Judge Mitchell L. Beckloff, Case Number: 22STCP02209, Date: 2024-02-02 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP02209, Date: 2024-02-02 Tentative Ruling

Petitioner, E. Thomas Barham, Jr., an attorney, seeks a writ of mandate directing Respondent, City of Los Angeles, to comply with Petitioner’s requests, under the California Public Records Act (CPRA), Government Code[1] section 7921.000. Petitioner request and order requiring the disclosure of certain public records held by the Los Angeles Police Department (LAPD) related to the non-fatal officer-involved shooting of Petitioner’s client, Shellie Cooke.

Petitioner’s evidentiary objections to the Declaration of Shavonne Robinson and the Declaration of John Sewell are overruled.[2]

Petitioner is an attorney admitted to practice in this state since 1982. Although he stopped accepting cases several years ago, he still does consulting work as an attorney. His primary area of practice for more than 30 years was police misconduct litigation. Petitioner also has law enforcement experience. He was employed by the Los Angeles County Sheriff’s Department from 1965 to 1981, when he resigned at the rank of lieutenant. (Barham Decl. ¶¶ 2-14.)

Petitioner was a consultant to attorneys John C. Burton and Dale Galipo, Shellie Cooke’s retained counsel in the matter of Cooke v. City of Los Angeles, et.al., Los Angeles Superior Court case number 18STCV00882. Petitioner summarizes the lawsuit and his consultant work as follows:

Cooke’s lawsuit alleged battery, negligence and violation Bane Act (Cal. Civ. Code § 52.1). The events arose from the March 6, 2017 incident in which LAPD officers responded to Ms. Cooke’s home to assist the Los Angeles Fire Department in response to a request by Cooke’s mother for help getting her hospitalized for treatment of alcoholism. Ultimately, LAPD officers shot and seriously injured Ms. Cooke after she had exited her home carrying a rifle. The officers claimed Ms. Cooke had pointed the rifle at officers; Ms. Cooke denied doing so, stating that she had turned away from the officers without threatening them. . . . In the Cooke lawsuit my services included reviewing the LAPD generated records of its FID (Force Investigation Division) investigation into the Cooke shooting. Some of those records are under a protective order. I also made numerous scene inspections while also reviewing the following: LAPD records on the analysis of the physical evidence, body worn camera recordings, digital recordings of LAPD radio and telephone communications; the District Attorney Justice System Integrity Divisions [JSID] report. . . . [I]n late 2022 the parties in this Cooke litigation reached a settlement, and on April 21, 2023, the Los Angeles City Council approved it. Under the settlement, the City paid Ms. Cooke $1,650,000.00 in exchange for dismissal of her lawsuit. (Barham Decl. ¶¶ 15-17.)

In 2019, Petitioner served as co-counsel on a criminal case brought against Cooke in which she entered a no contest plea to prohibited possession of a firearm. In April 2021, the Honorable Renee Korn granted Petitioner’s motion for Cooke to withdraw her plea and dismiss the information. Petitioner “intend[s] to seek an order to direct sealing and destruction of Cooke’s arrest record for alleged violation of Welfare and Institutions Code § 8103(i) (Prohibited possession of a firearm and Penal Code § 417(c) (Drawing or exhibiting a firearm in a rude, angry, or threatening manner in the presence of a peace officer.)” (Barham Decl. ¶¶ 20-24.) Petitioner made two CPRA requests to obtain evidence to support a petition to seal and destroy Cooke’s arrest records.

On January 25, 2020, Petitioner submitted a CPRA request to LAPD. The City assigned the request # 20-588. The request stated:

I am seeking the Total Station or other GPS crime scene surveys with index of all evidence surveyed in connection of an officer involved shooting on 3-6-17 at [ ] Edgecliffe Drive (DR 17020791-- FO16-17) in light of SB 1421.

Second, please provide any reports concerning search and/or recovery of expended rifle bullets.

Third, please provide duplicate originals of all crime scene photographs, in digital format, (LYNX photo management system).

Fourth, please a copy of the PDF presentation prepared for the Chief of Police and/or Board of Police Commissioners.

Fifth, please provide the body camera videos made by Officers Secor, Blanchard, Munoz, Martin, Fuentes, Rattanpichetkul, Zarris and Sergeant Gruner.

Sixth, please provide the audio recordings and computer assisted dispatch information for the call relating to the incident and subsequent radio, MDT or other forms of communication in digital format.

On February 22, 2022, Petitioner submitted a CPRA request to LAPD. The City assigned the request # 22-1746. The request sought:

All requests pertain [to] the Officer Involved Shooting of Shellie Cooke on March 6, 2017 as reported in LAPD F016-17 and DR No. 17-02-07191.

A. 3-6-17 Body worn camera video by Officer II Jose Castaneda, serial number 37223, as well as his body worn camera video of- Axon Body 2X81063669, made as he accompanied Shellie Cooke from [ ] Edgecliffe Drive to L.A. County- U.S.C. Medical Center.

B. Any and all reports by Officer Fuentes concerning LAPD F0J6-17 and DR No. 17-02-07191.

C. 3-6-17 Body worn camera video by Officer I Rubin Fuentes, Jr. Axon Body 2X81090968, commencing at or about 5:45:34 p.m. through 5:53:40 p.m.

D. 3-6-17 Body worn camera video by Officer II James Blanchard AXON 2 X81049986 (including enhancements thereof).

E. Bench notes made by Criminalist Alan Perez N3438 concerning his touch DNA swabbing of Shellie Cooke's .22 caliber Remington rifle.

F. Duplicate originals of all color photographs and video images of Shellie Cooke taken at L.A. County-U.S.C. Medical Center including placard(s) showing the date, time and identify [sic] of the photographer.

G. Bench notes and photographs of efforts to lift latent and/or patent fingerprints from Shellie Cooke's .22 caliber Remington rifle.

H. Any reports concerning photographing Shellie Cooke at L.A. County-U.S.C. Medical Center including any written requests to photograph her.

I. Kindly provide still photographs in original format, e.g. JPEG with metadata.

In response to Petitioner’s CPRA Requests #20-588 and #22-1746 (collectively, CPRA Requests), LAPD produced public records to Petitioner by way of access to a website. (Robinson Decl. ¶ 8.)

Among other records, LAPD produced the FID Executive Summary of the incident; 147 crime scene photos in PNG format; the Office of Inspector General (OIG) Report of the incident; body worn video (BWV) for several officers; 911 audio clips; the Use of Force Review Board report; and various “supplemental” records and “addenda.” (Robinson Decl. ¶ 8.) LAPD also produced “Leica Data”; JPEG photographs taken at a hospital; and numerous JPEG crime scene photographs. (Robinson Decl. ¶ 9.)

Believing LAPD’s responses to the CPRA Requests were deficient in certain respects, Petitioner initiated this proceeding.

Under the CPRA, individual citizens have a right to access government records. In enacting the CPRA, the Legislature declared “access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.” (§ 7921.000; see also County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 63.)

Article 1, Section 3(b) of the Constitution affirms “[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 National Lawyers Guild, San Francisco Bay Area Chapter 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.” (§ 7921.300.) “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.” (§ 7922.525, subd. (b).)

Petitioner bears the initial burden of proof and persuasion in a mandate proceeding. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) “To establish an agency has a duty to disclose under [the CPRA], the petitioner must show that:

(1) the record ‘qualif[ies] as [a] ‘public record[ ]’ . . . ; and (2) the record is ‘in the possession of the agency.’ ” (Anderson-Barker v Superior Court (2019) 31 Cal.App.5th 528, 538.)

While there are recognized exemptions to production under the CPRA, CPRA exemptions must be narrowly construed; the agency bears the burden of showing a specific exemption applies. (Sacramento County Employees’ Retirement System v. Superior Court (2013) 195 Cal.App.4th 440, 453.) “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.” (American Civil Liberties Union of Northern California v. Superior Court (2011) 202 Cal.App.4th 55, 83; see also Getz v. Superior Court (2021) 72 Cal.App.5th 637.)

“ ‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ . . . . Interpretation of a statute or regulation is a question of law.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

Petitioner acknowledges LAPD produced some of the requested records, but he contends LAPD failed to produce other requested records. Petitioner also argues LAPD improperly redacted some of the records produced. (Barham Decl. ¶¶ 32-34; Pet. ¶¶ 6-13.) Petitioner also seeks physical access to: (1) “the LAPD’s FID investigatory file so that [he] can review the non-confidential portions and where necessary, copy . . . the original record”; and (2) “an LAPD (or City) computer terminal running the software the City has to display on a computer monitor the Cook[e] OIS scene 3d recreation.” (Barham Decl. ¶ 34.)

The City asserts certain documents and requests for physical inspection now sought by Petitioner were either not requested in the CPRA Requests or not raised in the petition. The City argues such documents and requests are not properly at issue through the petition. The City also contends it properly responded to the CPRA Requests, and Petitioner’s request to view files on LAPD computers should be denied.

To resolve the parties’ remaining issues, the court addresses (1) categories of records remaining in dispute; (2) Petitioner’s request for “physical access” to LAPD’s FID investigatory files; and

Petitioner contends the “City produced 259 JPEG computer files of digital photographs regarding the Cooke OIS investigation,” but “the JPEG files the City produced did not reflect the original metadata for each file.” (Opening Brief 6:8-10.) Petitioner “seeks an order directing the City to copy the 259 photographs in their original JPEG file format with all original metadata when originally created.” (Opening Brief 7:15-16.)[5]

LAPD produced to Petitioner “[d]uplicate originals of all color photographs taken at hospital, JPEG format (9 photos)” and “[c]rime scene photos in JPEG format (approximately 250 photos).” (Robinson Decl. ¶ 9 [items b and c].) Shavonne Robinson, a Management Analyst in the Discovery Section – CPRA Unit of LAPD’s Legal Affairs Division, attests “LAPD declined to provide Petitioner photos with the metadata attached to them – i.e., with metadata contained in the photo file – because the metadata contains home address information (house numbers) that LAPD needs to redact pursuant to Penal Code Section 832.7(b)(6)(A)&(B).” (Robinson Decl. ¶ 16.) However, “LAPD has been amenable to providing Petitioner with metadata in a format that omits or redacts confidential and exempt information, and has provided Petitioner disclosable, non-exempt items of metadata for each photo it provided to him.” (Robinson Decl. ¶ 16.)

Penal Code section 832.7, subdivision (b) specifies certain personnel records of police officers that do not have confidential status. To wit:

(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.

(A) To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.

(B) To preserve the anonymity of whistleblowers, complainants, victims, and witnesses. (Emphasis added.)

Section 832.7, subdivision (b)(6) expressly authorizes LAPD to remove personal information from the metadata for the photographs, including home addresses. The City submits unrebutted evidence LAPD has redacted the home address information from the metadata, but it “has provided Petitioner disclosable, non-exempt items of metadata for each photo it provided to him.” (Robinson Decl. ¶ 16; see Reply Barham Decl. ¶ 3.)

For the first time in his Reply Brief, Petitioner argues “[b]y disclosing Shellie Cooke’s street address . . . as the OIS scene of the shooting and disclosing photographs and videos of the surrounding homes, the City made public the street addresses of all surrounding homes . . . [and] has waived any arguable claim to redaction of addresses.” (Reply 4:23-5:4.)

“The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioner alleged in his petition that LAPD improperly redacted or “withheld” metadata from the photographs. (Pet. ¶¶ 7, 10.) Petitioner did not assert in the petition or his Opening Brief that LAPD waived the right to withhold any confidential information.

Although the burden of proving a CPRA exemption falls on LAPD, Petitioner is not challenging the statutory basis for exempting home addresses from any metadata. Rather, Petitioner now asserts LAPD waived the statutory exemption. The burden of proof is on the party asserting a waiver of a right. (See Evid. Code, § 500; Stafford v. Attending Staff Assn. of LAC + USC Medical Center (2019) 41 Cal.App.5th 629, 639.) Accordingly, Petitioner does not show good cause to raise his waiver argument for the first time in his Reply Brief. Accordingly, on this procedural basis, the court rejects Petitioner’s contention LAPD waived the statutory right to redact home address information from any metadata.

Alternatively, even if Petitioner did not forfeit the issue, Petitioner fails to prove LAPD waived the redaction rights specified in Penal Code section 832.7, subdivision (b)(6). Petitioner cites no evidence LAPD has publicly disclosed the portions of the metadata from the JPEG photographs that includes home address information. That LAPD may have disclosed the address of the shooting in other public records does not constitute a waiver of statutory exemptions with respect to the privacy of home addresses, including the address where the shooting occurred. (See Commission on Peace Officer Standards & Training v. Sup.Ct. (2007) 42 Cal.4th 278, 296, fn. 5. [“An individual's [privacy] interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form”]; Pasadena Police Officers Assn. v. Superior Court (2015) 240 Cal.App.4th 268, 294 [“the purpose and policy of the Pitchess statutes mandates that waiver of the privilege must be express”]; see also Gov. Code, § 7921.505, subdivision (b) [CPRA waiver provisions].)[6] Petitioner provides no evidence or argument to support his waiver argument as it relates to address information in the metadata. Petitioner has not developed any argument, including in his Reply Brief, LAPD failed to produce all metadata that is not exempt from disclosure. (See Robinson Decl. ¶ 16; see Reply Barham Decl. ¶ 3.) Accordingly, the evidence demonstrates LAPD fully complied with the CPRA as to Petitioner’s request for Shellie Cooke JPEG photographs with original metadata.

“Establishment Photograph” and LAPD Property Report Regarding the Photographs

Petitioner seeks an order “directing the City to produce all property report(s) and ‘establishment photograph(s)’ for the 259 Cooke OIS incident photographs, including the nine (9) photographs taken of Ms. Cooke at LAC-USC Hospital.” (Opening Brief 8:7-9.) In his declaration, Petitioner attests:

When law enforcement personnel photograph a crime scene, law enforcement documents the photographs by a writing that identifies who took the photographs, when and why. The documentation typically takes the form of a property report that include a bar code. An example of an LAPD establishment photograph for the Cooke OIS incident is Exhibit A. (Barham Decl. ¶ 33. C.)

The City argues “Petitioner did not place ‘establishment photos’ or an LAPD ‘property report’ concerning crime scene photos at issue in this case, because neither are mentioned in the Petition nor in the underlying CPRA requests.” (Opposition 7:15-17.)

As a general rule, Petitioner must demonstrate the City failed to comply with the CPRA

as to the records requested and raised in the petition. The scope of a public records request is

limited to records that are “reasonably described” in the request submitted by the requester.

(§ 7922.530, subd. (a); American Small Business League v. United States Office of Management & Budget (N.D. Cal. 2022) 631 F.Supp.3d 804, 821 [explaining “a FOIA plaintiff may not expand the scope of his request once his original request is made”].)[7] Similarly, this CPRA proceeding, like legal actions generally in California, is “framed by the pleadings.” (Tsemetzin v. Coast Fed. Savings Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) The parties’ legal briefs “may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.” (Ibid.)

Petitioner’s CPRA Request # 22-1746 in paragraph F requested “Duplicate originals of all color photographs and video images of Shellie Cooke taken at L.A. County-U.S.C. Medical Center including placard(s) showing the date, time and identify [sic] of the photographer.” (Robinson Decl. ¶ 4 [emphasis added].)[8] Petitioner also pleaded his request for such records in the petition. (Pet. ¶ 11.) Petitioner’s request for “ ‘Establishment photograph[s]’ and LAPD Property Report[s] identifying the photographer" (see Barham Decl. ¶ 33.C) reasonably falls within the scope of paragraph F of CPRA Request # 22-1746. However, to the extent Petitioner seeks other types of property reports or “establishment photographs,” he did not place them at issue in the CPRA Requests or the petition.

Respondent submits evidence LAPD produced all records within its possession responsive to CPRA Request # 22-1746 paragraphs F and H. Specifically, Robinson attests:

The Department did not locate any record called an ‘establishment photo,’ but I did provide Petitioner with a record the Department refers to as a ‘photographic record envelope’ - this is a photo that identifies the name, serial number, and other information of the photographer of the March 6, 2017 OIS incident. Addenda 11, also provided to Petitioner, also identifies the photographer who took the photos for the OIS investigation. The Department conducted a search for, but has not yet been able to identify any other photographic record envelope photos. For example, we have not located one that is specific to the hospital photos. (Robinson Decl. ¶ 12; see also ¶¶ 5-7, 8 aa.-vv., 9 d. [summarizing LAPD’s search for and production of records].)

In his reply declaration, Petitioner opines LAPD must possess additional responsive records. Specifically, he declares:

An LAPD photographic record envelope must exist for the nine photographs taken of Shellie Cooke at County-USC Hospital. I say that because it simply inconceivable that in a police crime scene investigation where photographs were taken, no record was made of when and where certain photographs were taken, and who took them. As a law enforcement officer and lawyer, I have been involved in some manner in hundreds of police crime scene investigations. In every investigation there was a record made of photographs any investigator or officer took, and that record included the by whom, when and where information. This is not only standard practice, it is required by California POST standards, standards that all California law enforcement agencies must meet or exceed. (Reply Barham Decl. ¶ 5.)

Petitioner had the initial burden to prove LAPD’s possession of the disputed records. Because Petitioner does not present this evidence until his reply declaration, he does not show good cause to submit this evidence for the first time in reply. (See Anderson-Barker v Superior Court (2019) 31 Cal.App.5th 528, 538; Balboa Ins. Co. v. Aguirre, supra, 149 Cal.App.3d 1002, 1010.) Moreover, the City has had no opportunity to respond to Petitioner’s belief it is “inconceivable” other records exist that have not been disclosed. The court rejects Petitioner’s new reply evidence for those reasons. (Reply Barham Decl. ¶ 5.)

Alternatively, even if the court considers the reply evidence, the court finds Petitioner has not shown LAPD failed to conduct a sufficient search for, or that LAPD possesses additional records responsive to, paragraphs F and H of CPRA Request # 22-1746. Petitioner concedes “[t]he LAPD’s ‘photographic record envelope’ is the equivalent of an Establishment Photograph because the LAPD envelope identifies the photographer, date, time and location of photographs.” (Reply Barham Decl. ¶ 4.) Robinson declares, under penalty of perjury, LAPD “conducted a search for, but has not yet been able to identify any other photographic record envelope photos. For example, [LAPD has] not located one that is specific to the hospital photos.” (Robinson Decl. ¶ 12.) Because the crime scene photographer was identified in a photographic record envelope related to the Cooke OIS incident, Petitioner’s reply evidence does not provide a sufficient reason to disbelieve Robinson’s testimony on this point—that is, the court finds Robinson credible on the issue.

The petition is denied to the extent Petitioner seeks an order “directing the City to produce all property report(s) and ‘establishment photograph(s)’ for the 259 Cooke OIS incident photographs . . . .” (Opening Brief 8:7-8.)

Redaction of Street Addresses in Officer Fuentes’ BWC Video and OIS Bullet Scene Diagram

Petitioner acknowledges after he filed his Opening Brief LAPD produced Officer Fuentes’ BWC video and Petitioner located the Cooke OIS bullet scene diagram. However, Petitioner contends LAPD must produce those records without redactions for street addresses. (Reply 5:27-6:1, 6:22-24.) For the reasons discussed as to the JPEG Photographs, LAPD complied with the law when it redacted home address information from the records at issue. (See Penal Code,

§ 832.7, subd. (b)(6); § 7922.000; City of San Jose v. Superior Court, supra, 74 Cal.App.4th at 1019.) Again, Petitioner does not show good cause to raise a new argument in reply regarding LAPD’s purported waiver of the confidentiality of home address information. Alternatively, on the merits, Petitioner does not demonstrate LAPD waived the statutory exemption applicable to home address information under Penal Code section 832.7, subdivision (b)(6).

Accordingly, the petition is denied to the extent it seeks to compel disclosure of home address information from Officer Fuentes’ BWC video and the Cooke OIS bullet scene diagram.

Petitioner Did Not Request or Place at Issue a Request for “All OIS Scene Diagrams” and LAPD Complied with the CPRA

Petitioner argues in his Opening Brief LAPD failed to disclose certain “bullet path scene diagrams” and “[a]ll Cooke OIS Scene Diagrams.” (Opening Brief 9:14, 17.) Petitioner apparently retreated from that position in reply: “Initially, Petitioner will withdraw his demand made in his opening brief for the bullet scene diagram as he has now located it. However, the City must produce the diagrams without redactions for street addresses, See Part III, supra.” (Reply 6:22-24.) Although Petitioner’s intention is not entirely clear, as the court understands it, Petitioner withdrew his request in his Opening Brief for disclosure of “[a]ll OIS Scene Diagrams” except for redacted home address information.

As discussed, Penal Code section 832.7, subdivision (b)(6) authorized LAPD’s redaction of home addresses. Petitioner did not meet his burden of demonstrating waiver.

To the extent Petitioner continues to seek disclosure of “[a]ll OIS Scene Diagrams,” the court finds the City’s arguments persuasive that Petitioner did not request such records in the CPRA Requests or place such requests at issue in the petition. Further, even if the requests were at issue, the City submits evidence LAPD complied with the CPRA by producing various OIS scene diagrams. (See Robinson Decl. ¶¶ 8, 14; Sewell Decl. ¶ 5; and Kelly Decl. ¶¶ 3-4.) Notably, Petitioner does not respond to these arguments in reply. (See Reply 6; see Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

The petition is denied to the extent Petitioner seeks further disclosure of “[a]ll Cooke OIS Scene Diagrams.” (Opening Brief 9:15-21.)

LAPD Criminalist Perez’s Handwritten Bench Notes Regarding the Touch DNA Swabbing of Cooke’s Rifle

CPRA Request # 22-1746 sought “Bench notes made by Criminalist Alan Perez N3438 concerning his touch DNA swabbing of Shellie Cooke's .22 caliber Remington rifle.” (Robinson Decl. ¶ 4.) In response, LAPD provided Petitioner with multiple reports prepared by Perez: (1) a DNA Collection Analysis report, listed as Addenda 20, prepared and signed by Perez; (2) a Bullet Path Analysis report, Addenda 22, prepared by and signed by Perez; and (3) a property report, Addenda 12, which lists as an item of property booked a “swab for possible biological material” from the Remington rifle. (Robinson Decl. ¶¶ 8 jj., 8 qq., 8 ss., and 17.)

Further, “LAPD . . . conducted a supplemental search for ‘handwritten’ notes by Mr. Perez regarding the 2017 OIS incident, and the search did turn up records.” (Robinson Decl. ¶ 17.) Robinson elaborates under oath:

However, most of the handwritten notes contained therein appear to relate to and focus on the general crime scene, evidence collection, and the bullet path analysis—so they do not appear to be responsive to Petitioner's request for notes relating to the DNA swab. The records do contain a request form for an analysis of "Evidence Collection DNA." However – and other than the bare reference to "DNA" – the form does not contain any handwritten notes discussing the swabbing of the rifle. Although these records do not appear to be responsive to Petitioner's specific request, LAPD is processing the records and intends to provide them to Petitioner, with confidential and exempt information redacted. (Robinson Decl. ¶ 17)

Criminalist Perez made notes of his evidence gathering that included the DNA swab. I know he did because (a) in the Cooke civil lawsuit, Perez testified he did a touch DNA swab on the rifle (see Exhibit J, Perez depo. @ 65:16-22, 68:1), and (b) a criminalist like Perez always make [sic] a contemporaneous record of his evidence collection. Criminalists make contemporaneous records because they know and are trained not to rely on memory. See Exhibit G, POST Learning Domain 30 -- Crime Scenes, Evidence and Forensics -- @ POST pp. 2–3 & 2-4. Because Perez prepared a typed report following his collection of all items of evidence, see Exhibit H, he made notes as he collected and/or processed individual items of evidence, including the touch DNA swabbing (referenced in item 26 of Exhibit H, second page of the report). (Reply Barham Decl. ¶ 7.)

This reply evidence, available to Petitioner when he filed his Opening Brief (see e.g., Reply Exh. J [testimony dated June 2021], should have been presented with the Opening Brief to allow the City a full and fair opportunity to respond to it. Petitioner again does not show good cause to submit this new evidence in reply. (Balboa Ins. Co. v. Aguirre, supra, 149 Cal.App.3d at 1010.) The court rejects and does not consider Petitioner’s new reply evidence on that basis. (Reply Barham Decl. ¶ 7.)

Further, even if considered, Petitioner’s new reply evidence does not demonstrate LAPD failed to conduct a reasonable search for handwritten notes of Perez or that LAPD has handwritten notes regarding his DNA swabbing of Cooke's rifle. Even though Petitioner deposed Perez, he apparently did not ask him whether he made handwritten notes regarding the DNA collection from Cooke’s firearm. (Reply Exh. J.) Petitioner’s reply evidence does not demonstrate a criminalist like Perez would have necessarily made handwritten notes. Moreover, the City submits evidence it searched for “handwritten notes discussing the swabbing of the rifle;” produced to Petitioner “a request form for an analysis of ‘Evidence Collection DNA’ ”; and did not locate any other responsive records. (Robinson Decl. ¶ 7.) Respondent’s evidence proves it complied with the CPRA, and Petitioner does not rebut that evidence.

The petition is denied to the extent Petitioner seeks further disclosure of handwritten bench notes regarding DNA swabbing of Cooke’s rifle.

Petitioner acknowledges LAPD produced “a copy of recorded tactical communications for the Cooke incident,” but he contends LAPD’s disclosure was incomplete because the recording “stopped at about 5:30 p.m. (1730 hours) whereas the Cooke shooting occurred 15 minutes later at about 5:45 p.m. (1745 hours).” (Opening Brief 9:8-10; see also Barham Decl. ¶ 33.F.)

The City argues Petitioner did not place his request for “tactical communications” at issue because it is not mentioned in the petition. (Opposition 8:16-17.) The court agrees.

Even though the CPRA Requests sought disclosure of “audio recordings and computer assisted dispatch information for the call relating to the incident and subsequent radio . . . communication in digital format” (see Robinson Decl. ¶ 3), Petitioner did not include any allegations concerning LAPD’s failure to comply with the CPRA as to this part of the CPRA Requests. (See Pet. ¶¶ 2-13.)

As noted, this CPRA petition is “framed by the pleadings.” (See Tsemetzin v. Coast Fed. Savings Loan Assn., supra, 57 Cal.App.4th at 1342.) The parties’ legal briefs “may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.” (Ibid.) In reply, Petitioner cites no authority to the contrary and he also fails to address the City’s assertion his request for unredacted tactical communications was not pleaded in the petition. (See Reply 6; Sehulster Tunnels, supra, 111 Cal.App.4th at 1345, fn. 16 [failure to address point is “equivalent to a concession”].) Accordingly, Petitioner has forfeited any argument concerning LAPD’s compliance with the CPRA for his request for recorded tactical communications for the Cooke incident.

Alternatively, even if Petitioner did not forfeit the issue, the City submits sufficient evidence LAPD produced to Petitioner the “[a]udio recording of non-exempt portions of radio tactical communications relating to the March 6, 2017 OIS.” (Robinson Decl. ¶ 10. b.) Specifically, Robinson attests:

I have reviewed a recording containing the tactical communications relating to the 2017 OIS, but the recording also contains communications relating to other incidents that LAPD officers responded to during the time of the OIS. That is because the audio feed on which the communications took place was for use by LAPD's entire Rampart Division, so the recording contains communications about all incidents that the Rampart Division responded to during the time of the 2017 OIS. Those other communications consist of calls for service, LAPD responses thereto, and criminal investigations. Therefore, those other communications are exempt from disclosure under the investigation records exemption of Government Code Section 7923.600. As mentioned in Paragraph 10, above, the Department has provided Petitioner with an audio recording of non-exempt portions of the tactical communications, which relate only to the March 6, 2017 OIS. (Robison Decl. ¶ 13.)

Petitioner argues “because officers responding to the Cooke incident were told to use Frequency 35 as the assigned tactical frequency, see Exhibit I, presumably only Cooke-related broadcasts were on that frequency.” (Reply Barham Decl. ¶ 9.) Accordingly, Petitioner contends Robinson’s testimony there were broadcasts on Frequency 35 between 5:30 and 5:45 p.m. and not related to the Cooke incident “is not credible.” (Reply Barham Decl. ¶ 9.)

The City should address its position as to this reply evidence at the hearing.[9] Subject to argument or clarification, the court understands Robinson to testify that the “tac frequency” used for the Cooke incident also recorded communications about other incidents in the Rampart Division. (Robinson Decl. ¶ 13.) Although Petitioner disagrees with the testimony, Petitioner has not provided sufficient evidence regarding the operations and tactical communications of LAPD, including the Rampart Division, to support a finding that Robinson’s testimony is incorrect.

The petition is denied to the extent Petitioner seeks further disclosure of the “Complete Unredacted Tactical Communications recording” for the Cooke OIS incident. (Opening Brief 8:25.)

Physical Access to LAPD’s Force Investigation Division (FID) Investigatory Files

Petitioner seeks physical access to the FID’s investigatory files for the Cooke OIS incident “[t]o insure that he has copies of all the disclosable records he sought,” specifically “all OIS scene diagrams, including the ones showing bullet path trajectories.” (Opening Brief 11:17-19.)

The City asserts “Petitioner did not ask for the original investigation file in his underlying CPRA requests or the Petition, nor did he seek to physically inspect the FID investigation file in either his CPRA requests or the Petition, so he cannot place this at issue for the first time in his opening brief.” (Opposition 11:17-20.) The court agrees.

Petitioner does not respond to the claim in reply. (See Reply 8; Sehulster Tunnels, supra, 111 Cal.App.4th at 1345, fn. 16 [failure to address point is “equivalent to a concession”].) Petitioner did not plead in the petition he was seeking physical inspection of the FID investigatory files. Nor did he include in the petition any allegations that the City could only comply with the CPRA by allowing a physical inspection of the FID investigatory files. Accordingly, Petitioner did not place his request for physical inspection of the FID investigatory files at issue. (See Tsemetzin v. Coast Fed. Savings Loan Assn., supra, 57 Cal.App.4th at 1342, supra, 57 Cal.App.4th at 1342.)[10]

Alternatively, even if Petitioner did not forfeit the issue, Petitioner does not show the City has a mandatory duty under the CPRA to permit physical inspection of the FID investigatory files. Petitioner relies on sections 7922.525, subdivision (a) and 7922.530, subdivision (b) of the CPRA as support for his physical inspection claim.

Public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise provided.

A requester who inspects a disclosable record on the premises of the agency has the right to use the requester’s equipment on those premises, without being charged any fees or costs, to photograph or otherwise copy or reproduce the record in a manner that does not require the equipment to make physical contact with the record.

The agency may impose any reasonable limits on the use of the requester's equipment that are necessary to protect the safety of the records or to prevent the copying of records from being an unreasonable burden to the orderly function of the agency and its employees. In addition, the agency may impose any limit that is necessary to maintain the integrity of, or ensure the long-term preservation of, historic or high-value records.

Here, in the CPRA Requests, Petitioner sought multiple LAPD records related to the Cooke OIS incident. In response, LAPD produced multiple public records to Petitioner, which are available for review or download online (at no charge), including the FID Executive Summary of the incident; 147 crime scene photos in PNG format; the OIG Report of the incident; BWV for several officers; 911 audio clips; the Use of Force Review Board report; Leica data files; and various “supplemental” records and “addenda.” (Robinson Decl. ¶¶ 8-9; Sewell Decl. generally.) In his petition, Petitioner asserted LAPD failed to comply with the CPRA in certain respects. However, Petitioner has not demonstrated that at trial.

In his Opening Brief, Petitioner specifically asserted he needed to physically inspect the FID investigatory files to “be assured he has all OIS scene diagrams, including the ones showing bullet path trajectories.” (Opening Brief 11:17-19.) However, Petitioner has since withdrawn his demand for OIS scene diagrams, including the bullet scene diagram. (Reply 6:22-24.) Moreover, Petitioner did not request such records in the CPRA Requests or place such requests at issue in the petition. (Opposition 11:17-20.) Even assuming the requests were properly at issue, the City submits evidence LAPD complied with the CPRA by producing various OIS scene diagrams. (Robinson Decl. ¶¶ 8, 14; Sewell Decl. ¶ 5; and Kelly Decl. ¶¶ 3-4.)[11] Accordingly, Petitioner’s specific justification for a physical inspection—to ensure he has all OIS scene diagrams—is moot.

Notably, for any FID investigatory files that are disclosed pursuant to the CPRA, the City is required to redact personal data; identifying information of witnesses; and confidential medical, financial, or similar information. (Robinson Decl. ¶ 7; Pen. Code, § 832.7, subd. (b)(6)(A)-(D).) Petitioner is not authorized by sections 7922.525, subdivision (a) and 7922.530, subdivision (b) to inspect that confidential information.

LAPD is authorized to place “any reasonable limits on the use of the requester's equipment that are necessary to protect the safety of the records or to prevent the copying of records from being an unreasonable burden to the orderly function of the agency and its employees.” (§ 7922.530, subd. (c).) The evidence, summarized above, demonstrates LAPD produced the records requested by Petitioner. LAPD’s production supports the City’s contention “[i]t would therefore pose an unnecessary and unreasonable burden to require LAPD to provide Petitioner with physical access to records he already has.” (Opposition 12:7-8.) Of course, Petitioner is not precluded from submitting a new CPRA request to the extent he seeks to inspect records not previously requested.

Finally, LAPD is also authorized “to impose any limit that is necessary to maintain the integrity of, or ensure the long-term preservation of, historic or high-value records.” (§ 7922.530, subd. (c). See Robinson Decl. ¶ 15 & Exh. A; Sewell Decl. ¶ 12 [high-value historical records].) Petitioner has not identified any authority requiring an agency to allow a CPRA requester to conduct a physical inspection of public records pursuant to sections 7922.525, subdivision (a) and 7922.530, subdivision (b) where the agency has produced the records requested under the circumstances here.

The court finds neither the CPRA Requests nor the petition requested a physical inspection of FID investigatory files. Alternatively, Petitioner has not demonstrated he is entitled to such an inspection where the agency has provided a fully responsive production.

Physical Access to LAPD Computer Terminal to View the Cooke OIS Scene Recreation and Leica Data Files

Also citing sections 7922.525, subdivision (a) and 7922.530, subdivision (b) for authority, Petitioner contends “the City must make its Cooke OIS scene recreation [i.e., Leica data files] available on a City or LAPD monitor, for Petitioner to view and record (by Petitioner using his video camera to record what is being shown on the monitor).” (Opening Brief 10:12-14; see Barham Decl. ¶ 34.)

Petitioner explains: “Leica-Geosystems sells hardware and associated software for scanning and surveying crime scenes to reproduce the scene visually in a 3D format viewable on a computer monitor.” (Barham Decl. ¶ 25.) In addition, “LAPD used the Leica’s Crime Scene Survey equipment and software at the scene of the 3/6/17 Cooke OIS.” (Barham ¶ 28; see Sewell Decl. generally.)

Sewell’s “role in the March 6, 2017 OIS investigation was to document, starting at the scene of the incident, the evidence and points of interest that were identified by the investigators and firearms analysis unit, and [he] was the person who operated the Department’s Leica C10 scanner to take scans to document those items.” (Sewell Decl. ¶ 3.)[12]

In response to the CPRA Requests, LAPD provided to Petitioner a flash drive, at no cost, that includes “all of the same Leica C10 files and data – including raw scans and scan data – that LAPD has from the investigation of the March 6, 2017 OIS incident.” (Sewell Decl. ¶ 8; see also Robinson Decl. ¶ 9a.) While Petitioner asserted in his Opening Brief certain Leica files were “missing and/or corrupted” in the production (Opening Brief 5:27-28; Barham Decl. ¶¶ 29-33; and Salinas Decl. ¶¶ 13-14), the City submitted evidence rebutting Petitioner’s statement. (Sewell Decl. ¶¶ 9-11.) After consultation with his expert (Joel Salinas), Petitioner withdrew his demand for further production of the Leica data files. (Reply 4:12-13.)

Respondent also submits evidence, unrebutted by Petitioner, that LAPD’s use of force records and files are high-value, historical records. (Robinson Decl. ¶ 15 & Exh. A; Sewell Decl. ¶ 12.) Sewell attests:

The Department views and treats records from use of force and OIS investigations as historical records and, as such, has heightened rules regarding their handling. Due to the high value and historical nature of use of force investigation records, and the sensitive nature of the underlying investigations – especially when they are still in progress – access to FID servers containing such records is limited as to other the Department employees. One reason to limit access is to maintain the integrity of the investigation records and files, both for historical purposes and also because other governmental agencies may need such records when conducting their own investigations. With respect to the Leica files Petitioner would like to view, they are maintained on a server that only FID’s Investigative Support Unit has access to. Moreover, they are viewable only on computers – like mine – that have the software needed to view the files. Allowing non-authorized persons to view these files on restricted-access FID computers would compromise the integrity of the files, and could also risk disclosure of other confidential, non-exempt records and files stored on those computers. (Sewell Decl. ¶ 12.)

Subdivision (c) of § 7922.530 is inapplicable because Petitioner nor [sic] does he seek himself to use a City or LAPD computer or network; he seeks only to view on an [sic] City or LAPD monitor (and record what is displayed on the monitor) the recreated Cooke OIS scene based on the Lecia data files and whatever computer program the LAPD uses. Furthermore, as it will be an authorized City employee who sits at the computer, calling up the files and running the software, Petitioner will have no contact whatsoever with any keyboard, software program, data file, or hardware. Thus in no way will Petitioner be able to compromise the security of either a computer or network, nor will he be able to alter, modify, change, or delete any computer file. . . . (Reply 7:22-8:1.)

The plain language of section 7922.530, subdivision (c) permits a public agency to impose reasonable limits on a CPRA requester’s inspection of “historic or high-value” records on an agency computer terminal to ensure “the integrity” of such records. Petitioner’s computer expert, Dwight Cook, asserts it is impossible to damage, compromise, or change computer files simply by viewing them on a computer monitor. (Reply Dwight Cook Decl. ¶ 2.) However, Petitioner’s evidence does not show that the “integrity” of sensitive records cannot be compromised in other ways. Given the sensitive nature of FID investigations and the information contained on FID computer servers, it is reasonable to infer that viewing Leica files on a FID computer, even with an FID employee “calling up the files,” could create security risks for maintaining the “integrity” of the sensitive records and information on the FID computers. The CPRA allows LAPD to place reasonable limits on a request to view information on FID computers.

As noted, Petitioner has not identified any authority requiring an agency to allow a CPRA requester to conduct a physical inspection of public records pursuant to sections 7922.525, subdivision (a) and 7922.530, subdivision (b) where the agency has produced the records requested under the circumstances here.

Petitioner has not demonstrated he is entitled to view the Cooke OIS scene recreation and Leica data files on a LAPD computer terminal. LAPD has produced the original Leica data files to Petitioner, and there is no evidence Petitioner has been unable to review those files or the OIS scene recreation. Further, especially since the complete Leica files have already been produced to Petitioner (and the public), the City’s refusal to permit Petitioner to view the Cooke OIS scene recreation and Leica data files on a LAPD computer terminal is a reasonable limit needed to maintain the integrity of, or ensure the long-term preservation of, historic or high-value records. (§ 7922.530, subd. (c).)

The petition is denied to the extent Petitioner contends that “the City must make its Cooke OIS scene recreation available on a City or LAPD monitor, for Petitioner to view and record . . . .” (Opening Brief 10:12-14.)

[1] All undesignated statutory references are to this code.

[2] Petitioner did not move to compel Sewell’s deposition. Further, the City objected to the notice of deposition on multiple grounds, not merely relevance. (See Pet.’s Objection Exhs. K, L.) Petitioner does not specify the legal basis upon which Sewell’s declaration would be “inadmissible” in these circumstances even if the City “refused to make him available for deposition.”

[3] Neither Petitioner nor Respondent has submitted a copy of CPRA Request #20-588. The petition summarizes part of the request, while Petitioner’s declaration paraphrases the request. (Pet. ¶ 6; Barham Decl. ¶ 32.) Petitioner’s summary includes certain additional content that Respondent contends was not part of the original request. LAPD analyst Shavonne Robinson, who processed the request, provides a “verbatim” list of the categories of records requested. (Robinson Decl. ¶ 3.) The court reproduces above the “verbatim” list from Robinson’s declaration.

[4] Petitioner has withdrawn his demand for production of the original Lecia data files and MDT printouts. (Reply 4:8-15; 6:9-10; Reply Barham Decl. ¶ 2.) Accordingly, except where relevant to other issues, the court does not discuss the two withdrawn requests. Petitioner also indicates LAPD produced Officer Fuentes’ BWC video and Petitioner located the Cooke OIS bullet scene diagram after he filed his Opening Brief. Petitioner contends, however, LAPD must produce those records without redactions of street addresses. (Reply 5:27-6:1, 6:22-24.) Accordingly, the address redaction issue alone is discussed herein.

[5] For a discussion of the contents of “metadata,” see Declaration of Dwight Cook, generally, and Crews v. Willows Unified School District (2013) 217 Cal.App.4th 1368, 1372, fn. 2.

[6] Further, “individuals have a substantial privacy interest in their home addresses.” (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1019.) “In determining whether the public interest in nondisclosure of individuals’ names and addresses outweighs the public interest in disclosure of that information, courts have evaluated whether disclosure would serve the legislative purpose of ‘shed[ding] light on an agency's performance of its statutory duties.’ ” (Ibid.) Petitioner has not developed any argument suggesting disclosure of the private home addresses in the metadata would shed light on LAPD’s performance of its statutory duties. Accordingly, the public interest in disclosure of home address information is minimal, and there is a clear overbalance on the side of confidentiality.

[7] Because the CPRA “was modeled on its federal predecessor,” the Freedom of Information Act (FOIA), the “judicial construction of the FOIA . . . serve[s] to illuminate the interpretation of its California counterpart.” (Regents of the University of California v. Superior Court (2013) 222 Cal.App.4th 383, 400.)

[8] Relatedly, CPRA Request # 22-1746 at paragraph H sought “[a]ny reports concerning photographing Shellie Cooke at L.A. County-U.S.C. Medical Center including any written requests to photograph her.” (Robinson Decl. ¶ 4.)

[9] Petitioner stated in his initial declaration “LAPD Dispatch assigned to the involved officer a ‘tac frequency,’ i.e., separate radio frequency channel devoted solely for the Cooke incident-related broadcasts.” (Barham Decl. ¶ 33.F.) Petitioner did not argue in his Opening Brief LAPD assigned Frequency 35 only to the Cooke incident.

[10] In light of the court’s conclusion, it need not decide whether Petitioner was required to request a physical inspection of the FID investigatory files in his CPRA Requests.

[11] The City argues, and submits evidence, the diagram referred to in paragraph 33.G of Petitioner’s declaration “is not an LAPD record created for the investigation of the 2017 OIS incident; rather, it was created specifically for litigation in a civil action that was filed in October 2018, Los Angeles Superior Court Case No. 18STCV00882.” (Opposition 10:26-28; see Kelly Decl. ¶ 3.) Petitioner does not respond to or dispute this evidence in reply.

[12] “The Leica C10 scanner that FID used to conduct the survey scans for the March 6, 2017 OIS investigation was an early-generation scanner that was very sensitive and had limited capabilities and features compared to what has come out on the market since.” (Sewell Decl.

¶ 4.)