush refused numerous invitations to meet and confer with Garcia to resolve and narrow the scope of the search of SB 1421 records and all the outstanding issues in this matter.  Garcia Decl., ¶¶ 27-28.  Reply at 11.

These facts do not undermine Detective Rush’s declaration.  More important, they fail to show that LAPD is withholding any particular record or class of records.  Nor do they even suggest that the ultimate search by Detective Rush’s team was unreasonable.

Garcia does correctly reply that there is no dispute that LAPD has not produced all nonexempt material.  LAPD also has failed to “state the estimated date and time when the records will be made available,” and refuses to do so to this day.  Reply at 9-10.

For NR #19-234, Rush’s team has no responsive records for OIS or personnel complaints for Robert Von Villas or Richard Ford.  Rush Decl., ¶37.  Rush’s team was unable to locate the personnel package for Robert Von Villas.  Rush Decl., ¶37.  Thus, there are no records remaining to be released for NR #19-234.  Rush Decl., ¶37.

            For NR #19-233, as of May 13, 2024, Rush’s team have searched for and located all available records pertaining to the request.  Rush Decl., ¶38.  Rush’s team is in the process of redacting photographs for five remaining DR numbers, and reviewing and redacting complaint numbers 82-102, 82-890, 82-112, 82-651, and arrest reports for 77-332542, 76-064311, 76-24 640721.  Rush Decl., ¶38.  These are the only records remaining to be released.  Rush Decl., ¶38.

The City will be ordered to complete this process and produce the remaining records to Garcia in 30 days.

F. Conclusion

The Petition is mostly denied.   It is granted in the limited part that the records identified for NR #19-233 must be produced in appropriate redacted form within 30 days.