PUBLIC INFORMATION — A class action public records lawsuit against the City of Los Angeles was recently filed in superior court, challenging the $23 fee for crime reports charged by LAPD to crime victims needing copies for their insurance claims, according to open government researcher Scott Nelson.


"Jim Lissner," Nelson says, "had provided me with all his files from his earlier crusade to lower the fees of crime reports statewide (Jim’s latest efforts are fighting the red light cameras in CA).

"In December 2009 I told a lawyer friend, Steven Derelian, about Jim’s efforts, and particularly about the LAPD fee. I then provided Steven with a copy of transcripts Jim had acquired showing the fee was abruptly raised from $13 to $23 (even after he had testified that they needed to lower the fee), and also gave Steven my several compilations on the "direct costs of duplication.

"As it turned out, Steven knew of a lady who was the victim of a crime and had paid the $23 fee last year. And of course, many more persons have paid this fee in the past few years. Thus, several attorneys have now joined to file what could be the first known class action public records lawsuit in California."

Background:

In Vallejos v. California Highway Patrol, 89 Cal.App.3d 781(1979), three men separately sued the CHP for restitution, accounting and injunctive relief, alleging they had been charged for copies of traffic accident reports more than the CPRA’s then prevailing default fee—set in then Government Code §6257—of 10 cents per page.  Two of the three cases consolidated at trial and on appeal were framed as class actions. The cases were dismissed on the Department’s demurrer that the accident reports were not public records within the meaning of Section 6257 (the fee provisions are now found in Section 6253, subdivision (b)). As the appellate court saw it, “the threshold, if not the only, issue” before it was “whether written traffic accident reports prepared and retained by the California Highway Patrol during the year 1976 were ‘identifiable public record[s]’ for which reproduction costs were limited to 10 cents per page.” 89 Cal.App.3d 783.

Relying upon the rationale of (Cook v. Craig), we are persuaded to hold that the traffic accident reports sought in the instant case are likewise public records within the meaning of the [California Public Records] act. The language of section 6252 subdivision (d) is "sufficiently broad" to include these reports within its definition as "containing information relating to the conduct of the public's business prepared … by a state agency." "The filing of a document imports that it is thereby placed in the custody of a public official to be preserved by him for public use. Because for a season its value is best conserved by maintaining its confidential character by excluding public gaze, it becomes no less a public record.

Id. at 785. But the Department insisted nonetheless that accident reports, as investigatory records of a law enforcement agency and as confidential records under the Vehicle Code, were exempt from general public disclosure—as distinguished from disclosure to interested parties—and thus not “public” records subject to Section 6257’s copy fee limit. The appellate court disagreed.

While it is true these reports are deemed confidential by Vehicle Code section 20012 and perhaps privileged under Evidence Code section 1040, for reasons to follow they may not be exempt from disclosure in these cases. While the general public is denied access to this information such is not true with respect to parties involved in the incident or others who have a proper interest in the subject matter. For example, subdivision (f) of Government Code section 6254 provides in part that: "except that local police agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the persons involved in an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, …"
    Vehicle Code section 20012 renders the reports confidential, "except that the Department of the California Highway Patrol or the law enforcement agency to whom the accident was reported shall disclose the entire contents of the reports, including, but not limited to, the names and addresses of persons involved in, or witnesses to, an accident, the registration numbers and descriptions of vehicles involved, the date, time and location of an accident, all diagrams, statements of the drivers involved in the accident and the statements of all witnesses, to any person who may have a proper interest therein, including, but not limited to, the driver or drivers involved, or the legal guardian thereof, the parent of a minor driver, the authorized representative of a driver, or to any person injured therein, the owners of vehicles or property damaged thereby, persons who may incur civil liability, including liability based upon a breach of warranty arising out of the accident, and any attorney who declares under penalty of perjury that he represents any of the above persons." Thus there exists an obvious exception to the exemption granted by section 6254.

Id. at 786. Moreover, the Department waived its ability to argue that the records were exempt from disclosure when it provided copies to the plaintiffs, the court said, concluding that the plaintiffs should be permitted to amend their complaint to allege that they were “interested or proper parties” entitled to the accident reports as such under the CPRA, and reversed and remanded accordingly.  Since the trial court did not reach the Department’s other grounds for demurrer—“theories of governmental immunity, lack of payment under protest, as being improper class actions, as lacking compliance with claim statutes and that no cause for refund of money has been stated—the appellate court observed that those could be considered “in due course.” Id. at 786.

Local law enforcement agencies besides LAPD sometimes charge interested parties significantly more for crime and accident reports than the “direct costs of duplication,” apparently because they share the view rejected in Vallejos—that since these documents are not available to the general public they are not “public records” to which the copy fee limit attaches.