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Fredericks v. Superior Court (City of San Diego)

California Court of Appeals, Fourth District, First Division

January 16, 2015

THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent CITY OF SAN DIEGO, et al., Real Parties in Interest.

Proceedings in mandate from an order of the Superior Court of San Diego County No. 37-2013-00070216- CU-WM-CTL. Ronald S. Prager, Judge. Petition granted with directions.

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Salaami Firm and Ehson Salaami for Petitioner.

Reporters Committee for Freedom of the Press, Katielynn B. Townsend; Davis Wright Tremaine, Kelli L. Sager; Californians Aware, Terry Francke; California Newspaper Publishers Association, Jim Ewert; Digital First Media, David Bralow; First Amendment Coalition, Peter Scheer; Los Angeles Times, Jeffrey Glasser; The McClatchy Company, Karole Morgan-Prager and Juan Cornejo as Amici Curiae on behalf of Petitioner.

Jan I. Goldsmith, City Attorney, Mary T. Nuesca, Assistant City Attorney, Paige E. Folkman and Michael T. Phelps, Deputy City Attorneys, for Real Parties in Interest.



This petition presents novel issues of law regarding a request made under the California Public Records Act (Gov. Code, [1] § 6250 et seq.; CPRA), for disclosure of "information" found in "complaints or requests for assistance" that were received by a local law enforcement

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agency, over a specified time period. (§ 6254, subd. (f)(2).) We also address questions about the allowable copying and ancillary costs to be charged for inspection, review, or production of such information. (§§ 6253, subds. (a), (b); 6253.9, subd. (b).)

Petitioner Farhad Fredericks made a CPRA request to defendants and real parties in interest, the City of San Diego and the San Diego Police Department (the Department), for all "complaints and/or requests for assistance" made to the Department during a six-month period (180 days), pertaining to burglary and identity theft. (Pen. Code, §§ 459, 530.) In response to the request, the Department notified Fredericks that its investigation reports ("Incident History Reports") are exempt from disclosure under the CPRA, but it would provide him with redacted, summarized information in its relevant "Calls for Service" reports (e.g., deletion of names of victims), but only about incidents that had occurred during the 60 days before the date of the request. If he continued to seek the Incident History Reports for the same period, they would be provided in redacted form, conditioned on payment of costs of $65 per hour for staff preparation costs, plus a $0.25 charge per page disclosed.

In response, Fredericks filed a petition for writ of mandate in the trial court to challenge the Department's incomplete compliance with his request. He first acknowledged that under section 6254, subdivision (f), "any investigatory or security files compiled by any... state or local agency for correctional, law enforcement, or licensing purposes" are exempt from disclosure. However, Fredericks contends that he, as a member of the public, was entitled under section 6254, subdivision (f)(2) to receive all the information requested from such complaints and/or requests for assistance, for the time period he specified, and that his inspection and review of the information should be provided without charge other than the direct cost of duplication. (§ 6253, subd. (b).)

The trial court denied the petition, reasoning that the CPRA only requires the Department to provide information relating to current or "contemporaneous" police activity. (City of Los Angeles v. Superior Court (Kusar) (1993) 18 Cal.App.4th 588, 595 [22 Cul.Rptr.2d 409], (Kusar) [construing previous versions of § 6254, subd. (f)(1), (2)].)[2] The trial court acknowledged the CPRA does not define "contemporaneous, " as that term of art is used in the Kusar decision. However, the court ruled that Fredericks's request for six months of information, going beyond the 60 days of Calls for Service reports already provided, was excessive on its face. The court found it unnecessary to address the issues of privacy rights or burdensomeness of production. The

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written order and judgment included a finding that the Department was justified in charging duplication costs for production of records of contemporaneous activity.

In construing such disclosure requests, the policy of the CPRA requires the courts to consider the information that is being requested, not only the precise type of records that must be provided. (Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1072 [112 Cal.Rptr.2d 80, 31 P.3d 760] (Haynie); Williams v. Superior Court (1993) 5 Cal.4th 337, 348-349 [19 Cal.Rptr.2d 882, 852 P.2d 377] (Williams).) Pursuant to section 6254, subdivision (f)(1) and (2), even if a requested record (e.g., an investigatory file) is exempt from disclosure, a law enforcement agency may be required to produce to the public the information listed in those subparts (e.g., the "substance" of complaints or requests for assistance, and any recorded description of the "factual circumstances surrounding the crime or incident"). (See Williams, supra, at pp. 360-361.)

A "catchall exemption" in the CPRA is set forth in section 6255, subdivision (a), providing that even if a public agency cannot justify the withholding of its records by demonstrating that an applicable statutory exemption applies, the agency will be allowed to make a showing about whether " 'on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record." (Williams, supra, 5 Cal.4th at p. 347, fn. 9.)

In this original proceeding, we initially address the interpretation of section 6254, subdivision (f)(2), about the temporal and substantive scope of disclosure that a local law enforcement agency must make under the CPRA, as follows: (1) Whether the Department adequately responded to the request by supplying its summary Calls for Service reports, in light of any applicable exemptions from disclosure of records or information; and (2) whether the Department was justified in denying Fredericks the requested access to information from "complaints and/or requests for assistance" that was more than 60 days old, that it categorized as "historical" in nature.

This record requires us to address not only the claims about specific exemptions from disclosure, but also related questions about the reasonableness of a given set of requests and responses in the context of the costs ruling. Under section 6253, subdivision (b), subject to any applicable exemptions, an agency has the duty to respond to "a request for a copy of records that reasonably describes an identifiable record or records...." The agency shall make such records available "upon payment of fees covering direct costs of duplication, or a statutory fee if applicable." (Ibid.) An exact copy

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shall be provided unless impracticable to do so. (Ibid.)[3] We address whether the trial court correctly concluded that the Department could properly require Fredericks to pay specified staff preparation costs for any further information to be provided, such as the Incident History Reports in a redacted form. (See North County Parents Organization v. Department of Education (1994) 23 Cal.App.4th 144, 146-147 [28 Cal.Rptr.2d 359] (North County Parents Organization) [allowable direct costs of duplication under former § 6257 (predecessor of § 6253) do not include ancillary tasks of retrieval, inspection and handling of files]; however, since 2000, § 6253.9, subd. (b) has permitted allocation of additional costs for production of information in an electronic format.)

The trial court resolved all issues in the petition mainly in reliance on Kusar, supra, 18 Cal.App.4th 588, which deals with a former version of the statute and distinguishable factual circumstances. We conclude the trial court's narrow construction of the Department's disclosure duties under the CPRA is incorrect both as to the substantive and temporal limits placed upon them. Section 6254, subdivision (f)(2) must be read according to its plain terms, and these terms do not include an express time limitation on production of only "contemporaneous" or "current" records. To properly implement the statutory terms, the trial court was required to focus on additional relevant criteria in performing an appropriate balancing of interests under section 6255, with regard to not only production of further nonexempt information described in section 6254, subdivision (f)(2), but also the reasonable costs of production. (§§ 6253, subds. (b), (c); 6253.9, subd. (b).) We grant the petition and direct the trial court to allow such appropriate further proceedings as will determine the reasonable and appropriate levels of disclosures and the allowable costs, according to the principles set forth in this opinion.

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A. Request and Response

On August 20, 2013, Fredericks e-mailed a CPRA request to the Department. Under section 6254, subdivision (f)(2), he sought information about all "complaints and/or requests for assistance" pertaining to burglary and identity theft for a six-month period, for the entire City of San Diego area which the Department served. Fredericks was seeking details including the times, dates, and locations of the reported occurrences, the times and dates of the reports, the names and ages of the victims, and the factual circumstances surrounding the incidents. His request asked when the identified records could be "viewed and inspected."

In its letter of response dated August 23, 2013, the Department told Fredericks that in obtaining such information, it uses the procedure of having its officers in the field prepare records called Incident History Reports, which are generated by the responding officers and computer data identifying reporting parties and witnesses, and are thus created before further investigations into that data have taken place. Next, the Department prepares reports called Calls for Service that are digests of such Incident History Reports. Calls for Service reports include the following information in table form, organized according to a particular reported offense (here, burglary [Pen. Code, § 459] or identity theft [Pen. Code, §530]), an incident number, a date and time of the report, a location, the police beat number, and a code for the disposition (e.g., "A" for arrest, etc.).

Next, the information provided by the Calls for Service reports includes the amount of time spent by the responding officer, which is designated OST ("Out of Service Time" for the responder). The columns on the Calls for Service reports that list information about the reporting party and his or her telephone number are redacted. Due to the early stage of the investigation, it is not clear from the materials in the record whether the reporting party is necessarily the same as the victim of the reported offense.

In reliance on Kusar, supra, 18 Cal.App.4th 588, the Department took the position that since its Calls for Service reports were derived from officer-prepared Incident History Reports that were contemporaneous with the service calls, it was required to supply information only for a 60-day period, and its policy was to characterize any older records as "historical" in nature. The Calls for Service reports included the time, date, and location of the service request, and the Department took the position that it could not

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produce additional information such as names of potential victims of the incidents, due to privacy concerns and to avoid endangering the successful completion of an investigation, or the safety of any witnesses or victims. (§ 6254, subd. (f); Williams, supra, 5 Cal.4th at p. 349.)[4]

The Department then told Fredericks that if he wanted more information, such as the Incident History Reports, he would have to pay $65 per hour for "fully loaded" labor costs of printing and redaction of victims' names and contact information, plus $0.25 per page for each requested copy, per incident.[5]

B. Petition and Trial Court Hearing

This action for mandamus and declaratory relief seeks an order to compel the Department to produce further "information" as requested. In its opposition, the Department provided a declaration from Police Officer Jericho Salvador, who acts as its CPRA liaison with the public. He explained the derivation of the Calls for Service reports from the Department's officers' computerized Incident History Reports, and he stated that neither of them identifies a victim, but only reporting parties and witnesses (owing to the very preliminary stage of the investigation). Incident History Reports themselves can only be viewed in the Department's computer system, which unavoidably contains confidential information such as witness and reporting party information.

On Fredericks's request for burglary complaints to police, Officer Salvador located 382 incidents and provided him with 60 days of Calls for Service reports. On Fredericks's request for identity theft complaints, he located 712 incidents and provided him with 60 days of such Calls for Service reports.

Officer Salvador's declaration states that if he were to provide the underlying Incident History Reports, they would first have to be reviewed and redacted to remove witness or reporting party information, and then copied as modified. For the current 60-day request for information, it would take over two full work weeks to ...

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