The San Diego area’s Fourth District Court of Appeal has concluded that police and sheriff’s departments have no legal authority to restrict public access to the information in crime and arrest reports only to those in the recent past.
That decision in Fredericks v. Superior Court parts company with the view of the Second District in County of Los Angeles v. Superior Court, which holds that law enforcement agencies can refuse to release information concerning no longer “contemporaneous” crimes. That 2000 decision has since led most if not all departments to set limits of a few weeks or so on their obligation to provide access under the California Public Records Act. As a result, using law enforcement records for research by journalists, scholars and watchdogs to trace patterns of police practices or crimes over time became impossible.
The Fourth District’s opinion, issued last Thursday, creates a conflict that is likely to invite review in the State Supreme Court to settle the question.
Meanwhile, the court’s other conclusion is at least as consequential for the Public Records Act as a whole, opening the door to the argument that an extraordinary burden of processing longer-term records requests—to identify and remove confidential information found in such reports—may sometimes justify either denying access or requiring the requester to pay review and redaction costs, if a judge decides that there is a correspondingly slim public interest in disclosure. The justices in fact remanded the case to the trial court for a determination on such issues, focusing not only on the department’s processing costs but the “reasonableness” of the request.
The plaintiff in the case, Farhad Fredericks, sought six months of legally disclosable details about burglary and identity theft complaints from all areas in the city of San Diego. He said he was concerned about such incidents as both a property investor and a person concerned for his family’s safety.
The Fourth District’s opinion was written for the court by Justice Richard D. Huffman, who was the dissenter in the court’s 1994 opinion in North County Parents Organization for Children With Special Needs v. Department of Education. That case holds that the California Public Records Act limits public agencies to charging the “direct costs of duplication”—photocopying costs and perhaps labor involved in the copying—and not the processing costs of searching for records or reviewing their contents for confidential information to be redacted.
Justice Huffman at that time stated, “I believe that an interpretation of ‘direct costs of duplication’ as including directly related search, compilation, review, and deletion expenses is consistent with … allowing access to public records to be circumscribed in appropriate instances by reasonable conditions regarding format and price.”
In any event, Justice Huffman notes in the current opinion that the Public Records Act has since been amended to allow agencies to charge requesters “additional costs for production of information in an electronic format.”
The rub comes when requesters (like Fredericks in this case) ask not to get copies of records but to inspect them—a distinct legal right under the Public Records Act. The Attorney General has concluded that agencies may not charge requesters for simply inspecting public records. But when the information sought for inspection is kept in electronic format, some agencies contend that the request can be accommodated only by printing out the records and manually redacting confidential information.
This issue appears to have reached a court only once to date. The Superior Court of San Bernardino Superior Court ruled last September that the Redlands Unified School District had no authority “to pass the cost of redaction to a party wishing to view public records . . .” (emphasis in the original).