Tuesday, October 2, 2001
Tape Recordings Related to Police Stop Not Public Records—S.C.
By KENNETH OFGANG, Staff Writer/Appellate Courts
A citizen cannot force the Los Angeles County Sheriff’s Department to make public tape recordings related to the plaintiff’s encounter with its deputies, the state Supreme Court ruled yesterday.
The court unanimously overturned a ruling by Div. Four of this district’s Court of Appeal, which had ordered a new hearing on the California Public Records Act request. by attorneys for Elgin Haynie.
The request was made following a July 1999 traffic stop. The lawyers asked for various documents, including “tape recordings of any radio calls leading up to the Incident, including but not limited to any tape recordings containing any information forming the basis for the decision to detain and/or arrest” Haynie.
A deputy county counsel, citing the confidentiality of personnel and law enforcement records, responded with a written summary indicating that Haynie had been stopped, got into an argument with a deputy, and been handcuffed.
It was ultimately determined that Haynie had nothing to do with the matter that was the cause for the stop, and he was released, the county lawyer said. The lawyer added that documents generated as a result of the stop were privileged and could only be disclosed pursuant to a Pitchess motion.
Haynie sued in federal court, charging that the deputies used excessive force. The defendants recently prevailed on summary judgment, and the case is now before the Ninth U.S. Circuit Court of Appeals.
Haynie’s petition for disclosure of the tape recordings was denied by Los Angeles Superior Court Judge Rodney E. Nelson, who ruled that the CPRA can’t be used for pre-litigation discovery and that the case “is governed by [Government Code Sec.] 6254(f).”
Sec. 6254(f) exempts “[r]ecords of investigations” by law enforcement agencies from the CPRA. The Court of Appeal, in reversing Nelson, held that because there was not yet a concrete possibility of arrest and prosecution at the time the recordings were created, they were not investigative records within the meaning of the statute.
But Justice Marvin Baxter, writing for the high court, said the lower panel’s interpretation of the exemption was too narrow.
“Limiting the section 6254(f) exemption only to records of investigations where the likelihood of enforcement has ripened into something concrete and definite would expose to the public the very sensitive investigative stages of determining whether a crime has been committed or who has committed it,” Baxter wrote.
This would impair “routine” police work, the justice said.
“Complainants and other witnesses whose identities were disclosed might disappear or refuse to cooperate,” he explained. “Suspects, who would be alerted to the investigation, might flee or threaten witnesses. Citizens would be reluctant to report suspicious activity. Evidence might be destroyed.”
Steven J. Renick of Manning & Marder, Kass, Ellrod, Ramirez, who argued the case for the county, said he was confident the court would rule as it did.
“As someone here in the office said, supreme courts generally don’t take cases to affirm them,” Renick told the MetNews. All of the justices, other than the late Stanley Mosk, had voted to grant review, and all, including Third District Court of Appeal Justice Harry Hull, assigned to sit in place of Mosk, concurred in Baxter’s opinion.
Left unresolved by the decision, Renick said, is the issue of whether he still has to pay $1,000 in sanctions imposed by the Court of Appeal. The panel said the attorney, a frequent outside counsel to the county on police issues, had made a meritless argument that Haynie should be sanctioned for making a frivolous CPRA request.
The high court’s order granting review excluded the sanctions issue, which would suggest that the sanctions remain intact, Renick acknowledged yesterday. But because the high court’s order reverses and remands without qualification, he suggested, the lower panel may be forced to revisit the issue.
Renick called the sanctions issue “minor,” but added that he hoped to clear his name and reputation. Sanctions of $1,000 or more must be reported to the State Bar.
Barrett S. Litt, who argued for Haynie before the high court, wasn’t available yesterday for comment.
Copyright 2001, Metropolitan News Company