Judge Mitchell L. Beckloff, Case 21STCP04174 2023-03-17 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP04174, Date: 2023-03-17 Tentative Ruling

Petitioner, William Munoz, seeks a writ of mandate under Code of Civil Procedure section 1085 and the California Public Records Act (CPRA) (Government Code sections 7923.000 et seq.).[1] Petitioner seeks an order requiring Respondent, the City of Downey,[2] to produce requested documents under the CPRA.

At the hearing on February 1, the City objected to the court’s tentative decision as addressing a matter that had not been briefed—the issue of waiver. The court allowed supplemental briefing on the issue. The court has read and considered the supplemental briefs.

On December 10, 2021, Petitioner made a written request for records from the City pursuant to the CPRA. (Opening Brief, Ex. 2; Pet., Ex. 1.) Petitioner requested “records for Police Department Incident 2151961.”[3] (Opening Brief, Ex. 2.) On December 22, 2021, the City responded to Petitioner. (Pet., Ex. 2.) The City explained “Downy Police Incident Report 21-51961” sought by Petitioner “are exempt from disclosure”[4] because the records concerned “investigations conducted by law enforcement.” (Pet., Ex. 2.) The City noted, “These records were created by law enforcement in connection with an investigation to determine if a violation of law has been or is about to be committed. (See, Haynie v. Superior Court (2001) 26 C4th 1061, 1070.)” (Pet., Ex. 2.) The City provided other information such as the “time, substance, and location of all complaints or requests for assistance . . . and the response thereto” related to the incident and the “factual circumstances surrounding [the] crime/incident . . . .” (Pet., Ex. 2.)

On December 23, 2021, the day after the City responded to Petitioner’s request, he initiated this proceeding.

The CPRA declares that “access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.” (Gov. Code, § 7921.000.) The statute's explicit purpose is to increase freedom of information by giving the public access to information in the public agencies' possession. (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651.) “Maximum disclosure of the conduct of governmental operations was to be promoted by the [CPRA].” (Id. at pp. 651-652.) To that end, the CPRA provides that “every person has a right to inspect any public record,” except as the record may be exempt under the CPRA. (Gov. Code

§ 7922.525, subd. (a).) Hence, “all public records are subject to disclosure unless the Legislature has expressly provided to the contrary.” (Williams v. Superior Court (1993) 5 Cal.4th 337, 346.) Consistent with the CPRA's purpose, “[s]tatutory exemptions from compelled disclosure are narrowly construed.” (California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810, 831.)

“Except with respect to public records exempt from disclosure by express provisions of law, 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 to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” (Gov. Code, § 7922.530, subd. (a).)

The CPRA provides “[a]ny person may institute proceedings for injunctive or declarative relief or writ of mandate in any court . . . to enforce his or her rights to inspect or to receive a copy of any public record or class of public records under this chapter.” (Id., at § 7923.000.) Where the court finds a violation of the CPRA, the court shall order the government agency to disclose the public record. (Id., at § 7923.100.)

Code of Civil Procedure section 1085, subdivision (a) provides in relevant part:

“A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”

“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. (California Ass'n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy . . . .” (Pomona Police Officers’ Ass’n v. City of Pomona (1997) 58 Cal.App.4th 578, 583-84.)

“When there is review of an administrative decision pursuant to Code of Civil Procedure section 1085, courts apply the following standard of review: ‘[J]udicial review is limited to an examination of the proceedings before the [agency] to determine whether [its] action has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether [it] has failed to follow the procedure and give the notices required by law.’ [Citations.]” (Id. at 584)

Petitioner contends the City failed to comply with its duties under CPRA. Petitioner requests the court order the City produce responsive records regarding its police department incident number 21-51961. Petitioner argues the City’s failure to produce documents based on an exemption “is meritless.” (Opening Brief 3:14.) Petitioner explains he “is searching for the physical materials of any and all information the Respondent has,” including “video from body cams the police are required to be wearing.” (Opening Brief 5:5-9.) Petitioner reports he “was never given any information as to why he could not obtain the records he requested.” (Opening Brief 5:11.) Petitioner claims the City already released the incident report and provides a copy of the purported incident report.[5] (Opening Brief, Ex. 3.)

In response to Petitioner’s claim the records he requested are not exempt and his suggestion any exemption has been waived based on the incident report’s release to others, the City advises it holds two responsive records to Petitioner’s request—the incident report and the body worn camera footage. (Burkhardt Decl., ¶ 8.) The City argues both responsive records it holds are exempt from disclosure pursuant to Government Code section 7923.600, subdivision (a).[6] The City also reports the “incident report contains records and information regarding the investigation undertaken by the City . . . in response to a complaint filed by a citizen against another. It also contains the list of actions taken by responding officers as they attempted to ascertain the facts of the matter and whether a crime had occurred.” (Burkhardt Decl., ¶ 9.)

Government Code section 7923.600, subdivision (a) authorizes a public agency to withhold “[r]ecords of . . . investigations conducted by . . . any state or local police agency, or any investigatory or security files compiled by any other state or local police agency . . . .”[7] Investigatory reports are those records prepared by law enforcement agencies undertaken to determine if a violation of law has, or may have, occurred. (See Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1070-1071; American Civil Liberties Union Foundation v. Superior Court (2017) 3 Cal.5th 1032, 1040.)

On the issue of waiver, the City explains its release of the incident report “to a third party in December 2021” was required by Government Code section 7923.605. (Burkhardt Decl., ¶ 10.) The third party “was the complainant and victim of the underlying incident, . . . .” (Burkhardt Decl., ¶ 10.) It argues it did not waive any CPRA exemption based on the legally required release. (See Gov. Code, § 7921.505, subd. (c).) The City reports it released the report to the complainant and victim as required by law, Government Code section 7923.605, subdivision (a). (Ibid.)

Further, based on the evidence submitted, the court can find the body worn video is exempt from release pursuant to Government Code section 7923.600, subdivision (a).[8] Petitioner advises he was present when the police responded to an incident at the First Presbyterian Church in Downey. (Opening Brief 3:2-9.) The police escorted an individual out of the church. (Opening Brief 3:8.) Petitioner’s CPRA request seeks information about that incident. (Opening Brief 3:10, Ex. 1.) Any body worn video of the incident would have been in connection with a police response to the church to determine if a violation of law has, or may have, occurred. (See Haynie v. Superior Court, supra, 26 Cal.4th at 1070-1071; American Civil Liberties Union Foundation v. Superior Court, supra, 3 Cal.5th at 1040. See also Burkhardt Decl., ¶ 9.) Thus, the body worn video would be exempt from disclosure under the CPRA.

[1] The CPRA statutory scheme has, as of January 1, 2023, been recodified. (See Gov. Code,

§ 7920.005.)

[2] Petitioner has also named the City Clerk as a Respondent.

[3] Petitioner had previously made two oral requests for the records from the City. According to the evidence, the City advised Petitioner the “incident report was exempt from disclosure because [Petitioner] was not the reporting party or the victim under Government Code section 7923.605.” (Burkhardt Decl., ¶¶ 4, 5.)

[4] While the City referenced a single incident report in the first sentence of its response. The second sentence suggests Petitioner sought more than one record.

[5] According to Petitioner, the release of the incident report to others, but not him, is a violation of the equal protection clause found in the state constitution. (Opening Brief 5:16-6:19.)

[6] The City did provide certain information about the incident pursuant to former Government Code section 6254, subdivision (f)(2). Petitioner does not take issue with the information provided.

[7] While broadly shielding the records themselves from disclosure, the CPRA requires law enforcement agencies to disclose certain information derived from the records, as provided in Government Code sections 7923.605, 7923.610 and 7923.615.)

[8] Petitioner does not argue otherwise.