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HomeMy WebLinkAboutRecords Reassessment April 6 2023City of San Luis Obispo, City Attorney’s Office, 990 Palm Street, San Luis Obispo, CA, 93401-3249, 805.781.7140, slocity.org Page 1 April 6, 2023 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 December 8, 2022, 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, 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 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 clearly 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 Page 2 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. 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 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 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 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. The City does not have authorization to waive the privacy interests of those affected Reassessment of Determination to Withhold May 10, 2021, Body Camera Footage and Accompanying Documents Page 3 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 §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 Dan Dow, San Luis Obispo District Attorney Rick Scott, Chief of Police Derek Johnson, City Manager, City of San Luis Obispo