By Anne Lowe

PUBLIC INFORMATION – A California Public Records Act (CPRA) lawsuit to compel the Office of the Inspector General (OIG) to release its investigative records into the inadequate parole supervision of accused sex slave kidnapper Phillip Garrido was ordered dismissed Wednesday.

The Sacramento Bee, the San Francisco Chronicle and KCRA News had requested parole records and other documents from the California Department of Corrections and Rehabilitation (CDCR) and the OIG after Garrido was arrested in August 2009 on charges of kidnapping and sexually assaulting Jaycee Lee Dugard.

The requests were mostly denied and the news outlets petitioned the California superior court to compel the agencies to disclose the documents. The superior court agreed with the petitioners, but immediately afterward the OIG petitioned the California Court of Appeal for an immediate stay.

The three-judge panel, in an unpublished opinion written by Tani Cantil-Sakauye, since then appointed the new Chief Justice of California, concluded that the documents requested from OIG were exempt from Public Records Act disclosure.

Under Government Code section 6254, subdivision (f), no disclosure is required of records that are: "Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the California Emergency Management Agency, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes."

The investigation materials underlying the report of OIG fall within this exemption. They are investigatory files compiled by a state agency for correctional purposes. . . . Information in public files is exempt as investigatory material only when the prospect of enforcement proceedings is concrete and definite. . . The prospect of enforcement must appear when the investigatory file is created. . . . The exemption for investigatory files "does not terminate with the conclusion of the investigation. Once an investigation . . . has come into being because there is a concrete and definite prospect of enforcement proceedings at that time, materials that relate to the investigation and, thus, properly belong in the file, remain exempt subject to the terms of the statute." . . .

Here OIG launched an investigation into the parole supervision of Garrido by CDCR, a very high profile case. OIG's task was to determine whether CDCR's parole policies were adequate and whether they were followed in this instance. Accordingly, the prospect of enforcement proceedings was concrete and definite when the investigation was launched. Indeed, Penal Code section 6131 contemplates referring investigations for disciplinary action or possible criminal prosecution. . .

This is not a situation like that presented in Uribe v. Howie (1971) . . . There, a farm worker who had physical disorders she suspected were caused by crop pesticides sought permission to inspect monthly pesticide spray reports. The trial court found the reports exempt under Government Code section 6254, subdivision (f) as investigatory files compiled for correctional, law enforcement or licensing purposes. . . The appellate court disagreed. While the spray reports may have been used in reviewing licenses, that was not the primary purpose for which they were compiled, nor were they currently being put to that use. . . Here, by contrast, the materials real parties in interest seek were compiled and used primarily, if not exclusively, in the conduct of OIG's investigation of CDCR.

(The media plaintiffs) do not challenge the nature of the materials as exempt under Government Code section 6254, subdivision (f). Rather, they contend that subdivision does not apply because Penal Code section 6131 is a more specific statute addressing OIG investigative materials and it requires disclosure. As discussed above, we reject an interpretation of Penal Code section 6131 that requires public disclosure of underlying investigative materials unless a showing is made that disclosure would hinder prosecution or violate the law. Instead, we find disclosure is entrusted to the discretion of the Inspector General. Thus, with respect to underlying investigative materials, Penal Code section 6131 and Government Code section 6254, subdivision (f) are consistent and disclosure is not required under CPRA.