The California Law Revision Commission on Thursday reported progress to date in cleaning up the tangled bloat that is the California Public Records Act. The result makes it apparent that the Commission’s two principal goals are, in one critical section, hopelessly in conflict.
The goals, in essence, are to produce a revised statute that is reorganized for clarity without changing the substantive law in the slightest, while making the CPRA more user-friendly by being easier to understand.
The Commission’s study, launched two years ago responsive to a request from the legislature, was challenged to recommend a reshuffling of the state’s public information access law to “accomplish all of the following objectives:
“(1) Reduce the length and complexity of current sections.
“(2) Avoid unnecessary cross-references.
“(3) Neither expand nor contract the scope of existing exemptions to the general rule that records are open to the public pursuant to the current provisions of the Public Records Act.
“(4) To the extent compatible with (3), use terms with common definitions.
“(5) Organize the existing provisions in such a way that similar provisions are located in close proximity to one another.
“(6) Eliminate duplicative provisions.
“(7) Clearly express legislative intent without any change in the substantive provisions . .”
The best example of why and how objective (7) sometimes eludes the Commission is shown in its work on the CPRA’s most controversial and debated provision, the exemption from disclosure for records of law enforcement activities in Government Code section 6254, subdivision (f). The Commission staff found this provision so daunting to both streamline and clarify that it issued a special memorandum on the problem in April (MM18-26.pdf) concluding that the subdivision could be given its own article in the statute, but not much more clarity without being accused by one or the other jealous watchdogs of changing the substance of the law—a lethal taboo.
In drafting the new article. . . the staff felt constrained to take a particularly conservative approach to recodifying Section 6254(f). The five sections in that article would very closely track the existing content, wording, and organization of Section 6254(f). We were reluctant to make even little revisions to improve clarity, because the existing text is hard to follow in places. Taking a particularly conservative approach seemed the only way to avoid generating concerns about the possibility of a substantive change and potentially jeopardizing enactment of whole CPRA recodification. That approach is less than ideal; it would not go as far as we would like to make the substance of Section 6254(f) user-friendly.
The result offers this reworking of the provision:
Government Codes section § 7923.600. Law enforcement exemption
Except as provided in Sections [6254.7] and [6254.13], this division does not require the disclosure of 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 Office of Emergency Services 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. However, state and local law enforcement 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 victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation. However, this section does not require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.
Customer lists provided to a state or local police agency by an alarm or security company at the request of the agency shall be construed to be records subject to this section.
Notwithstanding any other provision of this section, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
(a) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.
(b)(1) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. The name of a victim of any crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this section may be deleted at the request of the victim, or the victim’s parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this subdivision.
(2) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the names and images of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, and of that victim’s immediate family, other than a family member who is charged with a criminal offense arising from the same incident, may be withheld at the victim’s request until the investigation or any subsequent prosecution is complete. For purposes of this section, “immediate family” shall have the same meaning as that provided in paragraph (3) of subdivision (b) of Section 422.4 of the Penal Code.
(c) Subject to the restrictions of Section 841.5 of the Penal Code and this section, the current address of every individual arrested by the agency and the current address of the victim of a crime, if the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code. However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code shall remain confidential. Address information obtained pursuant to this subdivision shall not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury. This subdivision shall not be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this subdivision.
Whether this version is any improvement on the current law is anyone’s guess. Government Code section 6254 (f) now exempts from disclosure
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 Office of Emergency Services 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. However, state and local law enforcement 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 victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation. However, this subdivision does not require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.
Customer lists provided to a state or local police agency by an alarm or security company at the request of the agency shall be construed to be records subject to this subdivision.
Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
(1) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.
(2) (A) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. The name of a victim of any crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim’s parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph.
(B) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the names and images of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, and of that victim’s immediate family, other than a family member who is charged with a criminal offense arising from the same incident, may be withheld at the victim’s request until the investigation or any subsequent prosecution is complete. For purposes of this subdivision, “immediate family” shall have the same meaning as that provided in paragraph (3) of subdivision (b) of Section 422.4 of the Penal Code.
(3) Subject to the restrictions of Section 841.5 of the Penal Code and this subdivision, the current address of every individual arrested by the agency and the current address of the victim of a crime, if the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code. However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code shall remain confidential. Address information obtained pursuant to this paragraph shall not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury. This paragraph shall not be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this paragraph.
CalAware’s guidebook, Public Records and Private Information in California, provides a schematic version:
Exemption Re-formatted for Clarity
What follows is an unpacking, for greater clarity, of this very dense provision, with key words and phrases emphasized for further discussion. The bullets, colons, italics, colored text and underlinedheadings are not part of the statute.
Generally Exempt at the Discretion of the Agency
Records of
complaints to, or
investigations conducted by, or …
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.
Crime Report Details Disclosable to Involved Persons
However, state and local law enforcement 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 victims of an incident, or an authorized representative thereof,
an insurance carrier against which a claim has been or might be made, and
any person suffering bodily injury or property damage or loss, as the result of the incident caused by
arson,
burglary,
fire,
explosion,
larceny,
robbery,
carjacking,
vandalism,
vehicle theft, or
a crime as defined by subdivision (b) of Section 13951,
unless
the disclosure would endanger the safety of a witness or other person involved in the investigation,
or unless
disclosure would endanger the successful completion of the investigation or a relatedinvestigation.
However, nothing in this division shall require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.
Customer lists provided to a state or local police agency by an alarm or security company at the request of the agency shall be construed to be records subject to this subdivision.
Generally Disclosable “Blotter Information” on Arrests, Crimes and Incidents
Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information,
except
to the extent that disclosure of a particular item of information:
would endanger the safety of a person involved in an investigation
or
would endanger the successful completion of the investigation or a related investigation:
Arrests
The full name and occupation of every individual arrested by the agency,
the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight,
the time and date of arrest,
the time and date of booking,
the location of the arrest,
the factual circumstances surrounding the arrest,
the amount of bail set,
the time and manner of release or the location where the individual is currentlybeing held, and
all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.
Complaints, Crimes or Other Incidents
Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded:
the time, date, and location of occurrence,
the time and date of the report,
the name and age of the victim,
the factual circumstances surrounding the crime or incident, and
a general description of any injuries, property, or weapons involved.
The name of a victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285,288.5, 286, 288, 288a, 288.2, 288.3, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9 or 647.6 of the Penal Code * may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor.
When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 273a, 273d,286, 288, 288a, 289, 422.6, 422.7, 422.75, or 646.9 of the Penal Code may be deleted at the request of the victim, or the victim’s parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph.
Addresses of Victims and Those Arrested
Subject to the restrictions of Section 841.5 of the Penal Code and this subdivision, the current address of every individual arrested by the agency and the current address of the victim of a crime, where the requester declares under penalty of perjury that:
the request is made for a scholarly, journalistic, political, or governmental purpose,
or that
the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code.
However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1,265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9 or 647.6 of the Penal Code* shall remain confidential. Address information obtained pursuant to this paragraph may not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury. Nothing in this paragraph shall be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this paragraph.
* Crimes Deemed to Stigmatize the Victim
The offenses deemed to somehow specially degrade or stigmatize their victims, whose names and addresses therefore remain non-disclosable in crime reports under 6254 (f), are defined in the following sections of the Penal Code.
264.1:Aiding/abetting sexual assault
265:Forceable compulsion to marry
266:Enticement of a minor into prostitution
266a:Involuntary involvement in prostitution
266b:Forceable compulsion to cohabit
266c:Sexual assault by fraudulent threat
266e:Purchase of person for prostitution
266f:Sale of person for immoral purposes
266j:Providing minor under 16 for lewd act
267:Abduction of minor under 18 for prostitution
269:Aggravated sexual assault of a child
288:Lewd/lascivious acts on a minor under 14
288a:Oral copulation of a minor
288.2:Exposing minor to harmful matter
288.3:Contacting minor for sexual purposes
288.5:Continuous sexual abuse of a child
288.7:Sexual relations with child 10 or younger
289:Forceable sexual penetration
422.6, 422.7, 422.75: Hate crimes
647.6:Annoying or molesting a minor
