Two recent decisions out of the Sixth Appellate District and one out of the First Appellate District provide helpful guidance for public agencies when responding to California Public Records Act (PRA) requests for investigative records, preparing for potential PRA litigation, and maintaining records responsive to PRA requests.

On September 25, 2023, the First Appellate District issued its decision in BondGraham v. Superior Ct. of Alameda Cnty., (2023) 95 Cal. App. 5th 1006 (BondGraham), holding that the City of Oakland improperly redacted portions of an Internal Affairs investigative report related to peace officer misconduct. In considering the City’s reliance on Penal Code section 832.7 to justify its redactions, the Court emphasized “the [PRA] must be ‘broadly construed’” to “further the people’s right of access.” (Id. at p. 1015.)

On October 10, 2023, the Sixth Appellate District issued its decision in County of San Benito v. Superior Court of San Benito County (2023) 96 Cal.App.5th 243 (County of San Benito) holding that a party may not use PRA litigation to obtain – through the Civil Discovery Act – the very records at issue in the litigation. Nor may a party use the PRA litigation to obtain information from a public agency that it would not otherwise be entitled to under the PRA.

Finally, on October 23, 2023, the Sixth Appellate District issued its decision in City of Gilroy v. Superior Court (2023) 96 Cal.App.5th 818 (City of Gilroy) holding that the PRA does not impose a duty upon public agencies to preserve potentially responsive records that otherwise would be subject to an automatic destruction policy.

Background

BondGraham et al. v. Superior Court

Petitioners, two Oakland journalists, sought records related to a scandal where several members of the Oakland Police Department (OPD) had sex with an underage girl. This included OPD's Internal Affairs investigative report. The City of Oakland produced a redacted version of the Internal Affairs report and Petitioners sought writ relief, arguing that certain redactions were improper under Penal Code section 832.7(b). Penal Code sections 832.7 and 832.8 are commonly known as the Pitchess statutes. The Pitchess statutes are considered an exemption to disclosure under the PRA because they provide that specified law enforcement personnel records are confidential. In 2018, the Legislature amended Penal Code section 832.7 to add an exception in subsection (b), which now provides that records relating to the investigation of a peace officer's (1) use of force, (2) sustained finding of sexual assault, or (3) a sustained finding of dishonesty, shall not be confidential and shall be made available for public inspection pursuant to the PRA. Although Section 832.7 contains several provisions allowing for the redaction and/or withholding of records and information, which the City relied upon to redact the Internal Affairs report, the Court noted that such exceptions to disclosure must be “narrowly construed” consistent with the PRA’s statutory scheme to “further[] the people’s right of access.”

In the trial court proceedings, the City argued that the Internal Affairs report was properly redacted, in part because the redacted text related to "[a] record from a separate and prior investigation or assessment of a separate incident” that was not independently subject to disclosure. See Penal Code section 832.7(b)(4). The trial court also agreed with the City that the Internal Affairs report was exempt from disclosure under Penal Code section 832.7(b)(5) because it addressed multiple, separate incidents involving OPD officers and the underage girl.

The First District Court of Appeal reversed, finding that the Internal Affairs report was a single record prompted by a single incident resulting in a singular investigation. The fact that the investigation addressed multiple incidents of potential misconduct, or that it included allegations of misconduct against multiple officers, did not transform the report into a “compilation” of "separate and prior investigation[s] or assessment[s] of a separate incident" exempting that information from disclosure under Penal Code sections 832.7(b)(4) and (b)(5), respectively. The court also went on to hold that the plain text of section 832.7(b)(4) does not permit redaction, rather it permits withholding of a record, not information contained within a record.

Finally, the court suggested that some of the report’s contents could have been withheld under section 832.7(b)(7), which allows an agency to withhold peace officer investigative records on the grounds that the public interest in withholding the information outweighs the public interest in disclosure, similar to the Public Records Act’s "public interest balancing test." See Gov. Code, section 7922.000; Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1337-1339. However, the City never raised this argument.

County of San Benito v. Superior Court

Petitioner, a legal resources center, submitted two PRA requests to the County of San Benito for records relating to a proposed development project. Although the County represented that it produced all responsive, non-privileged records responsive to the requests, Petitioner alleged otherwise, then filed a petition for writ of mandate to compel the County to produce additional records. After commencing litigation, Petitioner propounded written discovery pursuant to the Civil Discovery Act (Act), including document requests for all documents responsive to the PRA requests, as well as special interrogatories seeking specifics about the County’s efforts to investigate (or not) the subject of the requested records. Petitioner subsequently filed motions to compel, which the trial court largely granted. The County then filed a writ of prohibition challenging the trial court’s discovery order.

The Sixth District Court of Appeal held that although certain of Petitioner’s discovery requests were proper, two types of requests were improper: (1) requests to produce the same documents sought by the underlying PRA request; and, (2) interrogatories calling for the County to explain its investigation (or lack thereof) related to the subject of the requested records. In finding that the document requests were improper, the appellate court reasoned that the requested records themselves were not reasonably calculated to lead to the discovery of evidence admissible in the PRA enforcement action, and allowing a PRA plaintiff to prosecute its PRA request on a pretrial discovery motion would improperly allow the discovery process to preempt adjudication of the merits of the litigation. In so holding, the appellate court made clear a PRA plaintiff cannot strategically invoke the litigation process and seek the very documents at issue via the Act to do an end run around the PRA enforcement proceeding. Further, in holding that the interrogatories were improper, the appellate court reasoned that because the PRA does not require a public entity to create records to respond to a request, a public entity is under no obligation to generate new substantive content irrelevant to the enforcement proceeding as a means to collect information that is not otherwise subject to disclosure under the PRA. The appellate court made clear that “the availability of pretrial discovery in [PRA] actions neither creates substantive disclosure obligations untethered to the narrow issue of whether the agency has a duty of disclosure nor provides an avenue for avoiding resolution of that fundamental question.”

City of Gilroy v. Superior Court

Petitioner, a non-profit based in Silicon Valley, made several public records requests to the City of Gilroy during its investigation of complaints by unhoused persons that their personal property was destroyed during homeless encampment cleanups. Petitioner requested any and all public records regarding the encampment cleanups, including video footage, and the City provided responsive materials. Petitioners were dissatisfied with the City’s responses to its PRA requests and filed a petition for writ of mandate and a complaint for declaratory relief alleging the City violated the PRA. Petitioner argued the City conducted inadequate searches for public records, including video camera footage, improperly withheld all police video camera footage, and sought an injunction preventing the City from destroying any records requested under a PRA request and deemed exempt for a period of three years after receiving the PRA request. The trial court denied the petition for writ of mandate and Petitioner’s request for injunctive relief, but granted the declaratory relief action in part. Specifically, the trial court found that the City violated the PRA in responding to the Petitioner’s public records requests but rejected the Petitioner’s request for a declaration that the City violated the PRA by failing to preserve responsive records it claimed were exempt while Petitioner’s requests were pending and prior to court review.

The Sixth District Court of Appeal reversed in part and affirmed in part. First, the appellate court reversed the trial court’s grant of declaratory relief on the grounds that the City violated the PRA by conducting an inadequate search for responsive records. The appellate court reasoned that the PRA “does not provide for declaratory relief other than to determine a public agency’s obligation to disclose records,” therefore, Petitioner could not seek declaratory relief pursuant to the PRA with regard to the City’s alleged improper search for, and production of, documents responsive to the public records requests. Moreover, because the City had produced all responsive, non-exempt bodycam footage in its possession, and the bodycam video the City withheld was exempt from disclosure, Petitioner’s allegations of the City’s impropriety were moot. As such, there was no “actual controversy” subject to declaratory relief; the trial court’s grant of declaratory relief with regard to alleged past acts – which is not authorized under either Cal. Code of Civil Procedure section 1060 or the PRA – was an abuse of discretion.

Next, the appellate court affirmed the trial court’s rejection of Petitioner’s request for a declaration the City violated the PRA by failing to preserve responsive records it claimed were exempt while the public record requests were pending and prior to court review. Petitioner argued that the PRA should be broadly interpreted to impose a duty upon public agencies to preserve all documents responsive to a public records request but withheld as exempt for a period of three years. Petitioner argued that without imposing such duty to preserve, public agencies are able to delay and obstruct the disclosure of public records by asserting blanket, potentially invalid exemptions to “run out the clock.” Although the appellate court acknowledged Petitioner’s concern, it found that the PRA “is not a records retention statute” and does not require a public agency to retain potentially responsive records. Thus, the court would not expand upon the duties imposed by the legislature upon a public agency by the PRA.

Practical Guidance and Takeaway

The BondGraham case serves as an important reminder that courts will broadly construe the PRA in favor of disclosure to “further[] the people’s right of access.” Meanwhile, exceptions to the PRA such as the Pitchess statutes will be narrowly construed, in this case to prevent agencies from combining investigative reports to avoid disclosure. Therefore, when reviewing and responding to a PRA request, public agencies should carefully analyze the applicability of any exemptions as exceptions to disclosure are likely to be narrowly construed.

The County of San Benito case defines the boundaries of what is properly the subject of discovery under the Civil Discovery Act in a PRA action and may assist public agencies in avoiding strategic PRA actions designed to do an end run around the PRA.

The City of Gilroy case clarifies that the sole purpose of a PRA action is to expeditiously determine a public agency’s obligation to disclose records, therefore, a PRA litigant may not seek declaratory relief under the PRA with respect to the propriety of an agency’s past conduct in responding to PRA requests. This provides helpful guidance to public agencies on the permissible scope of PRA actions. The City of Gilroy case also clarifies that the PRA is not a records retention statute and thus does not obligate public agencies to preserve documents responsive to a PRA request while the request is pending. This decision provides critical guidance to public agencies attempting to navigate public records requests and related demands for preservation of records, while also complying with their document retention policies and attempting to mitigate the unnecessary expenditure of public funds.