Are Records of Complaints Public Records In California Under the California Public Records Act?

By Michael Reiter, Attorney at Law

Are records of complaints disclosable public records in California under the Public Records Act?

“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, the California Emergency Management Agency, 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. However, 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 . . .”  Government Code section 6254(f).

The California Supreme Court, in Hayne v. Superior Court (2001) 26 Cal. 4th 1061, held that the “records of investigation exempted under section 6254(f)  encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency.”  Id. at  1071.   Therefore, records of complaints to law enforcement agencies may be exempt under section 6254(f).  Government Code section 6254(f) is one of the few sections that protects records, but requires the public agency to provide information to the public derived from records, but not the records themselves.  Many agencies just provide face sheets that has all the required information to be disclosed.

California Government Code section 6254(k) exempts disclosure of  records, “the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”  The official information privilege, found in California Evidence Code section 1040.  Official information is “information obtained in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”   California Evidence Code section 1040(a).  There is a separate section protecting the disclosure of the identity of an informant.  Evidence Code section 1041.
One court used the California Public Records Act’s catch-all exemption, Government Code section 6255 to deny records regarding the identity of complainants :

“The Public Interest in Nondisclosure of Airport Noise Complainants’ Personal Information Clearly Outweighs the Public Interest in Disclosure Under the Particular Facts of this Case.”   City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1022.

Sometimes public entities release records that are subject to an exemption.  In many cases, the public entity can release records subject to an exemption, even though an exemption exists.  Much of that is attributable to the nature of the regime at the public entity.  Some public entities are more open than others.  If someone has the opportunity to make an anonymous, credible complaint, that opportunity should be taken.  Another way is to use a third-party to make a complaint.  Expect that if a complaint is made, the public entity will not protect the complainants’ anonymity.

For public entities, it is good public policy to protect complainants when possible.   Most code enforcement is done on a complaint-basis, and the efficacy of a program is reliant on the public informing the public entity of violations.  Therefore, agencies should allow anonymous complaints, or do their best to protect complainants.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

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