California Public Records Act’s Investigative Materials Exemption Applies To Request For Documents Relating To Investigation Of Parole Supervision Of Accused Kidnapper

In Office of the Inspector General v. The Superior Court of Sacramento County, (— Cal.Rptr.3d —-, Cal.App. 3 Dist., October 6, 2010), a court of appeal considered whether files relating to the investigation of the parole supervision of an accused kidnapper were exempt from disclosure under the California Public Records Act (“CPRA”). The court of appeal held that the files were exempt from disclosure under the investigative materials exemption of the CPRA.


Phillip Garrido was arrested for kidnapping a young girl and holding her hostage for 18 years. Garrido was also accused of repeated sexual assault of the victim. The victim had two children while she was held by Garrido. The victim and the children were kept in makeshift structures on Garrido’s property. For ten years prior to Garrido’s arrest, he was under parole supervision by the California Department of Corrections (“Department”). After Garrido’s arrest, the Office of Inspector General (“OIG”) investigated Department’s supervision of Garrido and concluded Department “failed to adequately classify and supervise Garrido and missed opportunities to discover the existence of his three victims.”

The Sacramento Bee, the San Francisco Chronicle, and KCRA (collectively, “Media”) made a request under the CPRA to the OIG and Department for information relating to Garrido’s parole. For the most part, the OIG and Department denied these requests. The Media filed a lawsuit and asked the superior court to order the OIG and Department to disclose documents relating to Department’s supervision of Garrido. The superior court ordered the OIG and Department to either comply with the Media’s CPRA request or prepare a list of those documents that they thought were privileged and submit the list to the court for in camera review. The OIG petitioned the court of appeal for an extraordinary writ and requested that the appellate court vacate the superior court’s decision.


The court of appeal concluded that the superior court erred in requiring the OIG and Department to either disclose the documents to the Media or submit a list of documents for in camera review. The court of appeal held that “Penal Code section 6131, rather than requiring disclosure as the superior court found, gives the Inspector General complete discretion whether to disclose investigative materials underlying the OIG’s report.”

The OIG is responsible for overseeing the Department. If the OIG conducts an investigation of the Department, Penal Code section 6131 mandates that the OIG must prepare a complete written report that “shall be held as confidential and disclosed in confidence, along with all underlying investigative materials the Inspector General deems appropriate, to the Governor, the Secretary of the Department . . . and the appropriate director, chair, or law enforcement agency.” Section 6131 also directs the Inspector General to prepare and release a public investigative report. Pursuant to section 6131, the Inspector General has the discretion to redact from the public investigative report or otherwise protect information that might hinder a prosecution, to exclude information that is prohibited by law from being disclosed, and to decline to produce any underlying investigative materials.

The Media asserted that section 6131 requires public disclosure of the underlying investigative materials unless there is a showing that disclosure of those materials would either hinder prosecution or violate the law. The court found the Legislature clearly intended that pursuant to “section 6131, investigative materials underlying a report of OIG are to be disclosed only in the discretion of the Inspector General, without a requirement that such materials may be withheld only if disclosure would hinder prosecution or otherwise violate the law.”

The CPRA, at Government Code section 6250, provides “that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” Pursuant to the CPRA, “all public records are subject to disclosure unless the Legislature has specifically provided to the contrary.” Government Code section 6254 provides that disclosure of the following records is not required: “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 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." (Emphasis added.) The court of appeal held that this exemption is applicable to the Media’s request for disclosure of documents from Department and OIG.

The court noted information contained “in public files is exempt as investigatory material only when the prospect of enforcement proceedings is concrete and definite.” The exemption requires that “[t]he prospect of enforcement must appear when the investigatory file is created.” The exemption does not terminate when the investigation is concluded. The court concluded that the prospect of enforcement proceedings was concrete and definite when the OIG launched its investigation into Department’s supervision of Garrido.

The court rejected the Media’s argument that the exemption under the CPRA does not apply because Penal Code section 6131 is the more specific statute that addresses OIG investigative materials and that section 6131 requires disclosure. The court noted it had already rejected the Media’s interpretation of section 6131 and concluded section 6131 and the CPRA are consistent with each other and disclosure is not required pursuant to the CPRA.


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