HomeMy WebLinkAboutLagier_Records ReassessmentCity of San Luis Obispo, City Attorney’s Office, 990 Palm Street, San Luis Obispo, CA, 93401-3249, 805.781.7140, slocity.org
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December 8, 2022
Alisa Lagier
2307 Valle Forge Way
Roseville , CA 95661
Sent via email to: alisalagier@yahoo.com
Re: Determination to Withhold May 10, 2021, Body Camera Footage and Accompanying
Documents
Dear Ms. Lagier:
The City of San Luis Obispo (“City”) received your initial records request pursuant to the
California Public Records Act delivered via email on November 8, 2022. On, and as we have
discussed the responsive records are exempt from disclosure pursuant to Government
Code §6254 (f), §6255, and Penal Code §832.7 (b), in addition to the constitutional privacy
interests of persons depicted in certain requested records and/or their heirs, and,
therefore, those records are currently being withheld from disclosure, until such time as all
pending investigations are complete. Notwithstanding the exemptions from disclosure
under the CPRA, the City’s outside counsel and I have been in regular communication with
you and your mother and we have offered both you and Ms. Wichman the opportunity to
review records and video, subject to the protective order issued by the judge in your
pending litigation against the City. That offer remains open.
Consistent with statutory requirements, we will continue monthly to reassess our CPRA
determination to withhold the requested records and will otherwise comply with discovery
obligations in your pending case. Based on continuing re-evaluation and confirmation that
the investigation of the District Attorney is ongoing, and consistent with the City’s response
for the same or similar records by other CPRA requestors, the City concludes that there is
clear and convincing evidence that CPRA disclosure at this time would substantially
interfere with the ongoing investigation, currently referred by the Sherriff’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 and
thorough and efficient completion of the investigation outweighs the public interest in
disclosure of the requested records at this time.
Reassessment of Determination to Withhold May 10, 2021, Body Camera Footage
and Accompanying Documents
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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 Sherriff’s Office,
and fragmented and uncontrolled 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
Sherriff’s Office; factual mischaracterization or misunderstanding of partial records
separate from the complete investigation and determinations 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, use 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 (CPRA). 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 portions of the recording depicting Detective Benedetti’s death
constitutes an unwarranted invasion of his personal privacy and of the rights of his
survivors and heirs, including, but not limited to, his wife and two young daughters and his
parents. Similarly, disclosure of the recording constitutes an unwarranted invasion of the
privacy rights of the other victim in this incident, Detective Orozco, and the rights of his
family. While it is understood that your privacy interests are also certainly implicated, and
apparently waived in favor of disclosing this recording, those interests are in direct conflict
with and counterbalanced by the privacy interests of both Detectives and their families.
Reassessment of Determination to Withhold May 10, 2021, Body Camera Footage
and Accompanying Documents
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The City does not have authorization to waive the privacy interests of those affected
parties. At such time as the investigation is complete, the City will endeavor to 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 and 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 conclusion of that 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 has determine 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 date certain for disclosure of the
requested records, we will make non-exempt, responsive records available within thirty
(30) days of notification that the District Attorney’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;
Dan Dow, San Luis Obispo District Attorney
Rick Scott, Chief of Police; Derek Johnson, City Manager, City of San Luis Obispo