HomeMy WebLinkAboutSeptember 22_Records ReassessmentSeptember 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. At such time as the
investigation is complete, the City will produce redacted versions of responsive records subject
to disclosure, with redactions limited to those necessary to protect the privacy interests
referenced.
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 i nternal 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