Kinney v. Super. Ct.

Filed 4/7/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
ALISHA KINNEY,
F082845
Petitioner,
(Super. Ct. No. BCV-21-100450)
v.
THE SUPERIOR COURT OF KERN COUNTY, OPINION
Respondent;
COUNTY OF KERN,
Real Party in Interest.
ORIGINAL PROCEEDINGS; in mandate. Stephen D. Schuett, Judge.
Bridgette C. Toraason and Brent J. Borchert for Petitioner.
No appearance for Respondent.
Margo A. Raison, County Counsel, and Andrew C. Hamilton, Deputy County
Counsel, for Real Party in Interest.
Jennifer B. Henning for California State Association of Counties as Amicus
Curiae on behalf of Real Party in Interest.
-ooOoo-
In February 2021, the petitioner, Alisha Kinney, sent a request to the real party in
interest, the County of Kern (the “County”), under the California Public Records Act (the
“Act”) (Gov. Code, § 6250 et seq.)1 seeking the names of all persons arrested by the Kern
County Sheriff’s Department for driving under the influence (DUI) from March 1, 2020
to April 1, 2020. The County provided Kinney with some information about the DUI
arrests made in the specified timeframe but did not provide the arrestees’ names. Kinney
then filed a verified petition for writ of mandate in Kern County Superior Court to
compel the County to provide the arrestees’ names. The court sustained the County’s
demurrer to Kinney’s petition without leave to amend.
Kinney now seeks extraordinary writ relief from this court to compel the superior
court to vacate its order sustaining the County’s demurrer to her petition and to enter a
new order directing the County to provide the arrestees’ names. We conclude the
statutory scheme Kinney relies on neither requires nor authorizes the disclosure of the
arrestees’ names. We therefore deny the requested writ relief.
BACKGROUND
On February 15, 2021, Kinney emailed a records request to the County. The
specific wording of Kinney’s email is as follows:
“Pursuant to the California Public Records Act, I request that you
provide me with the names of every individual arrested for DUI by the
Kern County Sheriff’s Department from March 1, 2020 through April 1,
2020.”
Although Kinney’s email did not so specify, the requested information—the
arrestees’ names—is information specified in section 6254, subdivision (f)(1).
1 Unless otherwise indicated, all statutory references are to the Government Code.
Section 6250 provides:
“In enacting this chapter, 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.”
2.
Section 6254 provides a description of public records which are not required to be
disclosed by Chapter 3.5 (relating to Inspection of Public Records) of the Government
Code. Subdivision (f), which we provide in part, describes a particular category of such
exempt public records:
“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.
However, state and local law enforcement agencies shall disclose the names
and addresses of persons involved in, or witnesses other than confidential
informants to, the incident, the description of any property involved, the
date, time, and location of the incident, all diagrams, statements of the
parties involved in the incident, the statements of all witnesses, other than
confidential informants, to the victims of an incident, or an authorized
representative thereof, an insurance carrier against which a claim has been
or might be made, and any person suffering bodily injury or property
damage or loss, as the result of the incident caused by arson, burglary, fire,
explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime
as defined by subdivision (b) of Section 13951, unless the disclosure would
endanger the safety of a witness or other person involved in the
investigation, or unless disclosure would endanger the successful
completion of the investigation or a related investigation. However, this
subdivision does not require the disclosure of that portion of those
investigative files that reflects the analysis or conclusions of the
investigating officer.
“Customer lists provided to a state or local police agency by an
alarm or security company at the request of the agency shall be construed to
be records subject to this subdivision.
“Notwithstanding any other provision of this subdivision, state and
local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular item of
information would endanger the safety of a person involved in an
investigation or would endanger the successful completion of the
investigation or a related investigation:
3.
“(1) The full name and occupation of every individual arrested by the
agency, the individual’s physical description including date of birth, color
of eyes and hair, sex, height and weight, the time and date of arrest, the
time and date of booking, the location of the arrest, the factual
circumstances surrounding the arrest, the amount of bail set, the time and
manner of release or the location where the individual is currently being
held, and all charges the individual is being held upon, including any
outstanding warrants from other jurisdictions and parole or probation holds.
“(2)(A) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or requests
for assistance received by the agency and the time and nature of the
response thereto, including, to the extent the information regarding crimes
alleged or committed or any other incident investigated is recorded, the
time, date, and location of occurrence, the time and date of the report, the
name and age of the victim, the factual circumstances surrounding the
crime or incident, and a general description of any injuries, property, or
weapons involved. The name of a victim of any crime defined by
Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e,
266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3,
288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal
Code may be withheld at the victim’s request, or at the request of the
victim’s parent or guardian if the victim is a minor. When a person is the
victim of more than one crime, information disclosing that the person is a
victim of a crime defined in any of the sections of the Penal Code set forth
in this subdivision may be deleted at the request of the victim, or the
victim’s parent or guardian if the victim is a minor, in making the report of
the crime, or of any crime or incident accompanying the crime, available to
the public in compliance with the requirements of this paragraph.
“(B) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the names and images of a victim of human trafficking, as
defined in Section 236.1 of the Penal Code, and of that victim’s immediate
family, other than a family member who is charged with a criminal offense
arising from the same incident, may be withheld at the victim’s request
until the investigation or any subsequent prosecution is complete. For
purposes of this subdivision, “immediate family” shall have the same
meaning as that provided in paragraph (3) of subdivision (b) of
Section 422.4 of the Penal Code.” (§ 6254, subd. (f)(1) & (2), italics
added.)
The County responded in writing to the request on February 24, 2021. It provided
a copy of a report reflecting the three driving under the influence arrests made by the
4.
Kern County Sheriff’s Department during Kinney’s specified timeframe, but redacted the
names of the three arrestees. The report copy listed for each arrest a case number, date
and time of arrest, the offense, the offense statute, and the case status. The offense,
offense statute, and the case status were the same for each arrest: the offense was
“Driving Under The Influence,” the offense statute was “23152(A) VC-M,” and the case
status was “CLEARED BY ARREST.”2
The County explained in its response to Kinney that the arrestees’ names had been
redacted “as that information is protected and exempt from disclosure pursuant to
California Government Code 6254(k), Cal. Const. Art. I § 1, California Penal Code
§ 13300 and California Evidence Code 1040.”
On March 1, 2021, Kinney filed her verified petition for writ of mandate in Kern
County Superior Court pursuant to section 6258.3 Kinney contends in her petition to this
court that her lower court petition was accompanied by a declaration of hers. However,
no such declaration is in the record, and nothing indicates her lower court petition was
supported by any declaration. Her petition requested the issuance of a peremptory writ of
mandate directing the County to provide the names of the three arrestees in compliance
with the Act, or, alternatively, the issuance of an order to the County to show cause why
the court should not issue such a writ. Her petition alleged she was entitled to the full
names of the three arrestees under section 6254, subdivision (f)(1).
2We take judicial notice of the fact that Vehicle Code section 23152 is the driving
under the influence statute. (Evid. Code, §§ 459, 451.)
3 Section 6258 provides:
“Any person may institute proceedings for injunctive or declarative relief or writ
of mandate in any court of competent jurisdiction to enforce his or her right to
inspect or to receive a copy of any public record or class of public records under
this chapter. The times for responsive pleadings and for hearings in these
proceedings shall be set by the judge of the court with the object of securing a
decision as to these matters at the earliest possible time.”
5.
The County’s demurrer
On April 8, 2021, the County filed a demurrer to Kinney’s petition on the ground
that it failed to “state facts sufficient to constitute a cause of action.” The demurrer
argued, relying on the holding in County of Los Angeles v. Superior Court (Kusar) (1993)
18 Cal.App.4th 588, that “the records to be disclosed under section 6254,
subdivision (f)(1) and (2), are limited to current information and records of the matters
described in the statute and which pertain to contemporaneous police activity.” (Id. at
p. 601.) The County also noted that the Kusar court, after reviewing section 6254,
subdivision (f)’s, legislative history, concluded that the Legislature “demonstrated a
legislative intent only to continue the common law tradition of contemporaneous
disclosure of individualized arrest information in order to prevent secret arrests and to
mandate the continued disclosure of customary and basic law enforcement information to
the press.” (Id. at pp. 596—599.) Implicit in the County’s argument was that Kinney’s
request for arrestee information that was 11 to 12 months old was not a request for
“contemporaneous” information and thus not subject to disclosure under section 6254,
subdivision (f)(1).4
The demurrer also argued that section 6254, subdivision (k), exempted the
arrestees’ names from disclosure. That subdivision exempts from disclosure “[r]ecords,
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.” The
County contended that Kinney was requesting information—namely, “criminal history
records of private citizens—[that] is prohibited from disclosure by both the California
Constitution and the Penal Code[.]” Specifically, the County discussed Article I, section
3, subdivision (b)(3) of the California Constitution, enshrining the right to privacy among
4 The County’s argument appears to be that none of the arrestees’ information was
subject to disclosure. Thus, it is unclear why the County agreed to provide most of the
information Kinney sought, excluding only the arrestees’ names.
6.
other rights, and Penal Code sections 13300—13302, prohibiting the unauthorized
disclosure of criminal history information.
Additionally, the County argued that disclosure was not required under the
balancing test of section 6255, subdivision (a). This subdivision provides that “[an]
agency shall justify withholding any record by demonstrating that the record in question
is exempt under express provisions of this chapter 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.” This “catchall provision” “ ‘contemplates a
case-by-case balancing process, with the burden of proof on the proponent of
nondisclosure to demonstrate a clear overbalance on the side of confidentiality.’ ”
(American Civil Liberties Union Foundation v. Superior Court (2017) 3 Cal.5th 1032,
1043.) “Whether such an overbalance exists may depend on a wide variety of
considerations, including privacy[.]” (Ibid.)
Kinney filed an opposition to the demurrer in which she emphasized section 6254,
subdivision (f)’s, language that law enforcement agencies “shall make public,” among
other things, “[t]he full name” of “every individual arrested by the agency.” (§ 6254,
subd. (f)(1).) Kinney also argued the County’s reliance on Kusar, supra, 18 Cal.App.4th
588 is misplaced because section 6254, subdivision (f), was amended after the Kusar
decision in a manner that rendered the holding in that case obsolete. Specifically, Kinney
argued the amendment neutralized Kusar’s holding that the disclosure mandates under
section 6254, subdivision (f)(1), are limited to information pertaining to
contemporaneous police activity.
The trial court sustains the demurrer without leave to amend
The trial court sustained the County’s demurrer without leave to amend after a
hearing on May 6, 2021. There was no court reporter at the hearing. The superior court
clerk’s minute order of the hearing states that a tentative ruling was “announced” in open
court, that the matter was argued by counsel and submitted, and that the demurrer was
7.
sustained without leave to amend. The minute order did not state the ground for
sustaining the demurrer nor did it mention any of the court’s reasoning. Any written
tentative ruling, if there was one, was not incorporated into the minute order and is not
part of the record on appeal. The minute order stated that the Kern County Counsel was
to prepare an “order after hearing.”
The Kern County Counsel prepared a terse order after hearing that the court
signed. The order after hearing stated little more than that the demurrer is sustained
without leave to amend. The order did not state any grounds or reasons for sustaining the
demurrer.
Kinney timely filed her verified petition for writ of mandate in this court
challenging the court’s order sustaining the demurrer to her lower court petition without
leave to amend.
DISCUSSION
Kinney advances substantially the same arguments she did in the lower court
proceedings. While we do not know the specific reasons the trial court sustained the
demurrer, we conclude the trial court could have correctly sustained the demurrer without
leave to amend based on the holding in Kusar, supra, 18 Cal.App.4th 588. Kusar’s
holding that section 6254, subdivision (f)(1)’s, disclosure mandates are limited only to
information pertaining to “contemporaneous” police activity remains valid authority.
Furthermore, although the Legislature has not defined what “contemporaneous” means in
this context, we conclude the information sought here, which was 11 to 12 months old
when Kinney filed her request to the County, should not be considered
“contemporaneous” information based on the reasons supporting the holding in Kusar.
We deny Kinney’s petition solely on this ground and do not need to explore any other
possible grounds.
8.
I. Appealability and standard of review
“Pursuant to section 6259, subdivision (c), an order of the trial court under the
Act, which either directs disclosure of records by a public official or supports the
official’s refusal to disclose records, is immediately reviewable by petition to the
appellate court for issuance of an extraordinary writ. [Citation.] The standard for review
of the order is ‘an independent review of the trial court’s ruling[.]’ ” (City of San Jose v.
Superior Court (1999) 74 Cal.App.4th 1008, 1016.) “ ‘A judgment or order of a lower
court is presumed to be correct on appeal, and all intendments and presumptions are
indulged in favor of its correctness.’ [Citation.] … We affirm a judgment if correct on
any ground.” (McPherson v. EF Intercultural Foundation, Inc. (2020) 47 Cal.App.5th
243, 257—258.)
II. The arrestees’ names are not subject to disclosure
As previously stated, section 6254, subdivision (f)(1), requires state and local law
enforcement agencies to make public the following information pertaining to arrests,
unless disclosure would endanger the safety of a person involved in an investigation or
the successful completion of an investigation:5
“The full name and occupation of every individual arrested by the
agency, the individual’s physical description including date of birth, color
of eyes and hair, sex, height and weight, the time and date of the arrest, the
factual circumstances surrounding the arrest, the amount of bail set, the
time and manner of release or the location where the individual is being
held upon, including any outstanding warrants from other jurisdictions and
parole or probation holds.”
Section 6254, subdivision (f)(1)’s, mandate has been interpreted to be “limited to
current information and records of the matters described in the statute and which pertain
to contemporaneous police activity.” (Kusar, supra, 18 Cal.App.4th at p. 601.) Since the
5 The County has never claimed that disclosing the arrestees’ name here would
endanger the safety of a person involved in an investigation or the successful completion
of an investigation.
9.
Kusar decision in 1993, section 6254 has been amended 47 times in different respects,
but subdivision (f) has not been amended to change Kusar’s interpretation of that
subdivision. “ ‘When a statute has been construed by the courts, and the Legislature
thereafter reenacts that statute without changing the interpretation put on that statute by
the courts, the Legislature is presumed to have been aware of, and acquiesced in, the
courts’ construction of that statute.’ ” (People v. Zambia (2011) 51 Cal.4th 965, 975—
976.) Here, we presume the Legislature has acquiesced in the Kusar court’s
interpretation of section 6254, subdivision (f).
However, as another Court of Appeal has observed, the Legislature has not
defined “contemporaneous” as that term is used in the Kusar decision. (Fredericks v.
Superior Court (2015) 233 Cal.App.4th 209, 216 (Fredericks), disapproved of on other
grounds by National Lawyers Guild, San Francisco Bay Area Chapter v. City of
Hayward (2020) 9 Cal.5th 488, 508, fn. 9.) The amicus curiae recognizes this, but states
that the precise definition of “contemporaneous” for these purposes is not at issue in this
case and asserts that the records of arrest in this case—which were very close to a year
old—“are not contemporaneous by any measure.”6
We agree. We do not need to discern the precise definition of “contemporaneous”
as that term applies to section 6254, subdivision (f)(1)’s, disclosure mandate. However,
the Kusar court’s holding and reasoning supports the conclusion that the arrest
information at issue here—i.e., the three arrestees’ names—which was 11 to 12 months
old when Kinney made her request to the County, should not be considered
“contemporaneous.”
In Kusar, “one McMurray had brought a civil action against two deputy sheriffs
for assault and battery and civil rights violations. In the civil action, the trial court denied
6
The amicus curiae brief was filed by the California State Association of Counties
on December 7, 2021.
10.
McMurray’s […] motion for discovery (presumably made under Evidence
Code sections 1043 et seq.) involving the deputies’ prior arrests of persons for crimes
similar to those with which McMurray was charged.” (City of Hemet v. Superior Court
(1995) 37 Cal.App.4th 1411, 1424, fn. omitted.) Specifically, the discovery motion
sought “information regarding every person arrested (for certain particular offenses) by
Bailey and Morales over a 10–year period. [Citation.] The County [of Los Angeles]
refused to produce the information.” (County of Los Angeles v. Superior Court (Axelrad)
(2000) 82 Cal.App.4th 819, 827.) A legal secretary (J. Ara Kusar) in McMurray’s
attorney’s office then filed, at the attorney’s direction, a California Public Records Act
request for the information, which was refused. (Ibid.) The litigation to enforce Kusar’s
purported rights under the Act ensued. (Ibid.) The superior court adopted Kusar’s broad
interpretation of section 6254, subdivision (f), and ordered the county to produce the
information. (Kusar, supra, 18 Cal.App.4th at p. 593.) The county sought writ relief in
the Court of Appeal to compel the trial court to vacate its order. (Ibid.)
In the Court of Appeal, the county argued “that section 6254, subdivision (f)(1)
and (2), authorize[d] disclosure only of contemporaneous information relating to persons
currently within the criminal justice system and cannot be used to discover criminal
history information going back 10 years.” (Kusar, supra, 18 Cal.App.4th at p. 595.)
Kusar, on the other hand, argued the statute’s language “plainly direct[ed] disclosure of
the requested information and the County [of Los Angeles] may only avoid the statutory
mandate by showing” that the disclosure would either endanger the safety of a person
involved in an investigation or would endanger a successful completion of the
investigation, “which it ha[d] failed to do.” (Ibid.)
At the time of the Kusar decision, section 6254, subdivision (f)(1) and (2),
provided that the “current address[es]” of arrestees and victims were generally subject to
disclosure. Subdivision (f)(1) and (2) read in relevant part at that time:
11.
“Other provisions of this subdivision notwithstanding, state and local
law enforcement agencies shall make public the following information,
except to the extent that disclosure of a particular item of information
would endanger the safety of a person involved in an investigation or would
endanger the successful completion of the investigation or a related
investigation:
“(1) The full name, current address, and occupation of every
individual arrested by the agency, the individual’s physical description
including date of birth, color of eyes and hair, sex, height and weight, the
time and date of arrest, the time and date of booking, the location of the
arrest, the factual circumstances surrounding the arrest, the amount of bail
set, the time and manner of release or the location where the individual is
currently being held, and all charges the individual is being held upon,
including any outstanding warrants from other jurisdictions and parole or
probation holds.
“(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code [relating to limitations on disclosure to a criminal defendant of
the address and telephone number of victims or witnesses], the time,
substance, and location of all complaints or requests for assistance received
by the agency and the time and nature of the response thereto, including, to
the extent the information regarding crimes alleged or committed or any
other incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name, age, and current
address of the victim, except that the address of the victim of any crime
defined by Section 261, 264, 264.1, 273a, 273d, 273.5, 286, 288, 288a, 289,
422.6, 422.7, or 422.75 of the Penal Code shall not be disclosed, the factual
circumstances surrounding the crime or incident, and a general description
of any injuries, property, or weapons involved.” (Kusar, supra,
18 Cal.App.4th at p. 591, fn. 3, italics added, original italics omitted.)
The Kusar court explained how section 6254, subdivision (f)’s, language was
ambiguous:
“The language utilized in section 6254, subdivision (f), is consistent
with the more narrow construction placed on it by the County [of Los
Angeles]. For example, ‘records’ of complaints and investigations and
‘files compiled’ by state and local agencies for correctional, law
enforcement and licensing purposes are exempt from the general
requirements of the [Act]. However, the second paragraph of
subdivision (f) requires that the public have access to certain limited kinds
of ‘information’ extracted from such records and files. [Citation.] This
12.
information is described in terms which strongly suggest that
contemporaneous information is intended. The disclosed information must
include (1) the ‘current address’ of an arrestee, (2) the time and date of
booking, (3) the location where the arrestee is then currently being held or,
if not in custody, the time and manner of release, (4) the amount of bail set,
(5) all charges on which the arrestee is being held and (6) any outstanding
warrants or parole violations. This information is patently the type of
information which would be relevant to current and contemporaneous
police activity. Much of it would make no sense in the context of a 10-year
history of arrest activity. Indeed, if construed in any other way this new
exception would come close to consuming the exemption contained in the
first paragraph of subdivision (f).
“Nevertheless, it would not be entirely unreasonable to construe the
statutory language in the broad general manner proposed by Kusar. The
statutory language alone does not conclusively eliminate an interpretation
which would authorize the release at a later time of information which was
‘current’ when compiled. We therefore conclude the language is
ambiguous and it is necessary to look at additional factors to determine the
purpose and intent of the statute.” (Kusar, supra, 18 Cal.App.4th at
pp. 595—596.)
The Kusar court examined section 6254, subdivision (f)’s, legislative history and
concluded the history supported the county’s construction of section 6254,
subdivision (f), as “the more appropriate one.” (Kusar, supra, 18 Cal.App.4th at p. 598.)
The court explained that the Legislature intended “only to continue the common law
tradition of contemporaneous disclosure of individualized arrest information in order to
prevent secret arrests and to mandate the continued disclosure of customary and basic law
enforcement information to the press.” (Ibid.) This informed the Kusar court’s ultimate
holding: “Based on the legislative purpose and intent which we glean from the legislative
history, we conclude that the records to be disclosed under section 6254,
subdivision (f)(1) and (2), are limited to current information and records of the matters
described in the statute and which pertain to contemporaneous police activity.” (Kusar,
supra, at p. 601.)
We are guided by the Kusar court’s conclusion that the purpose of the disclosure
exceptions in section 6254, subdivision (f), was only to prevent secret arrests and provide
13.
basic law enforcement information to the press. This observation leads us to conclude
that the arrest information sought here—which was 11 to 12 months old when Kinney
requested it from the County—was not “contemporaneous” for section 6254,
subdivision (f)(1), purposes when Kinney made her request to the County. After 11 to
12 months, we do not see how releasing the arrestees’ names would serve the purpose of
preventing clandestine police activity. We reach this conclusion aware of our
constitutional obligation to “ ‘broadly construe[ ]’ the [Act] to the extent ‘it furthers the
people’s right of access’ and to ‘narrowly construe[ ]’ the [Act] to the extent ‘it limits the
right of access.’ ” (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 166; Cal.
Const., art. I, § 3, subd. (b)(2).)
Kinney argues Kusar is no longer valid authority because section 6254,
subdivision (f), was amended shortly after that case was decided. “In 1995, the language
of section 6254, subdivision (f)(1) and (2) was amended to remove the terms ‘current
address’ for both arrestees and victims. (Stats. 1995, ch. 778, §§ 1—4, pp. 6056—
6081.)” (Fredericks, supra, 233 Cal.App.4th at p. 232.) Since that amendment, current
addresses of arrestees and victims are subject to disclosure only under certain conditions
as specified in section 6254, subdivision (f)(3). (Stats. 1995, ch. 778, §§ 1—4,
pp. 6056—6081.) Section 6254, subdivision (f)(3) currently provides that state and local
law enforcement shall make public:
“[T]he current address of every individual arrested by the agency
and the current address of the victim of a crime, if the requester declares
under penalty of perjury that the request is made for a scholarly,
journalistic, political, or governmental purpose, or that the request is made
for investigation purposes by a licensed private investigator … [except] that
the address of the victim of [certain crimes] shall remain confidential.
Address information obtained pursuant to this paragraph shall not be used
directly or indirectly, or furnished to another, to sell a product or service to
any individual or group of individuals, and the requester shall execute a
declaration to that effect under penalty of perjury.”
The Fredericks court summarized the history and purpose of the amendment:
14.
“In the legislative history of the 1995 changes to section 6254,
subdivision (f)(2), the Governor’s chaptered bill file (Sen. Bill No. 1059
(1995-1996 Reg. Sess.) ch. 778) shows that the sponsor carried the
legislation on behalf of the California Peace Officers Association to address
a problem being experienced by law enforcement under the CPRA. This
was the increasing number of boilerplate requests from marketing
organizations seeking to profit from the disclosed names and addresses of
crime victims and arrestees. Law enforcement agencies were experiencing
a tremendous strain from the processing of those requests, creating pressure
upon their ‘already scarcely allocated time and resources.’ (Sen. Steve
Peace, letter to Governor Pete Wilson (1995-1996 Reg. Sess.) Sept. 7,
1995, Governor’s chaptered bill files, ch. 778.) The bill removed the
requirement to disclose current address information of arrestees and
victims, except as provided in existing law to parties such as journalists,
scholars, licensed private investigators and others with specific purposes.
The Governor’s Office of Planning and Research supported the signing of
the bill to delete the requirement that the current address of every individual
arrested be disclosed, and to delete the requirement that the current
addresses of victims of certain crimes should be disclosed. Its
recommendation stated that law enforcement finds itself under ‘a massive
time drain’ when ‘acting as clerical staff for these marketing firms.’ The
recommendation concluded, ‘In these times of fiscal constraints, law
enforcement resources should be focused on higher priority services to the
public. However, this bill would still preserve legitimate access to this
information.’ (Governor’s Office of Planning and Research, Enrolled Bill
Rep. on Sen. Bill No. 1059 (1995-1996 Reg. Sess.) Sept. 8, 1995, p. 4.)”
(Fredericks, supra, 233 Cal.App.4th at pp. 232—233.)
Kinney argues that the 1995 amendment to section 6254, subdivision (f)(1) and
(2), removing the terms “current address” for both arrestees and victims renders the
Kusar holding obsolete. Kinney quotes from Fredericks, supra, 233 Cal.App.4th 209:
“The main terms expressly relied upon by the court in Kusar, supra, 18 Cal.App.4th
588[…] to support its conclusions regarding an imposed time limitation upon disclosure
obligations [i.e., ‘current address’] are no longer in the statute.” (Id. at p. 232.) This
quote from Fredericks must be read in context to understand that Fredericks did not
overrule Kusar’s holding that the disclosure of information under section 6254,
subdivision (f)(1), is limited to information relating to contemporaneous police activity.
15.
In Fredericks, the petitioner filed a petition for writ of mandate in the trial court to
challenge a police department’s incomplete compliance with his request for “all
‘complaints and/or requests for assistance’ made to the Department during a six-month
period (180 days), pertaining to” specified crimes. (Fredericks, supra, 233 Cal.App.4th
at p. 216.) The petitioner made his request under section 6254, subdivision (f)(2). The
police department responded that they would provide some information, but only about
incidents dating back 60 days before the date of petitioner’s request. (Ibid.) The trial
court denied the petition, relying on Kusar, supra, 18 Cal.App.4th 588 “for the concept
that only ‘current’ information was required to be disclosed, pertaining to
‘contemporaneous’ police activity.” (Fredericks, at p. 221.)
The Court of Appeal in Fredericks reversed, concluding the disclosure mandates
of section 6254, subdivision (f)(2), were not limited to only contemporaneous law
enforcement information. (Fredericks, supra, 233 Cal.App.4th at p. 233.) The
Fredericks court explained: “To the extent that the holding in Kusar, supra,
18 Cal.App.4th 588, … (that only contemporaneous law enforcement information is
disclosable), states that it also applies to section 6254, subdivision (f)(2), its
persuasiveness is weakened, because the arrest information sought in Kusar only
involved subdivision (f)(1). Here we are discussing disclosure of information from
‘complaints or requests for assistance,’ under section 6254, subdivision (f)(2). Kusar
should not be read as establishing a time limitation for such disclosures under
section 6254, subdivision (f)(2), since the information about citizen complaints and
requests for assistance referred to in that statutory subdivision is not always the same as
information about arrestees, and it may raise different policy concerns.” (Fredericks, at
p. 233.)
Fredericks eliminated the “contemporaneous” limitation only as to the disclosure
mandates of section 6254, subdivision (f)(2), not to the mandates of subdivision (f)(1).
Moreover, even though the term “current address” has been removed from
16.
subdivision (f)(1), there continues to be language in that subsection indicating there must
be a temporal connection between the arrest and the request for information. (§ 6254,
subd. (f)(1) [“the location where the individual is currently being held, and all charges the
individual is being held upon”] (emphasis added).) As opposed to subdivision (f)(2),
which no longer contains any language evidencing a focus on current or
contemporaneous information, subdivision (f)(1) obviously still retains such language.
Additionally, we observe that the term “current address” has not been entirely removed
from section 6254, subdivision (f). Subdivision (f)(3) provides that an arrestees’ “current
address” is still subject to disclosure, but only under certain conditions. (§ 6254,
subd. (f)(3).) Thus, it could be argued that the term “current address” still serves as
language indicating that there must be a temporal connection between the arrest and the
information request.
Our conclusion that the arrest information sought in this case is not subject to
disclosure should be limited as much as possible to the facts of this case. Requests made
under the Act for arrest information will often pit two very important rights against each
other—the public’s right to know and the individual’s right to privacy. The Legislature
may wish to consider amending section 6254, subdivision (f), or otherwise provide clear
guidance on when and how law enforcement agencies must make “contemporaneous”
information available to the public.
17.
DISPOSITION
The order to show cause is discharged and the petition for writ of mandate is
denied. The parties shall bear their own costs on appeal.
SNAUFFER, J.
WE CONCUR:
POOCHIGIAN, ACTING P. J.
DETJEN, J.
18.