Becerra v. City of S.F.

• Decision Date: 29 January 2020
• Docket Number: A157998
• Citation: 257 Cal.Rptr.3d 897,44 Cal.App.5th 897
• Court: California Court of Appeals Court of Appeals
• Parties: Xavier BECERRA, as Attorney General, etc., et al. Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; First Amendment Coalition et al., Real Parties in Interest.

44 Cal.App.5th 897

257 Cal.Rptr.3d 897

Xavier BECERRA, as Attorney General, etc., et al. Petitioners,

v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent;First Amendment Coalition et al., Real Parties in Interest.

A157998

Court of Appeal, First District, Division 3, California.

Filed January 29, 2020

Xavier Becerra, Attorney General, Thomas S. Patterson, Senior Assistant Attorney General, Stepan A. Haytayan, Supervising Deputy Attorney General, Amie L. Medley, Deputy Attorney General, Jennifer E. Rosenberg, Deputy Attorney General as Defendant and Appellant.

Michael T. Risher, San Francisco; David E. Snyder, Glen A. Smith for First Amendment Coalition for Real Parties in Interest.

Davis Wright Tremaine, Thomas R. Burke, San Francisco, Brendan Charney, Los Angeles, for KQED, Inc. for Real Parties in Interest.

Reporters Committee for Freedom of the Press, Katie Townsend, Bruce D. Brown, Adam A. Marshall, Daniel J. Jeon; The Associated Press, Karen Kaiser ; California News Publishers Association, Jim Ewert ; Californians Aware, Terry Francke; The E.W. Scripps Company, David M. Giles; First Look Media Works, David Bralow ; Sheppard Mullin Richter & Hampton, James Chadwick ; Fox Television Stations, David M. Keneipp ; Gannett Co., Barbara W. Wall ; Hearst Corporation, Jonathan Donnellan, Ravi V. Sitwala, Diego Ibarguen ; Los Angeles Times Communications & The San Diego Union-Tribune, Jeff Glasser ; The McClatchy Company, Juan Cornejo ; Covington & Burling, Kurt Wimmer ; MNG Enterprises, Marshall W. Anstandig ; MPA – The Association of Magazine Media, James Cregan; Ballard Spahr, Charles D. Tobin ; The National Press Photographers Association, Mickey H. Osterreicher ; ProPublica, Richard J. Tofel ; Wiley Rein, Kathleen A. Kirby ; Reveal from the Center for Investigative Reporting, Victoria Baranetsky; Baker & Hostetler, Bruce W. Sanford, Mark I. Bailen ; VICE Media, Lucinda Treat for amicus curiae on behalf of real parties in interest.

Fujisaki, J.

The California Public Records Act (CPRA) ( Gov. Code, § 6250 et seq. ) enshrines the value this state has long placed on government transparency and public access to information concerning the conduct of the people’s business. More recently, in acknowledgment of the extraordinary authority vested in peace officers and the serious harms occasioned by misuse of that authority, the Legislature amended Penal Code section 832.7¹ to recognize the right of the public to know about incidents involving shootings by an officer or the use of force by an officer that results in death or great bodily injury, as well as sustained findings of sexual assault or dishonesty by an officer. (Stats. 2018, ch. 988, §§ 1, 2 (Sen. Bill No. 1421), eff. Jan. 1, 2019.) As amended, section 832.7 specifies that records pertaining to such incidents and findings are not confidential and must be made available for public inspection pursuant to the CPRA.

In this case, California Attorney General Xavier Becerra and the California Department of Justice (collectively, the Department) have filed a petition for a writ of mandate seeking to overturn the trial court’s order in favor of First Amendment Coalition and KQED, Inc. (KQED) over two aspects of the Department’s disclosure obligations under section 832.7. We conclude, as a matter of statutory interpretation, that section 832.7 generally requires disclosure of all responsive records in the possession of the Department, regardless whether the records pertain to officers employed by the Department or by another public agency and regardless whether the Department or another public agency created the records. Although we also determine, as a matter of statutory interpretation, that the so-called "catchall exemption" of the CPRA, codified at Government Code section 6255, may apply to records that are subject to disclosure under section 832.7, our independent review leads us to conclude the Department did not adequately demonstrate that the public interest served by nondisclosure of the records at issue clearly outweighs the public interest in their disclosure. The petition for writ of mandate is denied.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Xavier Becerra is the Attorney General of the State of California and the chief law officer of the State. Petitioner California Department of Justice is a state agency that employs sworn peace officers and possesses certain records relating to the officers it employs and to officers who are employed by other state and local agencies.

Real party in interest First Amendment Coalition is a non-profit corporation dedicated to advancing free speech rights, ensuring open and accountable government, and promoting public participation in civil affairs. Real party in interest KQED is a community-supported media organization providing coverage of news and culture to Northern California via radio, television, and digital media.

In January 2019, pursuant to the CPRA, First Amendment Coalition requested from the Department all records within its possession subject to disclosure under newly amended section 832.7. Specifically, it asked for "records relating to a report, investigation or finding ... of any of the following: (1) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer; [¶] (2) An incident in which the use of force by a peace officer or custodial officer against a person resulting in death or in great bodily injury; and/or [¶] (3) An incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public." It sought records for incidents that occurred in 2016, 2017, and 2018.

In February 2019, pursuant to the CPRA and section 832.7, KQED requested from the Department "[r]ecords from Jan. 1, 2014 to Dec. 31, 2018 of sustained findings that a peace officer, including those employed by the Ca. Dept. of Justice, committed sexual assault or dishonesty-related misconduct." KQED also sought "[r]ecords from Jan. 1, 2014 to present relating to the report, investigation, or findings of incidents in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury."

The Department partially denied the requests of First Amendment Coalition and KQED (collectively, real parties), agreeing to produce "only those non-exempt records, if any, relating to peace officers employed by the Department of Justice" subject to applicable redactions. The Department explained its partial denial as follows: "To the extent that the Attorney General has obtained records from other state and local law enforcement agencies, the Attorney General is not the agency that ‘maintains’ those documents. A requester may properly seek disclosure from the employing agency, which not only maintains the records, but will be best situated to assess any applicable exceptions to the disclosure requirement and any statutorily required redactions concerning sensitive and private information. Further, to the extent that the Attorney General has obtained such records in relation to investigations or proceedings that the Attorney General is conducting, the disclosure provisions in section 832.7 do not apply to the Attorney General, under section 832.7, subdivision (a)."²

In March 2019, real parties jointly petitioned for a writ of mandate to compel the Department’s compliance with their CPRA requests. Real parties asked the trial court to command the Department to "immediately search for and promptly disclose all non-exempt records in [its] possession" sought by their CPRA requests. This included "records that were created by or involve another state or local agency" and "records that concern the Attorney General’s own investigations."

In its answer to the petition, the Department admitted that it possessed "certain records sought by [real parties], likely totaling many thousands of such records if not more" and that it "created some but not all of those records." The Department reiterated that neither section 832.7 nor the CPRA required or authorized the disclosure of records it obtained from other state or local law enforcement agencies and further asserted that such records can be requested directly from those agencies.

In July 2019, the trial court granted real parties’ writ petition. The court ordered the Department to produce, by January 4, 2020, "all requested records except those records or parts thereof that this court determines may be lawfully withheld or redacted."

The Department now petitions for extraordinary writ relief to compel the trial court to vacate the portion of its order requiring disclosure of records regarding other agencies’ officers. We granted the Department’s request for an immediate, temporary stay of trial court proceedings, pending further order of this court. We also issued an order to show cause why the relief requested by the Department should not be granted. Real parties requested that their previously filed informal opposition to the petition be deemed a written return to the order to show cause, and the Department filed a traverse/reply. We received briefing from amicus curiae Reporters Committee for Freedom of the Press, joined by six other media and transparency organizations, and the Department’s response thereto. We also requested and received supplemental briefing on one of the Department’s grounds for nondisclosure. The parties appeared for oral argument.

DISCUSSION

A. Standard of Review

A trial court order directing disclosure of public records held by a public agency "shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ." ( Gov. Code, § 6259, subd. (c).) This court "conduct[s] an independent review of the trial court’s ruling; factual findings made by the trial court will be upheld if based on substantial evidence." ( Times...