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County Could Withhold Names Of Those Arrested Eleven Months Prior

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: May 03, 2022

On February 15, 2021, Alisha Kinney asked the County of Kern for “the names of every individual arrested for DUI by the Kern County Sheriff’s Department from March 1, 2020, through April 1, 2020.” Kinney made this request pursuant to the California Public Records Act (CPRA).

The County responded by disclosing a report that documented the three DUI arrests the Kern County Sheriff’s Department made during the timeframe Kinney specified. But, the County redacted the names of the three arrestees from the report. The report did list a case number, date and time of arrest, the offense, the offense statute, and the case status for each arrest.

Kinney asked the trial court to compel the County to produce the arrestee’s names. The trial court declined and Kinney appealed. Kinney argued that she was entitled to the names of the arrested individuals because of Government Code 6254(f)(1), which states:

“Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, . . . :

(1) The full name and occupation of every individual arrested by the agency, . . . .” (emphasis added)

In response, the County argued that the holding in County of Los Angeles v. Superior Court (Kusar) (1993) 18 Cal.App.4th 588, allowed it to withhold records that do not pertain to contemporaneous police activity. The County relied on the following language from Kusar: “the records to be disclosed under section 6254, subdivision (f)(1) and (2), are limited to current information and records . . . which pertain to contemporaneous police activity.” Implicit in the County’s argument was that the 11-month-old records Kinney wanted could not possibly pertain to “contemporaneous police activity.”

The California Court of Appeal examined the rationale behind the Kusar holding and the legislative intent of Government Code Section 6254(f). The Court found that Section 6254(f) was designed to ensure that secret arrests of citizens and clandestine police activity were curtailed. The Court said the legislature wanted to allow public access to information about recent arrests to guarantee that individuals would not be detained in secret. It was for that reason that the Kusar case held that “records” under Section 6254(f) are “limited to current information and records of the matters described in the statute and which pertain to contemporaneous police activity.”

The Court of Appeal concluded that, because the requested records were 11 months old, they were not current information nor did they pertain to contemporaneous activity. The arrestees’ names were not disclosable under the CPRA, and the Court rejected Kinney’s appeal.

Kinney v. Superior Court of Kern County, et al, 2022 WL 1043448.

Note:

This case is a reminder to public agencies that, despite the broad language of the CPRA, some information can be withheld.  The courts have interpreted Government Code Section 6254(f)(1) to allow agencies to withhold records that do not pertain to contemporaneous police activity. Each CPRA request must be analyzed to determine whether the requested records fit the contemporaneousness requirement.

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