Appellate Court Vindicates Third Party Privacy Rights Under 1421: Statutory Privileges and Most CPRA Exemptions (Including for Overly Burdensome Requests) May Be Asserted to Redact Records
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.”