Judge: Mary H. Strobel, Case: 21STCP03994, Date: 2022-08-02 Tentative Ruling

Case Number: 21STCP03994    Hearing Date: August 2, 2022    Dept: 82

            Petitioner Abigail Slotkin (“Petitioner”) petitions for a writ of mandate directing Respondents City of Los Angeles and the Los Angeles Police Department (“LAPD” or “Department”) (collectively “Respondents”) to provide non-exempt records responsive to Petitioner’s requests for records under the California Public Records Act (“CPRA”) dated August 31, 2021.  The CPRA request relates to the police investigation into the death of Nicollette Slotkin, Petitioner’s daughter, by gunshot wound.  Petitioner believes there are “discrepancies” in the police investigation report, which she hopes to resolve by inspecting a 911 call and body worn video related to the investigation.  

Background

Death of Nicolette Slotkin and LAPD Investigation

            On June 27, 2019, at about 9:30 pm, LAPD officers Llewellyn and Wilhelm responded to a radio call of “Possible Attempt Suicide” at the home of Mark Slotkin, Petitioner’s former husband.  (Slotkin Decl. ¶ 4; Administrative Record (“AR”) 10-13.)[1]  According to the police investigation report, Mark Slotkin called 911 and reported that his 25-year-old daughter, who suffers from “mental problems,” had locked herself in a room and he heard a gunshot.  (AR 10.)  Mark Slotkin reportedly made similar statements to the officers when they arrived.  (Ibid.)

Upon arrival, the officers forcibly entered a bedroom and observed the subject, Nicollette Slotkin, laying on the ground with blood pooling on the carpet around her head.  In their report, the officers wrote that they observed a .357 revolver near the subject’s body.  Reportedly, the subject’s right arm was laying across her face and her body was positioned slightly on her left side.  The subject did not have a pulse.  (AR 10.) 

In the police investigation report, the officers documented several observations of the scene, including that there did not appear to be any damage to the door from being kicked; officers searched for additional persons with “negative results” and “did not observe anything that appeared out of the ordinary”; and the subject was pronounced dead at the scene.  The officers also interviewed Mark Slotkin and documented several statements made by him, including that: both of his daughters had visited that night; that Nicollette Slotkin began arguing about money and had demanded money from her trust fund; that she said “Fine, I’ll go shoot myself”; that she walked upstairs and closed a door; and that he heard one gun shoot followed by a thud, and then called police.  Mark Slotkin also reported that Nicollette Slotkin suffered from anxiety and depression; that they had attempted to place her on a 5150 hold several times, but she always talked her way out of it; and that she had previously threatened to kill herself.  (AR 10-11.)

The police investigation report states that the responding officers notified an officer in the Homicide decision, and that officer advised the responding officers that Homicide would not be responding and the officer should “treat it like a suicide.”  (AR 11.) The report also states that a “Hollywood Nightwatch Det II” responded; determined that there was “no apparent crime”; and indicated that Homicide “was not treating this incident like a homicide.”  (AR 13.)

The police investigation report also states that Mark Slotkin owned two firearms, including the revolver the subject used and that this revolver was kept in his room drawer.  (AR 13.)

The administrative record also includes a report of the County of Los Angeles Coroner.  According to this report, the Coroner ruled Nicollette Slotkin’s death to be suicide.  (AR 1-8.) 

Petitioner declares that she received the LAPD investigation report and Coroner’s report from LAPD.  (Slotkin Decl. ¶ 2.)  Respondents state that she obtained these records “by other means.”  (Oppo. 4, fn. 3.)  How Petitioner obtained these reports, which is not entirely clear, is not dispositive to the court’s ruling.

CPRA Request

In or about May 2021, Petitioner submitted to LAPD a CPRA request for certain audio and video records related to the investigation into the death of Nicollette Slotkin. As relevant to this writ petition, Petitioner requested the 911 emergency call made by Mark Slotkin and the Body Worn Video (“BWV”) of the responding LAPD officers.  (AR 20-21.)  In a response dated May 27, 2021, LAPD denied Petitioner’s request for the 911 call of Mark Slotkin and BWV of the responding officers pursuant to Government Code section 6254(f).  With respect to BWV, LAPD stated that “the records you seek … are investigatory records or properly part of an investigatory file; therefore, we are denying your request.”  (AR 20.)  With respect to the 911 call, LAPD wrote that “should any records be located, 9-1-1 telephone calls … are either investigatory records themselves or properly part of an investigative file and therefore exempt from disclosure.”  (Ibid.) 

On September 17, 2021, Petitioner submitted to LAPD a second CPRA request, dated August 31, 2021, related to the investigation into the death of Nicollette Slotkin. She again requested the 911 emergency call made by Mark Slotkin and the BWV of the responding LAPD officers.  (AR 14-16; AR 31-33; Quan Decl. ¶ 2.)   On September 25, 2021, LAPD responded to Petitioner denying her request and asserting statutory exemptions from disclosure under the CPRA, including the records of investigation exemption in Government Code section 6254(f). (AR 17-19, AR 39-44; Quan Decl. ¶4.)  The August 31, 2021, request is at issue in the CPRA petition.  (Pet. ¶ 1.) 

In the responses to the CPRA requests, LAPD advised Petitioner that: “Should any records be located, to the extent the information is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, and a brief statement of the circumstances can be made available to you upon request.”  (AR 18-19; see also AR 21.)

Respondents submit evidence that “Petitioner did not respond to the Department's September 25, 2021 message nor request information derived from the requested records.” (Quan Decl. ¶ 5.)

Respondents also submit evidence, which Petitioner has not disputed, that Respondents found the following records that are responsive to Petitioner’s CPRA Request:

·         “A 911 emergency call from Mark Slotkin, father of Nicolette Slotkin, requesting assistance following the sound of a gunshot after Nicollete Slotkin locked herself in a room”

·          “A series of LAPD peace officer BWVs depicting the response and investigation arising from the 911 emergency call from Mark Slotkin and inquiring into the circumstances surrounding how Nicolette Slotkin died and whether any violations of law had occurred.”  (Quan Decl. ¶ 3.)

Writ Proceedings

            On December 8, 2021, Petitioner filed her verified petition for writ of mandate.  Respondents have answered.

            On June 3, 2022, Petitioner filed her opening brief in support of the petition and supporting evidence.  The court has received Respondents’ opposition, the opposing declaration of Lt. Eric Quan, and Petitioner’s reply. 

Summary of CPRA; Burden of Proof; and Standard of Review

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.” 

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.)  While the CPRA provides express exemptions to its disclosure requirements, these exemptions must be narrowly construed and the agency bears the burden of showing that a specific exemption applies.  (Sacramento County Employees’ Retirement System v. Superior Court (2013) 195 Cal.App.4th 440, 453.) 

A public agency also has the burden to demonstrate that it properly withheld records on the grounds they are non-responsive to a CPRA request or do not constitute public records.  (ACLU of Northern Cal. v. Sup.Ct. (2011) 202 Cal.App.4th 55, 83-86.)  ““Because the agency has full knowledge of the contents of the withheld records and the requester has only the agency's affidavits and descriptions of the documents, its affidavits must be specific enough to give the requester ‘a meaningful opportunity to contest’ the withholding of the documents.”  (Id. at 83; see also Getz v. Sup.Ct. (2021) 72 Cal.App.5th 637.)

Analysis

            In the petition, Petitioner seeks a writ directing Respondents to produce “all non-exempt records relating to the death of decedent, including but not limited to Mark's 911 telephone call and BWV from arriving officers inside Mark's residence.”  (Pet. ¶ 22.)  In the opening brief, Petitioner appears to narrow the scope of these CPRA proceedings to the 911 call and BWV.  (See Opening Brief (“OB”) 1:6-16 [stating that Petitioner seeks to “listen to the 911 call” and “see the body worn video”].)  The court thus analyzes that request.

Summary of Applicable Law – Statutory Exemption for “Records of Investigation”

Government Code section 6254(f) generally exempts “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.” 

“The animating concern behind the records of investigations exemption appears to be that a record of investigation reveals (and, thus, might deter) certain choices that should be kept confidential—an informant's choice to come forward, an investigator's choice to focus on particular individuals, the choice of certain investigatory methods.”  (American Civil Liberty Union v. Superior Court (2017) 3 Cal.5^th 1032, 1041.)

“The records of investigation exempted under 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.”  (Haynie v. Sup.Ct. (2001) 26 Cal.4th 1061, 1071.)  Section 6254(f) “does not distinguish between investigations to determine if a crime has been or is about to be committed and those that are undertaken once criminal conduct is apparent.”  (Id. at 1070, fn. 6.) 

Significantly here, the records of investigation may be determined from the “face” of the record at issue.  (Id. at 1069.)  “What is true for records of complaints (Black Panther Party) and intelligence information (ACLU) is true as well for records of investigations. The latter, no less than the former, are exempt on their face, whether or not they are ever included in an investigatory file.”  (Ibid.) 

            Also 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.)

Application to this Case

            Here, the LAPD investigation report, which Petitioner has submitted into evidence, shows that LAPD conducted an investigation to determine how the decedent died and whether the death was the result of suicide or some other case.  The report shows that, as part of the investigation, certain records were generated. 

As relevant here, the report indicates that the 911 emergency call made by Mark Slotkin was a request for law enforcement assistance after he heard the sound of a gunshot.  This call was relayed to the responding officers, which caused them to respond and commence a “death investigation.”  (AR 10 [“We received a radio call of a ‘Possible Attempt Suicide’”].)  Because the 911 call commenced the LAPD investigation, it appears on its face to be a record of investigation and is exempt from disclosure under section 6254(f) “whether or not [it was] ever included in an investigatory file.”  (Haynie, supra, 26 Cal.4^th at 1069-70; see also Id. at 1067 [reversing order requiring disclosure of “recordings of any radio broadcast that the deputies heard prior to the stop that was relevant to their decision to stop Haynie”].) 

The BWVs of the responding officers similarly are records of investigation because they would necessarily depict the officers’ investigation into the circumstances surrounding how the decedent died and whether her death was the result of suicide or some other cause.  Notably, Petitioner requested BWVs of the “arriving officers,” and specifically Llewellyn and Wilhelm. (AR 14, 20.)  Lt. Quan also declares that the responsive records are “A series of LAPD peace officer BWVs depicting the response and investigation arising from the 911 emergency call from Mark Slotkin and inquiring into the circumstances surrounding how Nicolette Slotkin died and whether any violations of law had occurred.”  (Quan Decl. ¶ 3.)  Because the BWV visually and audibly documented the investigation performed by the “arriving officers,” the BWV on its face is a record of investigation exempt from disclosure under section 6254(f).

That Nicollette Slotkin’s death was ultimately ruled a suicide is not dispositive.  The police investigation report shows that the officers conducted some preliminary assessment into the cause of the death, including potential criminal causes.  The officers also interviewed Mark Slotkin and documented several statements made by him including the circumstances preceding the gunshot, and Nicollette Slotkin’s mental health history.  (AR 10-11.)  The officers questioned Mark Slotkin about his firearms, including the revolver the subject used which was kept in his room drawer.  (AR 13.)  A “Hollywood Nightwatch Det II” responded to the scene; determined that there was “no apparent crime”; and indicated that Homicide “was not treating this incident like a homicide.”  (AR 13.)

The California Supreme Court’s decision in Haynie is instructive.  In that case, “[t]he records in question concern[ed] a citizen's call to report a possible crime and the department's response thereto.”  (Haynie, supra, 26 Cal.4th at 1064.)  Specifically, the petitioner alleged that he was stopped by police while he was driving in a van with three teenage passengers; that he was handcuffed and questioned; the van was searched; and released.  The petitioner alleged that no charges were filed.  The petitioner submitted a CPRA request for “any crime reports, arrest reports, evidence reports, use-of-force reports, canine reports, officer-involved-shooting reports, follow-up reports, handwritten notes, supervisors' reports, notes or reports of interviews of witnesses, and tape recordings (including recordings of radio calls leading up to the incident, recordings containing any information forming the basis for Haynie's detention, and recordings of any communications between the deputies and Haynie or anyone else present at the time of the incident).”  (Id. at 1065.) The sheriff’s department refused to produce the records, claiming exemption under section 6254(f), but provided a summary of the incident.  (Id. at 1065-66.) 

The petitioner in Haynie filed a writ seeking disclosure, which the trial court denied.  The Court of Appeal reversed and ordered the trial court to reconsider disclosure of “(1) recordings of any radio broadcast that the deputies heard prior to the stop that was relevant to their decision to stop Haynie; (2) any tape recording of Haynie's conversations with the deputies during the stop; and (3) any statements obtained from the passengers in Haynie's vehicle during the stop.”  The California Supreme Court reversed the Court of Appeal’s order. 

As relevant here, the Supreme Court held that “the investigation that included the decision to stop Haynie and the stop itself was for the purpose of discovering whether a violation of law had occurred and, if so, the circumstances of its commission. Records relating to that investigation are exempt from disclosure by section 6254(f).”  (Id. at 1071.) 

Haynie is controlling.  Given the circumstances at the scene, LAPD necessarily had to conduct some, preliminary investigation to ascertain whether a crime had been committed before ultimately concluding that the decedent died by suicide.  The police report shows that the officers did so.  As discussed, among other things, the officers inspected the scene, spoke with Mark Slotkin, and considered whether Homicide division should be called to the scene.  A record of an investigation into potential criminal activity that does not find that a crime occurred is nonetheless exempt under section 6254(f).

            Petitioner argues that “no confidential sources will be revealed if the requested information is released” and “[d]isclosure will not interfere with enforcement proceedings because there is no pending court case, and none is contemplated.”  (Opening Brief (“OB”) 5.)  Relatedly, in reply, Petitioner states that the records should be disclosed because there is no “ongoing investigation.”  (Reply 1.) 

Haynie further illustrates that it does not matter if the investigation results in the charging of a crime or if the investigation has ended.  Indeed, no charges were filed against the petitioner in Haynie and the investigation had long since ended.  For a record of investigation, there is no requirement in section 6254(f) or the case law that criminal proceedings are “concrete and definite.”  (Haynie, supra at 1069-70.)  Furthermore, 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 contends that “City cannot point to any justification and/or exemption that precludes disclosure” and the “balancing of interests” weighs for disclosure.  She argues that no privacy interests have been asserted.  (OB 5; Reply 1-3.)  Petitioner seeks the records in the hopes they may resolve “discrepancies” in the autopsy and investigation reports.  (OB 1; AR 1-9, 10-13, 14.)  As she states in reply, “This action is a mother's search for truth in the death of her daughter, Nicollette.”  (Reply 1.)

            Petitioner’s desire for the 911 call and BWV is certainly compelling.  Nonetheless, the law enforcement records exemption under section 6254(f) is not subject to a balancing of interests and the purpose of the request does not affect disclosure.  Section 6254(f) does not require the public agency to demonstrate the need for confidentiality on a case-by-case basis in order to invoke the exemption. (Williams, supra, 5 Cal.4th at 353; Rackauckas v. Sup.Ct. (2002) 104 Cal.App.4th 169, 174.) 

Petitioner’s personal reasons for seeking the 911 call and BWV, no matter how reasonable, are not germane to whether the “records of investigation” exemption under the CPRA applies.  (Oppo. 9; Gov. Code § 6257.5; see also County of Santa Clara v. Sup.Ct. (2009) 170 Cal.App.4th 1301, 1324 [“the motive of the particular requester is irrelevant  …. The Public Records Act does not differentiate among those who seek access to public information.”].) 

            In her declaration, Petitioner states that “LAPD already has waived its claimed exemption based on my receipt of the police report and death scene photos.”  (Slotkin Decl. ¶ 2, fn. 1.)  Petitioner does not explain how she obtained the investigation report and death scene photos.  A claim of waiver cannot be adjudicated without that information.  Nor does she provide any legal analysis or cite any cases or statutes suggesting that disclosure of some parts of a record of investigation waives the exemption as to other parts.  The argument is unpersuasive.

            Based on the foregoing, Respondents have met their burden to prove that the 911 call and BWV requested by Petitioner are exempt from disclosure under section 6254(f). 

No Request for Information under Section 6254(f)

Section 6254(f) provides the following exception requiring disclosure of information to certain persons: “However, state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation. However, this subdivision does not require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.” 

In the responses to the CPRA requests, LAPD advised Petitioner that: “Should any records be located, to the extent the information is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, and a brief statement of the circumstances can be made available to you upon request.”  (AR 18-19; see also AR 21.)  Respondents submit evidence that “Petitioner did not respond to the Department's September 25, 2021 message nor request information derived from the requested records.” (Quan Decl. ¶ 5.)

In the opening brief, Petitioner made no argument that she sought disclosure of the information permitted by section 6254(f).  In reply, Petitioner makes a request for a list of specified information, none of which falls within the scope of section 6254(f).  (Reply 4.)  Moreover, this “request” was improperly made for the first time in her reply. 

In Camera Review

Petitioner requests in camera review of the 911 call and BWV.  (OB 5; Reply 4-5.) “To determine a claim of exemption from the CPRA's disclosure provisions, the court may but is not required to examine the disputed records in camera.”  (Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 901, citing Gov. Code § 6259(a); accord Times Mirror Company v. Superior Court (1991) 53 Cal.3d 1325, 1346-1347, n. 15.)  In camera review may be justified where the evidentiary record is insufficient for the court to determine whether records fall within a statutory exemption.  (See Register, supra at 904, 908 [holding that trial court abused its discretion in failing to hold in camera review with respect to certain statutory exemptions].)  However, the California Supreme Court has “never construed [Section 6259(a)] to compel an in camera review where—as here—such review is unnecessary to the court’s decision.” (Times Mirror Company v. Superior Court, supra, 53 Cal.3d at pp. 1346-1347, n. 15.)

Here, the court determines that the section 6254(f) exemption applies to the requested records from the face of the records sought and from the existing evidentiary record.  In camera review is unnecessary.

Protective Order

Petitioner also requests disclosure pursuant to a protective order.  (Reply 4-5.)  She cites no authority for such relief under the CPRA. 

Conclusion

The petition is DENIED.