HomeMy WebLinkAbout20220722_Gillingham Records ReassessmentCity of San Luis Obispo, City Attorney’s Office, 990 Palm Street, San Luis Obispo, CA, 93401-3249, 805.781.7140, slocity.org
July 22, 2022
Howard Gillingham
7100 Graves Creek Road
Atascadero, CA 93422
Via email only to:
hwgillingham@att.net
RE: Reassessment of Determination to Withhold “After Action Report of SLOPD for
events on May 10, 2021 in and around 3175 Camillia Court”
Dear Mr. Gillingham,
The San Luis Obispo Police Department received your initial record request pursuant to the
California Public Records Act on May 16, 2022. On May 24, 2022, the San Luis Obispo
Police Department informed you of its determination that responsive records were exempt
from disclosure pursuant to Government Code §6254(f), §6255, and Penal Code §832.7(b).
In addition, certain portions the Department asserted constitutional privacy interests of
persons included or depicted in certain requested records and/or their heirs as an
independent exemption of records from disclosure.
Consistent with statutory requirements, we are continuing monthly to reassess our
determination to withhold the requested records. For clarity, the Sherriff’s Office has
referred its investigative file to the District Attorney for review, potential further
investigation, and resolution. The DA’s investigation and determination are not yet
complete. Thus, at this time the City reaffirms that there is clear and convincing evidence
that disclosure would substantially interfere with the ongoing investigation, currently
referred by the Sheriff’s Office and under active review by the San Luis Obispo District
Attorney’s Office. The City maintains that the public interest in preventing this interference
and ensuring the integrity of and thorough and efficient completion of the investigation
outweighs the public interest in disclosure of the requested records at this time.
To the extent that your request encompasses any video or recordings associated with the
case, pursuant to Government Code §6254(f)(4)(A)(ii), an agency may delay disclosure of a
recording related to a critical incident during an active criminal or administrative
investigation provided the decision to withhold is reassessed every 30 days and disclosure of
the recording is found to be a continued interference risk for an ongoing investigation.
As noted, the Sheriff’s Office has forwarded its investigation to the District Attorney’s
Office for review. Until the DA completes its review and determination, the investigation
remains active and ongoing, could be subject to further follow up direction to the Sheriff’s
Office, and fragmented disclosure of records and information prior to completion of the
DA’s work would substantially interfere with the ongoing criminal and administrative
investigations. Specifically, premature disclosure of fragmented pieces of the investigative
materials presents a significant risk of: undue influence on potential witnesses;
compromised efficiency and effectiveness in the completion of the DA’s investigation and
any subsequent investigation the DA’s Office may request of the Sheriff’s Office; factual
mischaracterization or misunderstanding of partial records separate from the complete
investigation and determination of the DA’s review; and misleading the public regarding the
complete facts and conclusions of the investigation.
As a separate and independent basis for delayed disclosure, and for the same reasons set
forth above, the City asserts that the public’s interest in non-disclosure of the fragmented
pieces of investigatory evidence requested clearly outweighs the public’s interest in
disclosure pursuant to Government Code §6255. The court in Becerra v. Superior Court
held that amending the police personnel records statute to deem nonconfidential all agency
records relating to an officer’s discharge of a weapon, used of deadly force, misconduct, or
dishonesty did not require disclosure of requested records which fell within the public
interest “catchall” exemption to disclosure under the California Public Records Act.
Construing Government Code §6255 as applicable to police personnel record requests
honors the Legislature’s intent to balance competing public interests of investigatory
integrity, privacy, and disclosure. Becerra v. Superior Court (App. 1 Dist. 2020) 257
Cal.Rptr.3d 897).
Further, disclosure of those records or recordings depicting Detective Benedetti’s death
constitutes an unwarranted invasion of his personal privacy and of the rights of his
survivors, including, but not limited to, his wife and two young daughters. Similarly,
disclosure of the recording constitutes an unwarranted invasion of the privacy of the other
victim in this incident, Detective Orozco, and the rights of his family, as well as the privacy
rights of Edward Giron and his family. The City does not have authorization to waive the
privacy rights of those affected parties.
Finally, disclosing the requested records would likely interfere with the personal
recollections of an accurate provision of information by parties involved in the City’s
separate internal administrative review of the incident and could similarly compromise the
accuracy, completeness, and integrity of that investigation. Moreover, the City’s
administrative investigation necessarily will need to be informed by the final factual
findings and conclusions of the criminal review being conducted by the DA’s Office and,
therefore, the conclusions of the internal investigation will trail the completion of the DA’s
review.
Based on the facts and circumstances of the current investigations and reasons set forth
above, the City concludes that there is clear and convincing evidence that the present release
of the requested records would continue to substantially interfere with both the criminal and
administrative investigations of the May 10, 2021 incident. In accordance with Government
Code §6254(f)(4)(A)(ii), the City will reassess this position and notify you of our
determination within another 30 days from the delivery of this communication.
While we cannot, at this time, provide you with a specific date for disclosure of the
requested records, we will make non-exempt, responsive records available withing 30 days
of notification that the DA’s Office has concluded its investigation and the City’s ongoing
internal investigation is complete and/or it is determined that disclosure of non-exempt case
related materials will not compromise the completion of the administrative investigation.
We will continue to update you as we learn new facts. The undersigned is responsible for
this determination in consultation with the Chief of Police, Rick Scott.
Sincerely,
Christine Dietrick
City Attorney
CC: Rita Neal, County Counsel
Ian Parkinson, San Luis Obispo County Sheriff
Rick Scott, Chief of Police, City of San Luis Obispo
Derek Johnson, City Manager, City of San Luis Obispo
Dan Dow, San Luis Obispo District Attorney