Judge: Mary H. Strobel, Case: 19STCP04367, Date: 2022-12-06 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 19STCP04367    Hearing Date: December 6, 2022    Dept: 82

Petitioner Brian K. McCoy (“Petitioner”) petitions for a writ of mandate directing Respondents County of Los Angeles and Alex Villanueva, Sheriff (“Respondents” or “County”) to produce the records and information that are responsive to two requests made by Petitioner pursuant to the California Public Records Act (“CPRA”).       

Background

Petitioner’s CPRA Requests

On or about January 18, 2019, and February 21, 2019, the Los Angeles County Sheriff’s Department (“LASD”) Discovery Unit received two CPRA requests submitted by Petitioner seeking seven categories of records, specified below:

1. The results of the LASD’s investigation of Service Comment Report # 246868;

2. Arrest records/incident report for File # 492-00598-2516-181;

3. Arrest report/chronological log book for File # 092-00481-2517-011;

4. The LASD’s “Brady List;”

5. “… records of any misconduct complaints filed against Richard Graves, John Haynes and Brian Doyle while employed as police officers for the Los Angeles Sheriff’s Dept., Lynwood Division, including but not limited to complaints of false arrest, falsifying evidence, threatening or intimidating witnesses and police coercion”;

6. “… records of any disciplinary proceedings and/or recommendations for discipline against Richard Graves, John Haynes and Brian Doyle while employed as police officers for the Lynwood sheriff’s department”;

7. “…records of any confirmed discipline imposed against Richard Graves, John Haynes and Brian Doyle as a result of any misconduct complaints filed against said detectives/deputies while employed as police officers for the Los Angeles Sheriff’s Dept., Lynwood Division.”

(Opening Brief (“OB”) 6-7 and Exhibits thereto; Aguirre Decl. ¶ 3.)

Petitioner’s request disclosed that he was the subject of the arrest records requested for Requests Nos. 2 and 3.  (See First Amended Petition (“FAP”) Exh. B.)  The opening brief also indicates that those arrests occurred in 1992.  (OB 4-6.)

On or about January 24, 2019, and March 1, 2019, LASD responded to Petitioner’s CPRA requests and informed Petitioner that LASD had no responsive records for Request No. 2; and that the records sought for the other requests are exempt from disclosure.   (OB 6-7 and Exh. D, E; Oppo. 2.) 

Writ Proceedings

            On April 17, 2019, Petitioner, in pro per, filed the original petition.  On or about January 27, 2020, Petitioner filed the first amended petition. 

            On September 28, 2021, the court held a trial setting conference, which was attended by Petitioner and counsel for Respondent.  The court set the petition for hearing on July 19, 2022, and set a briefing schedule. 

            On May 24, 2022, the court granted Petitioner’s motion to continue the trial date.  The court continued the hearing on the writ petition to November 8, 2022, and set a briefing schedule. 

            On September 8, 2022, Petitioner timely filed his opening brief.  On October 7, 2022, Respondents timely filed and served an opposition.  No reply has been received.  The reply was due October 24, 2022, pursuant to the briefing schedule set on May 24, 2022.

Summary of CPRA; and Burden of Proof

Pursuant to the CPRA (Gov. Code § 6250, et seq.), individual citizens have a right to access government records.  In enacting the CPRA, the California Legislature declared that “access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.”  (Gov. Code, § 6250; see also County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 63.)  The CPRA defines “public records” as follows:

(e) “Public records” includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.  (Gov. Code § 6252(e).)

Government Code section 6253(b) states that “each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available.”  Section 6253(a) also states: “Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” 

Article 1, Section 3(b) of the Constitution affirms that “[t]he people have the right of access to information concerning the conduct of the people’s business.” The Constitution mandates that the CPRA be “broadly construed,” while any statute “that limits the right of access” must be “narrowly construed.”  (See Nat’l Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488, 507.)  The CPRA “does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.” (Gov. Code § 6257.5.) 

As the party seeking a writ directing compliance with the CPRA, Petitioner has the burden to show that County did not produce responsive records within its possession or control or did not provide a response that complies with the CPRA.  (See generally California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154 [petitioner has burden of proof under CCP section 1085].)  However, to the extent County has withheld responsive records, County has the burden to justify the withholdings based on a CPRA exemption.    (Sacramento County Employees’ Retirement System v. Superior Court (2013) 195 Cal.App.4th 440, 453; ACLU of Northern Cal. v. Sup.Ct. (2011) 202 Cal.App.4th 55, 83-86.) 

Analysis

Summary of Applicable Law – Public Records Act Requests Related to Law Enforcement Investigatory Files, Records of Investigation, and Peace Officer Personnel Records

Government Code Section 6254(f)

Government Code section 6254(f) generally exempts from disclosure “records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of … any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.” 

Subject to this general rule of exemption, section 6254(f) also requires law enforcement agencies to disclose certain information from investigatory records “except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation.”  (See § 6254(f)(1)-(4).)) 

“In summary, subdivision (f) … (1) articulates a broad exemption from disclosure for law enforcement investigatory records, (2) requires law enforcement agencies to provide certain information derived from the records about the incidents under investigation, and (3) permits the withholding of information that (a) would endanger the safety of a witness or other person, (b) would endanger the successful completion of an investigation, or (c) reflects the analysis or conclusions of investigating officers.”  (Williams v. Sup.Ct. (1993) 5 Cal.4th 337, 349; see also American Civil Liberty Union v. Superior Court (2017) 3 Cal.5th 1032, 1041.)

            Penal Code Section 832.7

“Before its amendment in 2018, section 832.7 made certain peace officer records and information confidential and nondisclosable in any criminal or civil proceeding except pursuant to discovery under certain provisions of the Evidence Code.”  (Becerra v. Sup.Ct. (2020) 44 Cal.App.5th 897, 915.)

In 2018, the California Legislature enacted SB 1421, which amended the CPRA to require disclosure of records related to police uses of force and misconduct. Effective January 1, 2022, SB 16 amended Penal Code section 832.7 to further expand the types of peace officer personnel records that are considered non-confidential and therefore subject to disclosure under the CPRA

Specifically, Penal Code section 832.7(b)(1) provides in relevant part:

(b)(1) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by a state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act ….

(A) A record relating to the report, investigation, or findings of any of the following:

(i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.

(ii) An incident involving the use of force against a person by a peace officer or custodial officer that resulted in death or in great bodily injury.

(iii) A sustained finding involving a complaint that alleges unreasonable or excessive force.

(iv) A sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive.

(B)(i) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.

….[¶]

(C) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency involving dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any false statements, filing false reports, destruction, falsifying, or concealing of evidence, or perjury.

(D) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

(E) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that the peace officer made an unlawful arrest or conducted an unlawful search.

Peace officer personnel records not meeting the criteria for nonconfidentiality under SB 1421 or SB 16, remain confidential under Penal Code section 832.7(a) and exempt from disclosure under the CPRA pursuant to Government Code section 6254(k), which exempts from disclosure “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law ….”

Requests Nos. 1, 5-7: Peace Officer Records

In his opening brief, Petitioner asserts that he was falsely convicted of the murder of Jimmy Wyatt in March 1993; that LASD officers from the Lynwood division were involved in the investigation and in his arrests in 1992; and that he subsequently learned that deputies at the Lynwood division “were alleged to have filed false reports and false charges against individuals as cover charges to cover up bad act on the officer's part.”  (OB 4-5.) 

Requests Nos. 1 and 5-7 all pertain to these allegations.  Request No. 1 seeks the results of LASD’s investigation of service comment report # 246868.  In that service comment report, LASD responded to a letter written by Petitioner to the District Attorney’s Office alleging he was framed and wrongfully convicted.  (OB Exh. C.)  LASD wrote that the complaint was investigated, and that California law prohibited LASD from discussing specific details of the peace officer personnel matters at issue.  Requests Nos. 5-7 seek records of complaints of misconduct and discipline imposed against three LASD detectives of LASD’s Lynwood Division, i.e., Richard Graves, John Haynes, and Brian Doyle.  (OB 6-7.)  For Request No. 5, Petitioner specifies that such misconduct complaints may relate to “false arrest, falsifying evidence, threatening or intimidating witnesses and police coercion.”  Petitioner further contends that these requests seek “records of dishonesty” and relate to his claim that LASD “manufactured evidence” to arrest and convict him of a crime.  (OB 9.)

            In opposition, Respondents submit the declaration of Lieutenant Jose Aguirre, Jr., who is currently assigned to LASD’s Discovery Unit.  Aguirre declares that the Discovery Unit processes CPRA requests for LASD and that he is a custodian of records for the Discovery Unit.  As relevant to Requests Nos. 1 and 5-7, Aguirre declares as follows:

[W]ith respect to Petitioner’s Requests Nos. 1, 5, 6, and 7, which seek records of investigations, complaints of misconduct and discipline against certain LASD deputies, these records constitute confidential peace officer personnel records that are privileged under California law by Penal Code § 832.7 and consequently exempt from disclosure under the CPRA by Government Code § 6254(k). I am informed and believe that Petitioner contends that these records are subject to disclosure under the CPRA because they pertain to “records of dishonesty,” and the 2019 amendment to Penal Code § 832.7 by Senate Bill 1421 (“SB 1421”), made certain peace officer personnel records non-confidential and subject to disclosure under the CPRA. However, none of the records responsive to Petitioner’s Requests Nos. 1, 5, 6, and 7, relate to an “incident in which a sustained finding was made by any law enforcement agency or oversight agency involving dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any false statements, filing false reports, destruction, falsifying, or concealing of evidence, or perjury,” as required to be deemed nonconfidential and subject to disclosure under the CPRA. See Penal Code § 832.7(b)(1)(C) (emphasis added). Nor do these records meet any of the other criteria for disclosure under SB 1421 or the 2022 amendment to Penal Code § 832.7 by SB 16.

(Aguirre Decl. ¶ 5.)

Petitioner has not responded to or rebutted this evidence.  Petitioner contends that these requests seek “records of dishonesty”.  (OB 9.)  However, Aguirre declares that none of the responsive records relate to an incident in which a sustained finding of dishonesty was made against detectives Richard Graves, John Haynes, and Brian Doyle.  Under Penal Code section 832.7, records related to an incident in which a sustained finding of dishonesty was made against a peace officer are deemed non-confidential.   (§ 832.7(b)(1)(C); see also § 832.8(b) [definition of “sustained”].)  Because the evidence supports that LASD does not have such responsive records, LASD properly denied these CPRA requests.

Aguirre also declares that any responsive records do not “meet any of the other criteria for disclosure under SB 1421 or the 2022 amendment to Penal Code § 832.7 by SB 16.”  (Aguirre Decl. ¶ 5.)  This statement also has not been rebutted by Petitioner.  Furthermore, Petitioner indicates that he requests personnel records related to alleged dishonesty of these officers.  (OB 9.)    The court notes that the statement there are no documents related to the officers disclosable under SB1421 should have been included in County’s original response to the public records act request.  However, the response has now been provided and supported by the declaration of Lt. Aguirre, so no further order is necessary.

            The petition is denied as to Requests Nos. 1 and 5-7.

Requests Nos. 2-3: Arrest Records and Incident Reports

            In Requests Nos. 2-3, Petitioner seeks disclosure of arrest records and incident reports for his arrests in 1992.  (See OB 5-6; Aguirre Decl. ¶ 6.)  These records are 30 years old and Aguirre declares that LASD “has not been able to confirm if the records still exist.”  (Aguirre Decl. ¶ 6, fn. 3.)  To the extent the records still exist, they constitute records of investigation that are exempt from disclosure under section 6254(f).  Significantly, the records of investigation “exemption extends indefinitely, even after an investigation is closed.”  (Rivero v. Superior Court (1997) 54 Cal.App.4th 1048, 1052; see Williams, supra, 5 Cal. 4th at 341, 361-362.)

Petitioner does not dispute that the arrest records he requests are exempt from disclosure under Government Code § 6254(f). Instead, he contends that “law enforcement agencies are obligated under Section 6254(f) to publicly disclose certain information contained within law enforcement records, making a statutory exception to the exemption.”  (OB 8.) 

As summarized above, section 6254(f) provides that certain information contained within the arrest reports shall be public.  However, the Court of Appeal has held that the information required to be disclosed under section 6254(f) is “limited to current information and records of the matters described in the statute and which pertain to contemporaneous police activity.”  (County of L.A. v. Superior Court (1993) 18 Cal.App.4th 588, 601.)  Petitioner has not addressed this published decision in a reply brief.  The information Petitioner seeks is from arrest records dating back to 1992 – 30 years ago.  These records do not relate to contemporaneous police activity and the information contained within these records is not subject to disclosure under section 6254(f).

The petition is denied as to Requests Nos. 2-3.

Request No. 4: Brady List

            In Request No. 4, Petitioner seeks LASD’s Brady list.  Respondents withheld this record on the grounds it is exempt from disclosure pursuant to the California Constitution, Article I, Penal Code section 832.7, and other law. 

            Pursuant to Brady v. Maryland (1963) 373 U.S. 83, “[a] prosecutor in a criminal case must disclose to the defense certain evidence that is favorable to the accused… [including] evidence that will impeach a law enforcement officer's testimony.”  (Ass'n for L.A. Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 35-36.)  “In part to address this issue, some law enforcement agencies have created so-called Brady lists. These lists enumerate officers whom the agencies have identified as having potential exculpatory or impeachment information in their personnel files — evidence which may need to be disclosed to the defense under Brady and its progeny.”  (Ibid.)

The California Supreme Court has held, after the 2018 amendments to section 832.7, that a Brady list is not “nonconfidential” if it contains information from confidential peace officer personnel records under Penal Code section 832.7.  (Ass'n for L.A. Deputy Sheriffs, supra, 8 Cal.5th at 47-49.)  The Court reasoned as follows:

In light of Senate Bill 1421, however, some of the records reviewed by the Department may not be confidential. (See, e.g.,  Pen. Code, § 832.7, subd. (b)(1)(C).) If the records are not confidential, then information “obtained from” those records is also not confidential. The record on appeal in this case was not developed with Senate Bill 1421 in mind. Given the many grounds that may have given rise to a deputy's inclusion on the Brady list, we cannot say that the list was derived entirely from records rendered nonconfidential by Senate Bill 1421.4

Nor can we say that a Brady list that includes both confidential and nonconfidential information melds into a single, nonconfidential whole. It is true that when a Brady list includes both confidential information and nonconfidential information, an officer's presence on the list does not necessarily communicate confidential information about that officer. In such a situation, one cannot infer from the officer's presence on the list that there is impeachment information in the officer's confidential records.  [Citations.]  But this argument reflects too narrow a view of the confidentiality afforded by the Pitchess statutes. When a Brady list is created based on review of confidential records, information is still unambiguously “obtained from” those records. (§ 832.7(a).) It would be odd indeed to conclude that the Legislature intended to sacrifice the confidentiality of one officer's records merely because the officer was listed alongside others whose records were not confidential.

(Id. at 48-49.)

Ass'n for L.A. Deputy Sheriffs, supra also involved LASD’s Brady list and the Court’s decision summarizes “how the Brady list at issue in this case was assembled.”  (Id. at 48.) 

Here, the court has no reason to believe that the process by which LASD creates the Brady list has materially changed from the process described in Ass'n for L.A. Deputy Sheriffs.  Thus, it is reasonably inferred that the Brady list that Petitioner seeks is derived partly from records that remain confidential under section 832.7(a).  Since the Brady list is derived in part from confidential information, the list is also confidential pursuant to section 832.7(a) and exempt from disclosure pursuant to Government Code section 6254(k).

In his CPRA request, Petitioner sought disclosure of the entire Brady list and also requested that Respondents “ascertain whether any of the deputies responsible for my arrest is on that list.”  (FAP Exh. B.)  Petitioner has not identified the deputies responsible for his arrest, but he appears to refer to detectives Richard Graves, John Haynes, and Brian Doyle, the subjects of Requests Nos. 5-7.  For the reasons discussed above, the evidence supports that Respondents do not have possession of responsive, non-exempt personnel records for these three detectives.  Therefore, it is reasonably inferred that, if these detectives are on the Brady list, their inclusion on the list is based on confidential peace officer information. 

Petitioner has not developed an argument that Respondents are required by the CPRA to produce a partial Brady list that reflects only non-confidential information as to any other deputies or LASD personnel.  However, the parties should address that issue at the hearing. 

Subject to argument, the petition is denied in full as to Request No. 4.

Additional Remedies Sought by Petitioner in his Prayer for Relief

            Petitioner’s additional prayers for relief, including for appointment of an investigator or attorney, are not supported and are denied.  (FAP p. 4.)

Conclusion

The petition is DENIED.