Judge: Walter P. Schwarm, Case: 30-2022-01291297, Date: 2023-08-22 Tentative Ruling
Petitioners’ (Chicansx Unidxs de Orange County, American Civil Liberties Union of Northern California, and American Civil Liberties Union of Southern California) Motion for Judgment on the Verified Petition for Writ of Mandate and Complaint (Motion), filed on 1-26-23 under ROA No. 53, is GRANTED in part and DENIED in part as set forth below.
Petitioners filed their Verified Petition (Petition) on 10-31-22 under ROA No. 2. The Verified Petition alleges the following causes of action: (1) Writ of Mandate for Violation of Government Code sections 6250 et seq.; (2) Declaratory Relief; and (3) Injunctive Relief. (Petition.) Respondents (Todd Spitzer and County of Orange) filed their Answer to the Petition on 1-3-23 under ROA No. 21.
The Petition pertains to five requests pursuant to the California Public Records Act (CPRA). (Petition; ¶ 3.) The Petition alleges the five requests were made on 2-4-21 (Petition, ¶ 38), 7-23-23 (Petition, ¶ 60), 9-27-21 (Petition, ¶ 40), 2-18-22 (Petition, ¶ 46), and 7-8-22 (Petition, ¶ 53).
The Motion states, “OCDA failed to comply with its PRA obligations when responding to the five requests at the core of this lawsuit—refusing to produce any prosecutorial data in response to four PRA requests, and asserting overbroad and unsupported exemptions in response to a fifth request for policy and training materials. Evidence drawn from approximately thirty other requests produced by OCDA—and an internal OCDA email—show that OCDA’s refusal to produce prosecutorial data is systemic. In late February 2021, the agency changed its policy and began refusing to extract and produce electronically stored prosecutorial data in response to PRA requests, where it previously routinely provided such records. O” (Motion; 8:26-9:5.) As to the Petition’s request for prosecutorial data, the Motion states, “OCDA refused to produce any responsive data. It asserted, consistently, that the requests sought data in a form not currently stored in OCDA’s system and thus were records that did not exist, and, in some cases, that the requests were unduly burdensome. (9:10-13; Italics in Motion.) As to the Petition’s request for policies and training materials, the Motion asserts, “In response, OCDA produced fewer than 50 records, slowly over fifteen months. . . . OCDA refused to disclose large quantities of the requested records, claiming broad and unsupported exemptions. OCDA asserted that it withheld records on the grounds of deliberative process privilege, attorney work product, or copyright; or because the request was unduly burdensome. . . . However, OCDA provided no specificity as to the records withheld, which exemptions applied to which records, or the requisite justification for the withholding. . . . OCDA also refused to justify numerous redactions. . . .” (Motion; 10:28-11:7.)
Respondents’ Opposition to Plaintiffs’ Motion for Judgment on Verified Writ of Mandate (Opposition), filed on 3-27-23 under ROA No. 65, contends, “Petitioner-Plaintiffs (“Petitioners”) seek, by way of the California Public Records Act (“CPRA”), local summary criminal history information in violation of Penal Code section 13300. In addition, their lawsuit is a thinly-veiled attempt to circumvent the statute1 that gives the Orange County District Attorney (‘OCDA’) and other local prosecutorial agencies until March 1, 2027, to compile and release many of the same prosecutorial data elements at issue here.” (Opposition; 1:3-7 (Emphasis in Opposition.).) As to the prosecutorial data, the Opposition states, “In summary, publicly providing records from a criminal history database that can be used to identify the holder of the underlying record will, in general, violate the law. As such, these records are exempt from disclosure under the CPRA pursuant to Government Code section 7927.705.” (Opposition; 8:11-13.) Relying on Penal Code section 13370, the Opposition asserts, “Petitioners do not and cannot articulate the public interest served by forcing OCDA to undertake the ‘gargantuan effort’ of creating records and producing this data prior to March 1, 2027, at taxpayer expense. Accordingly, this data is presently exempt from disclosure pursuant to section 7927.705.” (Opposition; 9:9-12.) As to the policies and training materials, the Opposition asserts, “Here, OCDA properly redacted training materials that were independently protected pursuant to the attorney work product doctrine . . . ” (Opposition; 9:18-19.) Further, the Opposition states, “As described in the Privilege Log attached as Exhibit 1 to the Declaration of Johanna Kim, many of the training materials are protected by the investigatory file privilege set forth in CPRA . . . .” (Opposition; 10:15-16.) Finally, the Opposition contends, “OCDA also properly withheld training materials as protected by the deliberative process privilege as well as undue burden pursuant to section 7922.000, which is the ‘catchall’ exemption to the CPRA that requires the Court to engage in a balancing test involving the public interest.” (Opposition; 10:28-11:2.)
The parties filed a Joint Statement of Issues (Joint Statement) on 7-19-23 under ROA No. 83.
Law:
National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward (2020) 9 Cal.5th 488, 492 (National Lawyers), states, “The California Public Records Act (PRA) establishes a right of public access to government records. ‘Modeled after the federal Freedom of Information Act (5 U.S.C. § 552 et seq.), the PRA was enacted for the purpose of increasing freedom of information by giving members of the public access to records in the possession of state and local agencies.’ [Citation.] In enacting the statute in 1968, the Legislature declared this right of access to be ‘a fundamental and necessary right of every person in this state’ (Gov. Code, § 6250)—a declaration ratified by voters who amended the California Constitution in 2004 to secure a ‘right of access to information concerning the conduct of the people's business’ (Cal. Const., art. I, § 3, subd. (b)(1), added by Prop. 59, Gen. Elec. (Nov. 2, 2004)).” [Citation.]”
Becerra v. Superior Court (2020) 44 Cal.App.5th 897, 913 (Becerra), provides, “Pursuant to the California Constitution, the CPRA must be ‘broadly construed’ because its statutory scheme ‘furthers the people's right of access.’ (Cal. Const., art. 1, § 3, subd. (b)(2).) Nevertheless, the act does not confer an absolute right of access. As part of the CPRA, the Legislature included a provision declaring it was ‘mindful of the right of individuals to privacy.’ (Gov. Code, § 6250.) This express policy declaration ‘ “bespeaks legislative concern for individual privacy as well as disclosure.” [Citation.] “In the spirit of this declaration, judicial decisions interpreting the [CPRA] seek to balance the public right to access to information, the government's need, or lack of need, to preserve confidentiality, and the individual's right to privacy. [Citations.]” ’ [Citation.][¶] The CPRA balances the dual concerns for privacy and disclosure by providing for various exemptions that permit public agencies to refuse disclosure of certain public records. (Gov. Code, §§ 6254–6255.) For instance, the CPRA does not require agencies to permit public inspection of records that are exempted or prohibited from public disclosure pursuant to federal or state law, including Evidence Code provisions relating to privilege. (Gov. Code, § 6254, subd. (k) (hereafter Gov. Code, § 6254(k).) Also, as discussed post, law enforcement investigatory files were, until recently, categorically exempted from the CPRA's general requirement of disclosure. (Gov. Code, § 6254, subd. (f) (hereafter Gov. Code, § 6254(f)).) ‘ “In large part, these exemptions are designed to protect the privacy of persons whose data or documents come into governmental possession.” ’ [Citation.] CPRA exemptions are narrowly construed [citation], and the agency opposing disclosure bears the burden of proving an exemption applies. [Citations.]”
City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 627 (San Jose), states, “CPRA requests invariably impose some burden on public agencies. Unless a records request is overbroad or unduly burdensome, agencies are obliged to disclose all records they can locate ‘with reasonable effort.’ [Citation.] Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches, however. [Citations.] In general, the scope of an agency's search for public records ‘need only be reasonably calculated to locate responsive documents.’ [Citations.]”
“The people have the right of access to information concerning the conduct of the people’s business, and, therefore, . . . the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, § 3, subd. (b)(1).)
Government Code section 7923.000 states, “Any person may institute a proceeding for injunctive or declarative relief, or for a writ of mandate, in any court of competent jurisdiction, to enforce that person's right under this division to inspect or receive a copy of any public record or class of public records.”
Government Code section 7922.525, subdivision (a), states, “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.”
Government Code section 7921.000 states, “In enacting this division, the Legislature, mindful of the right of individuals to privacy, finds and 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.” Government Code section 7922.000 states, “An agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division, or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”
Government Code section 7927.705 states, “Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”
Government Code section 7923.600, subdivision (a), states, “(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and 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.”
Penal Code section 13300 states in part, “(a) As used in this section: [¶] (1) ‘Local summary criminal history information’ means the master record of information compiled by any local criminal justice agency pursuant to Chapter 2 (commencing with Section 13100) of Title 3 of Part 4 pertaining to the identification and criminal history of any person, such as name, date of birth, physical description, dates of arrests, arresting agencies and booking numbers, charges, dispositions, and similar data about the person. . . . [¶] (h) It is not a violation of this article to disseminate statistical or research information obtained from a record, provided that the identity of the subject of the record is not disclosed. . . . [¶] (j) Notwithstanding any other law, a public prosecutor may, in response to a written request made pursuant to Article 1 (commencing with Section 7922.500) and Article 2 (commencing with Section 7922.525) of Chapter 1 of Part 3 of Division 10 of Title 1 of the Government Code, provide information from a local summary criminal history, if release of the information would enhance public safety, the interest of justice, or the public's understanding of the justice system and the person making the request declares that the request is made for a scholarly or journalistic purpose. If a person in a declaration required by this subdivision willfully states as true any material fact that person knows to be false, the person shall be subject to a civil penalty not exceeding ten thousand dollars ($10,000). The requestor shall be informed in writing of this penalty. An action to impose a civil penalty under this subdivision may be brought by any public prosecutor and shall be enforced as a civil judgment. . . .”
Penal Code section 13305, subdivision (a), states, “It is not a violation of this article to disseminate statistical or research information obtained from a record, provided that the identity of the subject of the record is not disclosed.”
Penal Code section 13370 states in part, “(d)(1) Beginning March 1, 2027, every agency statewide shall collect every data element in subdivision (e) for cases in which a decision to reject charges or to initiate criminal proceedings by way of complaint or indictment has been made by that agency from that date forward. Each data element shall be collected according to the definitions provided in this section with any ambiguities to be resolved by the department in the data dictionary described in clause (i) of subparagraph (I) of paragraph (1) of subdivision (b) for uniform application statewide. Each data element shall be submitted in a format designated by the department to be the most appropriate and cost effective to carry out the objectives of this article. Any ambiguities regarding the substance or timing of the collection described in this paragraph shall be resolved by the department by letter guidelines issued to all prosecution agencies upon consultation with the Prosecutorial Transparency Advisory Board. . . .”
Welfare and Institutions Code section 827, subdivision (a)(4), states, “A juvenile case file, any portion thereof, and information relating to the content of the juvenile case file, may not be disseminated by the receiving agencies to a person or agency, other than a person or agency authorized to receive documents pursuant to this section. Further, a juvenile case file, any portion thereof, and information relating to the content of the juvenile case file, may not be made as an attachment to any other documents without the prior approval of the presiding judge of the juvenile court, unless it is used in connection with, and in the course of, a criminal investigation or a proceeding brought to declare a person a dependent child or ward of the juvenile court.”
Welfare and Institutions Code section 827, subdivision (b)(1), describes the confidentiality of juvenile court records by stating in part, “While the Legislature reaffirm its belief that juvenile court records, in general, should be confidential . . . .” S.V. v. Superior Court (2017) 13 Cal.App.5th 1174, 1180 (S.V.), provides, “The Legislature has provided that ‘juvenile court records, in general, should be confidential.’ (§ 827, subd. (b)(1).) While most court records are available and open to the public for inspection, there are strong public policy reasons for keeping the records of juvenile proceedings confidential; among them, to protect children from adverse consequences and unnecessary emotional harm. [Citation.] A minor's ‘ “juvenile case file” ’ generally contains all the various documents that are relevant in a juvenile case, including police and probation records. (Cal. Rules of Court, rule 5.552(a).) [¶] By statute, a minor's confidential juvenile case file may routinely be accessed by certain designated parties such as ‘[c]ourt personnel,’ a ‘district attorney,’ and a ‘minor's parent or guardian.’ (§ 827, subd. (a)(1).) The Legislature has also created a procedure allowing third parties to gain access to a minor's confidential juvenile case file upon the filing of a petition with proper notice. (§ 827, subd. (a)(1)(P).) ‘If petitioner shows good cause, the court may set a hearing.’ (Cal. Rules of Court, rule 5.552(e)(2).) ‘In determining whether to authorize inspection or release of juvenile case files . . . the court must balance the interests of the child and other parties to the juvenile court proceedings, the interests of the petitioner, and the interests of the public.’ (Cal. Rules of Court, rule 5.552(e)(4).) If a court ‘determines that all or a portion of the juvenile case file may be disclosed, the court must make appropriate orders . . . .’ (Cal. Rules of Court, rule 5.552(e)(7).) ‘The court may issue protective orders to accompany authorized disclosure, discovery, or access.’ (Cal. Rules of Court, rule 5.552(e)(8).)”
Issue No. 1—Exemption Claimed Under Government Code section 7927.05 Based on Penal Code section 13300.
As to the requests 2-4-21, 9-27-21, 2-18-22, and 7-8-22 requests for prosecutorial data, the Motion, the Opposition states, “. . . publicly providing records from a criminal history database that cam be used to identify the holder of the underlying record will, in general, violate the law. As such, these records are exempt from disclosure under the CPRA pursuant to Government Code section 7927.05.” (Opposition; 8:11-13.) Petitioner’s Reply in Support of Motion for Judgment on Verified Petition (Reply), filed on 4-28-23 under ROA No. 69, states, “Petitioners do not seek such identifying information.” (Reply; 3:11.)
Although the 2-4-21 (through the 5-13-19 request), 2-18-22, and 7-8-22 requests (Petition; Exhibits C, J, and Q seek statistical data, they also request the identity of the of the individuals that that are the subjects of those records. The 2-4-21 (through the 5-13-19 request) uses the term “unique identifiers.” (Petition, Exhibit A.) The 2-18-22 request specifically seeks disclosure of the “Name of Defendant,” “Court case number(s),” “Arresting agency number(s),” Any other unique identifiers,” and “Age or date of birth.” (Petition; Exhibit J.) The 7-8-22 requests seeks disclosure of the “Case number,” “Defendants first and last names,” and “Defendants’ Age or Date of Birth.” (Petition; Exhibit Q.)
The 2-4-21 (through the 5-13-19 request), 2-18-22, and 7-8-22 requests seek disclosure of the identity of the subjects of those records. To the extent that any of the requests for prosecutorial data sought information about the identity of the individuals that are subjects of the requested information, the court finds that Respondent was justified in refusing to disclose those records under Penal Code section 13305. Thus, Respondent has carried its burden of proving that the Government Code section 7927.705 exemption applies based on Penal Code section 13305. The court also finds, however, finds that Penal Code section 13305 does not otherwise prevent the disclosure of statistical or research information provided that identity of the subject of the records is not disclosed.
The Joint Statement states, “In an effort to resolve the dispute about whether the requests seek the production of local summary criminal history information, Petitioners are seeking only anonymized data.” . . . Respondents dispute this ‘clarification’ is properly raised without Petitioners amending their complaint and therefore dispute that any request for ‘anonymized’ data is properly before the court.” (Joint statement, 3:10-16.) The court notes that Respondents did not specifically identify Penal Code section 13300 in any of their responses to the requests at issue. (Petition; Exhibits B, D, L, R, and X.) Since Respondents did not specifically raise Penal Code section 13300, Petitioners did not have an opportunity to limit their requests to “anonymized data.” Since the court is considering the Opposition’s contention regarding the applicability to Penal Code section 13300, the court will allow Petitioners to limit their requests to “anonymized data.”
Issue No. 2—Exemption Claimed Under Government Code section 7927.705 Invoking the Provisions of Penal Code section 13370:
As to the application of Penal Code section 13370, it appears that some of the requested prosecutorial data is the some of the requested data is similar to the data elements in Penal Code section 13370, subdivision (e). Respondents have not demonstrated that the obligations imposed by recently enacted Penal Code section 13370 exempt Respondents from disclosing prosecutorial data under the CPRA even though the requested data may overlap with the data elements in Penal Code section 13370, subdivision (e).
Issue No. 3—Exemption Claimed Under Government Code section 7927.705 Invoking Attorney Work Product Doctrine and Deliberative Process Privilege:
Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 911 (Citizens), provides, “The attorney work-product doctrine provides two levels of protection for attorney work product—absolute protection and qualified protection: [¶] ‘(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. [¶] ‘(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.’ (Code Civ. Proc., § 2018.030.) [¶] Work produced by an attorney's agents and consultants, as well as the attorney's own work product, is protected by the attorney work-product doctrine. [Citation.]”
In Humane Society of U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, 1263, fn. 27 (Humane Society), the court explained, “California courts recognize a ‘deliberative process privilege’ under section 6255’s catchall exemption . . . .” Times Mirror Company v. Superior Court (1991) 53 Cal.3d 1325, 1442 (Times Mirror) states, “The key question in every case is ‘whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.’ [Citation.] Even if the content of a document is purely factual, it is nonetheless exempt from public scrutiny if it is ‘actually . . . related to the process by which policies are formulated’ [citation] or ‘inextricably intertwined’ with ‘policy-making processes.’ [Citations.]” (See also, American Civil Liberties Union of Northern California v. Superior Court (2011) 202 Cal.App.4th 55, 75-76.)
February 4, 2021 Request and February 28, 2021 Response (Petition; Exhibits A and B):
Item 1—The court GRANTS the Petition as to this item, which was a follow-up to item 2 in an earlier request dated 5-19-19, and seeks “information or guides related to felony division programs,” except as to material containing attorney work-product. (Gov. Code, § 7927.705 and Code Civ. Proc., 2018.030.)
Item 2—The court DENIES the Petition as to this item, which is a follow-up to item 3 in the earlier request of 5-19-19 because Respondent—Orange County District Attorneys’ Office (OCDA) provided a substantive answer and seeks information related to how many parole hearings respondent OCDA’s office attended in 2016, 2019, and 2020 because the response contains a substantive answer. . (Petition; Exhibit B.)
Item 3—The court GRANTS the Petition as to this item, which is a follow-up to item 1 in the earlier request of 5-19-19 and seeks updated “available data from 2019 and 2020” for “Records of prosecution data,” including unique identifiers, charges, and outcome. Petitioners are entitled to receive “statistical or research information” obtained from OCDA’s records, as long as identifying information about the subjects of the records, e.g., names and birthdates, is not disclosed. (Penal Code, §§ 13300 and 13305). In addition, in responding to the prior request, Respondents properly excluded information regarding cases pertaining to “minors prosecuted in Juvenile Court as confidential and non-disclosable, and this restriction applies in connection with the current request. (Gov. Code, § 7927.705 and Welf. & Inst. Code, § 827.) The court DENIES the Petition as to this request to the extent it requests disclosure of information protected by Welfare and Institutions Code section 827.
September 27, 2021 Request and October 7, 2021 Response (Petition; Exhibits C and D):
Item 1—The court GRANTS the Petition as to this item, which seeks the number of prosecutions for Penal Code §§ 314(a), 372, 647(a) and (b)(1) and (2), 653.22, and 266(h) and (i), broken down by race and gender. The request does not seek any identifying information about the subjects of the records. However, the disclosure should exclude information regarding juveniles. The court DENIES the Petition as to this request to the extent it requests disclosure of information protected by Welfare and Institutions Code section 827.
Item 2—The court GRANTS the Petition as to this item, which seeks the number of reports written involving sex work related prosecutions from 2019 to present, broken down by race and gender. prosecutions for Penal Code §§ 314(a), 372, 647(a) and (b)(1) and (2), 653.22, and 266(h) and (i), broken down by race and gender. The request does not seek any identifying information about the subjects of the records. The court DENIES the Petition as to this request to the extent it requests disclosure of information protected by Welfare and Institutions Code section 827.
Item 3—The court GRANTS the Petition as to this item, which seeks “information or guides related to felony division programs,” except as to material containing attorney work-product. (Gov. Code, § 7927.705 and Code Civ. Proc., 2018.030.)
Item 4—The court GRANTS the Petition as to this item, which seeks “All documents regarding the presence or absence of human trafficking units within the District Attorney’s office from 2019 to present” as well as “[t]he budgets of such units, and the number of attorneys assigned to them from 2019 to the present.” The response referred petitioner to “publicly available records that are responsive to this request.” It also stated that the units had between three and six attorneys from 2019 and that the budget for such units was not separate from the rest of the office.
February 18, 2022 Request and March 4, 2021 Response (Petition; Exhibits J and L):
Item 1—The Court GRANTS the Petition as to this item, which seeks “Unique identifiers associated with each defendant, case, and arrest.” Petitioners are entitled to receive “statistical or research information” obtained from OCDA’s records, as long as identifying information about the subjects of the records, e.g., names and birthdates, is not disclosed. (Penal Code, §§ 13300 and 13305). The court DENIES the Petition as to this request to the extent it requests disclosure of information protected by Welfare and Institutions Code section 827.
Item 2—The court GRANTS the Petition as to this item which seeks, “Demographic and other information concerning each defendant.” Petitioners are entitled to receive “statistical or research information” obtained from OCDA’s records, as long as identifying information about the subjects of the records, e.g., names and birthdates, is not disclosed. (Penal Code, §§ 13300 and 13305). The court DENIES the Petition as to this request to the extent it requests disclosure of information protected by Welfare and Institutions Code section 827.
Item 3—The court GRANTS the Petition as to this item, which seeks information regarding each arrest, including zip code of arrest, date of arrest, and charge identified by law enforcement. This item does not seek identifying information about the subjects of the records sought. (Penal Code, §§ 13300 and 13305). The court DENIES the Petition as to this request to the extent it requests disclosure of information protected by Welfare and Institutions Code section 827.
Item 4—The court GRANTS the Petition as to this item which seeks identification of ADA assigned to the case. This item does not seek identifying information about the subjects of the records sought. (Penal Code, §§ 13300 and 13305).
Item 5—The court DENIES the Petition as to this item which seeks records regarding decisions to decline to prosecute. By its terms, this item seeks records that are exempt and not subject to disclosure under Government Code section 7927.705, Code of Civil Procedure section 2018.030, and the deliberative process privilege. (Gov. Code, § 7922.000.)
Item 6—The court DENIES the Petition as to this item which seeks identification about diversion offers and decisions, including formal and informal offers and decisions, and whether the offers were accepted and completed. By its terms, this item seeks records that are exempt and not subject to disclosure under Government Code section 7927.705, Code of Civil Procedure section 2018.030, and the deliberative process privilege. (Gov. Code, § 7922.000.)
Item 7—The court GRANTS the Petition as to this item which seeks information regarding the charges filed, including statutes, severity, enhancements, and maximum sentence. This item does not seek identifying information about the subjects of the records sought. (Penal Code, §§ 13300 and 13305). The court DENIES the Petition as to this request to the extent it requests disclosure of information protected by Welfare and Institutions Code section 827.
Item 8—The court DENIES the Petition as to this item, which seeks records regarding “[f]actors considered in deciding charges to file and level of charges.” By its terms, this item seeks records that are exempt and not subject to disclosure under Government Code section 7927.705, Code of Civil Procedure section 2018.030, and the deliberative process privilege. (Gov. Code, § 7922.000.)
Item 9—The court GRANTS the Petition as to this item which seeks bail and custody information except as to material underlying the decisions about the detention orders sought, such as attorney opinions and advice, personal impressions, legal research, theories and conclusions. (Gov. Code, § 7927.705 and Code Civ. Proc., 2018.030.) Under Penal Code section 13305, only “statistical or research information” obtained from OCDA’s records is subject to disclosure as to this request.
Item 10—The court DENIES the Petition as to this item which seeks information about plea offers. This item is sufficiently broad to include disclosure of records protected by Code of Civil Procedure section 2018.030 and the deliberative process privilege. The records sought by this request are exempt under Government Code sections 7922.000 and 7927.705.
Item 11—The court GRANTS the Petition as to this item which seeks information regarding charges of conviction, dismissed charges, and sentences. This item does not seek identifying information about the subjects of the records sought. (Penal Code, §§ 13300 and 13305). The court DENIES the Petition as to this request to the extent it requests disclosure of information protected by Welfare and Institutions Code section 827.
Item 12—The court GRANTS the Petition as to this item which seeks information about defense counsel. This item does not seek identifying information about the subjects of the records sought. (Penal Code, §§ 13300 and 13305). The court DENIES the Petition as to this request to the extent it requests disclosure of information protected by Welfare and Institutions Code section 827.
Item 13—The court GRANTS the Petition as to this item which seeks demographic information about crime victims, including race, ethnicity and gender/sex. This item does not seek identifying information about the subjects of the records sought. (Penal Code, §§ 13300 and 13305). The court DENIES the Petition as to this request to the extent it requests disclosure of information protected by Welfare and Institutions Code section 827.
Item 14—The court DENIES the Petition as to this item, which seeks information about recommendations regarding parole. This item is sufficiently broad to include disclosure of records protected by Code of Civil Procedure section 2018.030 and the deliberative process privilege. The records sought by this request are exempt under Government Code sections 7922.000 and 7927.705.
Item 15—The court DENIES the Petition as to this item which seeks information about recommendations regarding pardons and commutations. This item is sufficiently broad to include disclosure of records protected by Code of Civil Procedure section 2018.030 and the deliberative process privilege. The records sought by this request are exempt under Government Code sections 7922.000 and 7927.705.
July 8, 2022 Request and March 18, 2021 Response (Petition; Exhibits Q and R):
The court GRANTS the Petition as to this item, which seeks “all publicly available information for every criminal case in your case management system filed in adult court” . . . “for all cases filed on or after January 1, 2000.” Petitioners are entitled to receive “statistical or research information” obtained from OCDA’s records, as long as identifying information about the subjects of the records, e.g., names and birthdates, is not disclosed. (Penal Code, §§ 13300 and 13305). By its terms, this item is limited to information about cases filed in adult court, and Welfare and Institutions Code section 827 does not apply.
July 23, 2021 Request and August 19, 2021 Response (Exhibits V and Y):
The 7-23-21 request contained a “renewal” of two earlier requests dated 5-13-19 and 7-29-19. (Petition; Exhibit V.) The OCDA’s 8-19-21 response renumbered the items sought by the “renewal” of the earlier requests as items 1 through 6 as to the 5-13-19 request, and 7 through 12 as to the 7-29-19 request. (Petition; Exhibit X.)
As to this request, the declaration from OCDA’s attorney, filed on 3-27-23 under ROA No. 61, indicates that the OCDA disclosed numerous documents on 8-19-21. (Kim Decl., ¶ 15, and Petition at Exhibit X.) This declaration also shows that the OCDA withheld documents or produced documents with redactions. (Kim Decl., ¶ 7 and Exhibit 1.) The attorney for the OCDA attached a privilege log regarding the documents that the OCDA withheld or produced with redactions. (Kim Decl., ¶ 7 and Exhibit A.) The privilege log is sufficiently specific to show what was redacted and the reason for the redaction. (Kim Decl., ¶ 7 and Exhibit A.)
Item 1 (Renewed Request of 5-13-19)—The court DENIES the Petition as to this item, which seeks “Records of prosecution data” including “Unique identifiers, charges and outcomes for all minors . . . prosecuted directly in adult in Orange County . . . “all minors prosecuted in juvenile court in Orange county” [sic] . . . “all misdemeanor charges for minors and adults in Orange county” [sic], and “. . . all felony charges for minors and adults in Orange County.” Although Petitioners are entitled to receive “statistical or research information” obtained from respondent OCDA’s records, they not entitled to identifying information about the subjects of the records. (Penal Code, § 13305.) Further, this item seeks records that are protected from disclosure under Welfare and Institutions Code section 827. Thus, these records are exempt from disclosure under Government Code section 7927.705.
Item 2 (Renewed Request of May 13, 2019—The court GRANTS the Petition as to this item, which seeks All documents and records related to all diversion programs offered or used by the DA’s office, how many people utilized those programs, demographics of those people, the charges they were facing, outcomes of those cases, requirements for completing diversion, and any charges or costs associated with those diversion programs for calendar years 2017 and 2018” to the extent that this item does not include any identifying information about the subjects of the records or records relating to attorney work product. (Penal Code, §§ 13300 and 13305, and Code Civ. Proc., § 2018.030.0
Item 3 (Renewed Request of May 13, 2019)—The ourt GRANTS the Petition as to this item which seeks “all records relating to how many parole hearings the office attended, how many hearings, your office opposed, and how many parole hearings your office opposed when the next of kin took no position in the calendar years of 2017 and 2018” because the response did not provide the requested information for the years 2017 and 2018. (Petition, Exhibit X.) Rather, the response provided the information for the years 2019, 2020, and 2021.
Item 4 (Renewed Request of May 13, 2019)—The court DENIES the Petition as to this item which seeks “Copies of all office policies, including but not limited to policies regarding the death penalty and when its [sic] sought, charging and plea deal offer policies, pardons and commutations, etc. . . .” because this item seeks records that are exempt and not subject to disclosure Code of Civil Procedure section 2018.030, and the deliberative process privilege. (Gov. Code, §§ 7922.000 and 7927.705.)
Item 5 (Renewed Request of May 13, 2019)—The court DENIES the Petition as to this item which seeks “Copies of all documents that relate to immigration . . . ” including . . . “Records that refer to office efforts to implement its obligations under Penal Code 1016.3(b). . .,” Penal Code section 1473.7, and “Records, memoranda, and emails that relate to the creation and development of an immigration policy for the office.” This item seeks records that are exempt from disclosure under the deliberative process privilege. (Gov. Code, § 7922.000.)
Item 6 (Renewed Request of May 13, 2019)—The court DENIES the Petition as to this item which seeks “All records concerning implementation of SB 1421, including copies of any new policies, training manuals, or procedures regarding SB 1421 . . .” and “. . . revisions of any Brady policies in light of SB 1421 . . . .” This item seeks records that are exempt from disclosure under the deliberative process privilege. (Gov. Code, § 7922.000.)
Item 1 (Renewed Request of July 29, 2019 (renumbered as item 7 in the response of August 19, 2019))—The court DENIES the Petition as to this item which seeks “Any training materials related to jury selection” because the request seeks records exempt under Government Code section 7927.705 and Code of Civil Procedure section 2018.030.
Item 2 (Renewed Request of July 29, 2019 (renumbered as item 8 in the response of August 19, 2019))—The Court DENIES the Petition as to this item which seeks “Any training materials related to the constitutional requirements under Batson v. Kentucky and People v. Wheeler, including training materials related to handling Batson v. Kentucky claims or motions” because the request seeks records exempt under Government Code section 7927.705 and Code of Civil Procedure section 2018.030.
Item 1 in the Request of July 23, 2021 (renumbered as item 9 in the response)—The court GRANTS the Petition as to this item which seeks “Any and all written policies, memoranda, or guidance documents” about diversion eligibility and programming, custody and bail recommendations, charging recommendations or decisions, compliance with Brady v. Maryland, jury selection, sentencing recommendations, prosecution of minors, parole recommendations, pardon and commutation recommendations, reports to the State Bar relating to discipline and prosecutorial misconduct, data collection relating to criminal matters, and referral of cases for federal prosecution except as to records including information protected by Code of Civil Procedure section 2018.030 and the deliberative process privilege.
Item 2 in the Request of July 23, 2021 (renumbered as item 10 in the response)—The court GRANTS the Petition as to this item which seeks “Any and all policies regarding training as well as training materials . . .” which are mandatory or optional for prosecutors and relate to jury selection, implicit bias, and presentation of evidence from social media, except as to records including information protected by Code of Civil Procedure section 2018.030 and the deliberative process privilege.
Item 3 in the Request of July 23, 2021 (renumbered as item 11 in the response)—The court GRANTS the Petition as to this item which seeks records concerning implementation of the Racial Justice Act, communications about the Racial Justice Act, and trainings related to the Racial Justice Act except as to records including information protected by Code of Civil Procedure section 2018.030 and the deliberative process privilege.
Item 4 in the Request of July 23, 2021 (renumbered as item 12 in the response)—The court DENIES the Petition as to this item, which seeks “All investigations into Batson-Wheeler motions” because OCDA provided a substantive response to this item. The response identifies three specific unpublished appellate cases in which motions were filed and then states that no additional responsive documents exist. (Petition, Exhibit X.)
In summary, Petitioners’ (Chicansx Unidxs de Orange County, American Civil Liberties Union of Northern California, and American Civil Liberties Union of Southern California) Motion for Judgment on the Verified Petition for Writ of Mandate and Complaint, filed on 1-26-23 under ROA No. 53, is GRANTED in part and DENIED in part as set forth above.
The court DENIES Respondents’ Request for Judicial Notice (RJN), filed on 3-27-23 under ROA No. 67, as immaterial to the court’s decision. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18 (Silverado.)
Respondents’ Objections to Evidence filed on 3-27-23 under ROA No. 63: The court OVERRULES all of the objections.
Petitioners are to give notice.