HomeMy WebLinkAboutJanuary 27, 2023 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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January 27, 2023
Paula Canny
Law Offices of Paula Canny
840 Hinckley Road, Suite 101
Burlingame, CA 94010
Sent via email to:
Pkcanny@aol.com
Re: Reassessment of Determination to Withhold May 10, 2021, Body Camera Footage
and Accompanying Documents
Dear Ms. Canny:
The City of San Luis Obispo (“City”) received your initial record request pursuant to the
California Public Records Act delivered via email on June 30, 2021. On July 9, 2021, the City
informed you of our determination that responsive records were exempt from disclosure
pursuant to Government Codes §7923.600 and 7923.605 (formerly Government Code §6254 (f)),
§7922.000 (formerly Government Code §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, would withhold the records from disclosure.
Consistent with statutory requirements, we are continuing monthly to reassess our
determination to withhold the requested records. Based on continuing re‐evaluation and
confirmation that the investigation of the District Attorney is ongoing, we reaffirm that
there is clear and convincing evidence that disclosure at this time 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 and
thorough and efficient completion of the investigation outweighs the public interest in
disclosure of the requested records at this time.
Pursuant to Government Code §7923.625(a)(2) (formerly 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.
Reassessment of Determination to Withhold May 10, 2021, Body Camera Footage
and Accompanying Documents
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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
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 §7922.000 (formerly 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 §7922.000 (formerly
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.
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 clients’ 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.
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.
Reassessment of Determination to Withhold May 10, 2021, Body Camera Footage
and Accompanying Documents
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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 reaffirms its determination 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 §7923.625(a)(2) (formerly 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
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