In significant victory for third party privacy rights,
Becerra v. Superior Court (2020) 44 Cal.App.5th 897 held that all CPRA
exemptions (including exemptions for statutorily privileged records) other than
the law enforcement investigation exemption (section 6254(k)) remain applicable
to requests for records subject to SB 1421.
Of particular concern for agencies receiving requests for decades of
force records, the appellate court held that SB 1421 records requests are
subject to the public interest exemption from disclosure where the agency can
show the the cost and burden of segregating the exempt and nonexempt
information outweighed the public interest in disclosure.
Although the court found the Department of Justice
failed to establish "a clear overbalance on the side of
confidentiality," the applicability of the public interest exemption
provides an important counterbalance to open-ended requests for use of force
investigations that go back decades and require thousands of hours to locate,
review and redact confidential information.
Attorney General Xavier Becerra and the California
Department of Justice (Department) filed a petition for a writ of mandate
seeking to overturn the trial court’s order that the Department did not meet
their disclosure obligations under the California Public Records Act section
6255 section 832.7 (SB 1421). SB 1421 amended the CPRA to allow the public to
know about incidents involving shootings by an officer, the use of force by an
officer that resulted in death or great bodily injury, and sustained findings
of sexual assault or dishonesty. First Amendment Coalition and KQED requested
records subject to disclosure under SB 1421. The Department partially denied
the requests, arguing that they were not the agency “maintaining the
documents,” and that the request was overly burdensome under the public
interest or "catch-all" exemption (section 6255).
The phrase "[n]otwithstanding subdivision (a),
subdivision (f) of Section 6254 of the Government Code, or any other law"
in 832.7(b)(1) created significant confusion over whether CPRA exemptions other
than those set forth in section 832.7(b)(5)-(7) applied to requests under SB
1421. Thankfully, the court found that all of the exemptions in the CPRA apply
despite the SB 1421 amendment, since the language of SB 1421 can be harmonized
with that of the CPRA. 832.7(b)(1)
states the records are "nonconfidential notwithstanding the CPRA
investigatory files exemption," then concludes they “shall be made
available ... pursuant to the CPRA." By including these two CPRA
references in one sentence, the court held the Legislature intended to
eliminate confidentiality under the investigatory files exemption, but also
that the CPRA is otherwise essential to section 832.7’s operation.
The appellate court concluded: “'Notwithstanding ...
any other law'” cannot reasonably be read to do away with the entire CRPA.
Nothing indicates CPRA as a whole was displaced by 832.7.” The court’s opinion highlights the ability to
redact as a demonstrated concern by the legislature for privacy interests.
Through exceptions to the CPRA the legislature has made clear the importance of
balancing the public’s interest in information and an officer’s interest in
confidentiality.
Records Created by Other Departments Must
Be Disclosed
The court held that SB 1421 requires the disclosure of
records in the Department’s possession even if such records concern officers
who are not employed by the Department, or if such records were not created by
the Department. Looking at statutory language, the court determined that under
both SB 1421 and the CPRA, “public record” includes any writing prepared,
owned, used, or retained by any agency. Had the legislature intended to limit
disclosure amendments to records created by an agency, it could have. The
legislative intent was to afford the public the right to know about serious
police misconduct, regardless of which agency created the records.
The Public Interest Exemption
While recognizing the legislative intent for the
public to know about serious police matters, the court evaluated the
applicability of the CPRA catch-all or public interest exemption. Under the catch-all exemption, agencies can
refuse to provide a public record where it would be overly burdensome to sort
nonexempt from exempt information in records where they are inextricably
entwined. For example, many departments do not categorize occurrences of great
bodily injury separate from confidential information, potentially making it
overly burdensome to disclose incidents spanning several years.
This exemption is a case-by-case balancing process
that requires the proponent of nondisclosure to show a clear overbalance requiring
nondisclosure/confidentiality. As a matter of statutory construction, this
catchall exemption is applicable to requests for SB 1421 related records. The
court's construction is based on the legislature’s express references to the
CPRA. The court explained the CPRA is essential to SB 1421’s operation, and had
the legislature intended for SB 1421 to override the CPRA catch-all exemption
they could have explicitly said so.
The trial court assumed the CPRA catch-all was
available but determined the Department’s burden did not justify nondisclosure.
The appellate court agreed the Department failed to establish a clear
overbalance on the side of confidentiality. The appellate court held that the
evidence provided by the Department was insufficient in detail to demonstrate
the type of overwhelming burden the catch-all exemption required.
The court held that a mere declaration estimating that
compliance would require review of over 135,000 records and 4,460 attorney
hours was not sufficient evidence to support the exemption. The court explained that since
officer-related records were exempt from disclosure before the passage of SB
1421, "the nature and scope of responsive records in the Department’s
possession are relatively unknown to litigants and the courts, and the burden
of making such records available for inspection must, at this juncture, be
established through expert testimony, or at the very least, with a more thorough
showing that substantiates the Department’s burden."
