California Public Records Act:
Exemption for Law Enforcement Information
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Q: What kinds of record does the investigative, security and
intelligence information exemption apply to?
Q: Why is the law enforcement exemption so complex?
Q: What agencies are entitled to assert the law enforcement
exemption?
Q: What types of record are subject to the law enforcement
exemption?
Q: If a pre-existing record that would have been public on its
own merits is "compiled" with others for law enforcement purposes, does the mere
fact of its investigative use render it exempt from disclosure?
Q: Is there a point after which the law enforcement exemption
no longer applies?
Q: What if any law enforcement information must be disclosed?
Q: Is there any limit on how long the public portion of law
enforcement information remains accessible?
Q: What kinds of record does the investigative, security and
intelligence information exemption apply to?
A: The CPRA states:
Section 6254. "Except as provided in Section 6254.7, nothing in this chapter shall
be construed to require disclosure of records that are ...:
(f) 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, 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, except that 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 (c) of Section 13960, 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,
nothing in this division shall require the disclosure of that portion of those
investigative files which reflect the analysis or conclusions of the investigating
officer.
"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, 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. The name of a 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 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 by Section 261, 264, 264.1,
273a, 273d, 286, 288, 288a, 289, 422.6, 422.7, or 422.75 of the Penal Code 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."
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Q: Why is the law enforcement exemption so complex?
A: The fact that this subdivision's structure approaches the labyrinthine density of
portions of the Internal Revenue Code is no accident. The complexity reflects the tug of
war lobbying trail over the history of the Act involving efforts of the state and local
law enforcement establishment to keep as much operational information as possible
inaccessible to the public, and the countervailing efforts of journalistic and other
groups to maintain some rights of access to information on law enforcement activities. The
net effect, as interpreted by the courts in particular, is a triumph for governmental
secrecy.
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Q: What agencies are entitled to assert the law enforcement
exemption?
A: The public agencies entitled to assert the exemption include not only those with a
general crime-related mission (the Attorney General and the Department of Justice, state
and local police organizations) but any state or local agency engaged in an activity with
a "correctional, law enforcement or licensing" purpose. The latter category
extends, for example, to professional or consumer protection regulatory agencies such as
the Bureau of Collection and Investigative Services, which licenses and oversees
collection agencies (Black Panther Party v. Kehoe, 42 Cal. App. 3d 645 (California
Court of Appeal,1st Dist. 1974)).
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Q: What types of records are subject to the law enforcement
exemption?
A: The documents for which the exemption may be asserted include:
Complaints. Whether in the criminal or consumer protection
domain (Black Panther Party).
Intelligence Information. Gathered not in the
investigation of a particular crime but in the effort to detect potential criminal
activity or relationships. While this category is not so broad as to include all
information "reasonably related to criminal activity", it does include
"information that might identify individuals (who are targets of an intelligence
inquiry), that might identify confidential sources, or that was supplied in confidence by
its original source" (American Civil Liberties Union v. Deukmejian, 32 Cal. 3d
440 (California Supreme Court 1982)).
Security Procedures. Such as California Highway Patrol
training materials detailing enforcement tactics, weapons training, unarmed combat,
searches, handcuffing, excessive speed enforcement, minimum speed enforcement and off-road
vehicle enforcement and pursuit policies, but not those dealing with general Vehicle Code
enforcement, assistance to motorists, freeway stopping of patrol vehicles, transport of
the ill and injured, chain and snow tire enforcement, response to private citizen arrests,
bicycle racing and procedures for dealing with citizen complaints (Northern California
Police Practices Project v. Craig, 90 Cal. App. 3d 116 (California Court of Appeal, 3d
Dist. 1979)).
Records Compiled for Correctional, Law Enforcement or Licensing
Purposes. This category includes the record generated by an investigation itself,
and pre-existing documents that have, at the time of the request, been
"compiled" for law enforcement purposes. It does not include records created for
other purposes, such as assessing a public agency's civil liability for an injury to a
jail inmate (Register Division of Freedom Newspapers v. County of Orange, 158 Cal.
App. 3d 893 (1984)), or routine monitoring of the use of agricultural pesticides by
licensed spray applicators (Uribe v. Howie, 19 Cal. App. 3d 194 (California Court
of Appeal, 4th Dist. 1971)). The court held in the latter case that the exemption does not
apply to a record simply on the basis "that enforcement proceedings may be initiated
at some unspecified future date or were previously considered"; the exemption applies
on the basis of a law enforcement use only when "the prospect of enforcement is
concrete and definite."
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Q: If a pre-existing record that would have been public on its
own merits is "compiled" with others for law enforcement purposes, does the mere
fact of its investigative use render it exempt from disclosure?
A: Probably not. The language in the Uribe case might be read to suggest that when a
record created by an agency for some routine business purpose independent of law
enforcement is "compiled" into an investigative file, all access to that record
is cut off. Under this reading, a request to a city for a copy of a report presented at a
public meeting might be declined if and when the police department, in the belief that it
might be material to a pending investigation into a suspected embezzlement, added the
report to its investigative file. This occasionally encountered "confiscatory"
interpretation -- "You can't have the report because the police have seized it as
part of their investigation" -- is probably incorrect.
The interest served by allowing nondisclosure of pre-existing information
"compiled" for investigative purposes is to conceal the scope of the compilation
itself -- to keep the public and thus those under investigation from knowing what
information the agency is reviewing as material to an investigation. Announcing that a
document will not be released because it has been "seized" by an investigating
agency obviously defeats this purpose, especially when, as will often be the case, the
party under suspicion knows quite well what the document contains, and may even have a
copy. Properly exercised, the exemption simply means that the investigating agency need
not reveal what records it has compiled -- but that records created or accumulated for
other purposes will continue to be available from their original custodians.
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Q: Is there a point after which the law enforcement exemption no
longer applies?
A: No. Under the comparable provision in the federal Freedom of Information Act, law
enforcement investigative records may become accessible to the public with the termination
of the investigation, that is when disclosure would no longer compromise the investigative
process. But under the CPRA the law enforcement exemption has been interpreted to operate
otherwise; it may be asserted indefinitely at the agency's discretion, even after the
investigation ends and there is no further prospect of enforcement (Williams v.
Superior Court, 5 Cal. 4th 227 (California Supreme Court 1993)).
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Q: What if any law enforcement information must be disclosed?
A: As relief from the sweeping effect of the general exemption, two categories of
access have been preserved. But each is limited in two ways. First, the right of access is
to information from the investigative records; there is no right to inspect or obtain
copies of the records themselves. Second, information may still be withheld if to disclose
it would endanger someone involved in the investigation or frustrate the successful
completion of the investigation or a related investigation.
Victims and Insurers. Those with an immediate personal or
financial interest in a matter under investigation are entitled to information of a
certain kind with respect to certain incidents or crimes. These entitled parties include
the victims or their attorneys or other representatives; insurance companies facing a
claim triggered by the incident; others suffering any injury, damage or loss as a result
of certain crimes or disasters, namely arson, burglary, fire, explosion, larceny, robbery,
vandalism, or vehicle theft; or persons entitled to restitution as crime victims. The
information to which these parties are entitled includes the names, addresses and
statements of all persons involved (including, but not limited to, witnesses, but not
including confidential informants); the date, time and location of the incident; and any
diagrams made.
Public and Press. Anyone in the community is entitled to
certain additional information under subparagraphs (1) and (2) of the exemption,
pertaining to complaints, incidents and crimes, and arrests. This information pertains to:
Complaints and requests for assistance: The time,
substance and location of all such communications, and the time and nature of the agency's
response.
Incidents and crimes: With respect to any crime alleged or
committed, or any other incident investigated, the time and date of the report; the time,
date and location of the occurrence; the factual circumstances surrounding the incident or
crime; a general description of any injuries, weapons or property involved; and the name,
age and current address of any victim, with certain exceptions. The victim's address must
be withheld, and his or her name may be withheld at hisor her option, if the crime is one
of sexual assault, child endangerment or abuse, spousal violence or a "hate
crime" involving an infringement of the victim's civil rights. And the address and
telephone number of a victim of or witness to a crime may not be provided to any person
arrested or who may be a defendant in the alleged crime.
Arrests: With respect to every person arrested, the full
name, current address, occupation, date of birth, color of eyes and hair, sex, height and
weight; the time and date of arrest, time and date of booking, and time and manner of
release or current location of detention; the location of the arrest and factual
circumstances surrounding the arrest; the charges on which the person is being held,
including outstanding warrants or parole or probation holds; and the amount of any bail
set. The scope of this information has recently been narrowed by a CPRA amendment that
denies commercial requesters access to addresses of arrested persons, but this amendment
has even more recently been held to be invalid under the First Amendment as an improper
governmental attempt to control the communication of otherwise public information.
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Q: Is there any limit on how long the public portion of law
enforcement information remains accessible?
A: Yes. The right of the press and public to the information above is with respect to
"contemporaneous" crimes or arrests. There is no right of access to information
about events over extended periods in the past, the California Court of Appeal has held,
overturning a trial court's order that the Los Angeles Sheriff's Department produce
information about selected arrests over a ten-year period (County of Los Angeles v.
Superior Court, 18 Cal. App. 4th 588 (2d Dist. 1993)).
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