Metropolitan News-Enterprise


Friday, June 9, 2023


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Court of Appeal:

County Can’t Be Forced to Deny Autopsy Reports to Media

Families of Patrons Slain by Gunman in 2018 Not Entitled to Block Release Through Reverse-CPRA Action—Cody


By a MetNews Staff Writer



People comfort each other in this photo taken on Nov. 7, 2018, near the scene of a mass shooting in Thousand Oaks. The Court of Appeal for this district declared yesterday that families of the 11 patrons of the Borderline Bar & Grill who were fatally shot are not entitled to an order barring the release to news media of autopsy reports.

A court may not order a county to withhold autopsy reports that are sought pursuant to a public records request, the Court of Appeal for this district held yesterday, spurning the assertion by family members of the 11 slain patrons of the 2018 shooting at the Borderline Bar & Grill in Thousand Oaks that privacy rights must prevail.

The request for the reports was made under the California Public Records Act (“CPRA”) by The Associated Press and by the companies that publish, respectively, the Los Angeles Times and the Ventura County Star.

Justice Tari L. Cody of Div. Six authored the opinion, which was not certified for publication. She acted on a “reverse” CPRA action—which seeks to bar release of public records.

Ventura Superior Court Judge Mark S. Borrell correctly denied a preliminary injunction sought by the family members, Cody said, leaving it to the county to decide if it will voluntarily withhold the records.

‘Prohibited by Law’

She wrote:

“CPRA furthers the constitutional aims of open governance and transparency….The public may inspect any public record so long as disclosure is not ‘prohibited by law’ or subject to an exemption listed in CPRA….

“Aims of open governance must on occasion yield to privacy rights. CPRA’s preamble states as much….”

The jurist quoted Government Code §7921.000 as saying:

“In enacting this division, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

County Has Discretion

Cody went on to say:

“Appellants’ authorities hold that an agency may withhold autopsy records when doing so violates the privacy rights of surviving family members. Whether the County ‘may’ withhold the reports here is not disputed. The CPRA grants agencies great discretion to balance access and privacy rights when responding to information requests….This appeal concerns a reverse CPRA action. The County’s balancing of rights is not the subject of review. We consider only whether appellants demonstrate the County is ‘prohibited by law’ from disclosing the reports. They do not.

“California has long considered autopsy reports public records….Statutory exceptions exist, such as those applying to postmortem and autopsy photos ‘taken by or for the coroner,’ which officials may disseminate only in specific circumstances.…The trial court correctly declined to expand these statutory prohibitions by judicial fiat to non-photographic elements of autopsy reports when the legislature has declined to do so as well. The common law privacy rights invoked by appellants may properly factor into the County’s decision to withhold the reports in whole or in part, but do not, as appellants insist, nullify the access rights enshrined in our state’s constitution and CPRA.”

The case is Housley v. Los Angeles Times Communications, B322230.

Reason for Requests

Explaining why the media defendants want autopsy reports, the respondents’ brief on appeal, signed by La Verne attorney Kelly A. Aviles, sets forth the breadth of what is being sought:

“The shooting at the Borderline is one of many mass shootings that have plagued this country in recent years. These shootings have fueled debate on how to best prevent and respond to such attacks. The public has a strong interest in fully evaluating how these incidents unfold and scrutinizing the investigations that follow.

“As part of their newsgathering and reporting, the Media made public records requests for records about the Borderline shooting, including 911 recordings, dispatch calls and logs, body and dash camera footage, and information regarding the incident….The requests sought records and information that would improve the press’ and the public’s understanding of how the shooting unfolded, and how emergency personnel responded to the critical incidents….”

The 11 autopsy reports—which are all that are in issue in the present appeal from the denial of the reverse CPRA suit—were part of the media parties’ affirmative CPRA request.

Prior Decision

Yesterday’s decision comes in Housley II. Div. Six on April 6, 2022, reversed an order by Ventura Superior Court Judge Henry Walsh granting a preliminary injunction, barring release of the reports, on the ground that a bill was pending in the Legislature which, if passed, could affect the outcome.

Then-Justice Steven Z. Perren, now retired, wrote:

“We hold that while a trial court may consider a prospective change of law under narrow circumstances, such circumstances were not present here. The court erred when it issued the preliminary injunction without first assessing the probability of respondent families prevailing at trial under existing law. We decline, however, to usurp the province of the trial court and consider the propriety of the injunction sought by respondents. We remand the cause to the trial court for hearing.”

On remand, the family members renewed their motion which Borrell granted, prompting the appeal resolved yesterday. Div. Six on Sept. 14 ordered that, during pendency of the appeal, the records not be released.

That order, yesterday’s opinion sets forth, “will dissolve upon issuance of the remittitur” on Aug. 8.

In all, 13 persons died as the result of events on the night of Nov. 7, 2018 in the Borderline Bar & Grill. In addition to the 11 patrons, Sergeant Ron Helus of the Ventura County Sheriff’s Department died of bullet wounds and the shooter, Ian Long, took his own life.


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