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HomeMy WebLinkAbout9BArgusCourierPart2m e y e r s I n a v e riback silver & wilson Eric W. Danly professiona►_law corporation Attorney at Law 707.545.8009 'Via Facsimile: (707)521-5436 May 18, 2006 Mr. Jim Sweeney Metro Team Leader The Press Democrat P.O. Box 910 Santa Rosa, CA 95402 Re: IReouest for Public Records Dated May 5 2006 Dear Mr. Sweeney: We represent the City of Petaluma. This letter concerns your written request dated May 5, 2006 and received by the City on May 8, 2006, pursuant to the Califomia Public Records Act CCPRA"). The letter requests portions of twenty-one (21) Petaluma Police Department records, records nos, 06-0002043, 06- 0002044,06.0001868,06.0001427,06-0001369,06-0001374,06.6001216,06-0001293,06.0001300,06- 0001147, 06-0001108, 06-0001087, 06-0001044, 06-0001016, 06-0001019, 06-0001026, 06-000880, 06- 000776, 06.000774, 06-000799, and 06-0002061. Your request seeks the following information from the specified records: the time, substance and location of the complaint or request for service and the time and nature of the department's response in each case, as well as the age of any victims, the factual circumstances surrounding the crime or incident, and a general description of any Injuries, property or weapons involved. . Our client the City received a similar, although less detailed request concerning precisely the same records from Chris Samson, Managing Editor of the Argus Courier, on March 31, 2006. On May 17, 2006; the City also received a broader request concerning precisely the same records from David. McCraw, Senior Counsel for the New York Times. We responded on behalf of the City to the Argus Courier request on April 10, 2006. Because we understand the Argus Courier and the Press Democrat are owned in whole or in part by the New York Times, and because these requests appear to be coordinated, we are copying Messrs. Samson and McCraw on this letter. We have also attached a copy of our April 10 letter to Mr. Samson. Our April 10 response to Mr, Samson is of course germane to your request dated May 5, 2006, since the requests apply to the same records. In light of the more detailed nature of your request dated May 5, and the shared interest of the New York Times and its affiliated news papers in the records first requested March 31, 2006, we offer the following response, restating and further elaborating on our April 10, 2006 reply to Mr. Samson. Therefore, please be advised that any non-exempt records or portions of records responsive to your request will be made available upon payment of the direct cost of duplication. However, please also be advised, as discussed further below, that due to the extremely sensitive nature of the requested records, and numerous exemptions from and prohibitions against disclosure that apply to such records, portions of non-exempt records that remain following redaction may be de-minimus, and the utility of disclosing such 401 Menaacino Avenue, Suite too I Santa Rosa, California 95401 1 te1707.545.8009 I fax MMAS.6617 I www.n eyersnave.com OAKLAH • SAN LEANDRO • SANTA ROSA • SACRAMENTO - SAN FRANCISCO • LOS ANGELES vl `E' Mr. Jim Sweeny, The Press Democrat Re: Request for Public Records Dated May 5, 2006 May 18, 2006 Page 2 non-exempt information may be minimal when weighed against the burden of segregating such information. Accordingly, the public interest in non -disclosure of such records may be clearly outweighed by the public interest in disclosure, and Section 6255 of the CPRA may apply to exempt the records. (See, ACLU v. Deukmejian (1982) 32 Cal.3d 440.) The records covered by your request include 17 cases of alleged child abuse, i case of alleged domestic violence, 2 cases of alleged elder abuse, and 1 detention for psychiatric examination. As you may imagine, law enforcement records involving such matters are among the most sensitive maintained by police departments. In addition to statutory provisions that prohibit the disclosure of such records, discussed further below, such records implicate victim privacy rights protected under Article I, Section 1 of the California Constitution. Unauthorized release of such information may be an invasion of. protected. privacy rights, and a basis of liability for the City. (See, Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1; Teamsters Local 856 v. Priceless, LLC (2003)12 Cal.App. 4th 1500; Alarcon v. Murphy (1988) 201 Cal.App.3d 1.) In addition, disclosure of some or all of the requested information is prohibited or exempted in accordance .with the following: Regarding Police Department records of cases of alleged child abuse, California Penal Code Section 11167.5 prohibits disclosure of reports submitted by mandatory reporters of alleged abuse, and investigative reports resulting in a summary report being filed with the Department of Justice in accordance with California Penal Code Section 11169. Section 11167.5 requires that such information be kept . confidential and only permits disclosurelo those individuals and agencies specified in subdivision (b) of Penal Code Section 11167.5. The Press Democrat is not among the individuals or agencies identified in subdivision (b) of Penal Code Section 11167.5. Furthermore, as you may be aware, Penal Code Section 11167.5(a) provides that'Jajny violation of the confidentiality provided by this article is a misdemeanor punishable by imprisonment in a county jail not to exceed six months, by a fine of five hundred ($500), or by both... ° Therefore, not only is disclosure of information protected under Section 11167.5 prohibited, disclosure will subject the City and its officials to criminal liability. Accordingly, records sought whose disclosure is prohibited under Penal Code Section 11167.5 are exempt from disclosure under subdivision (k) of Section 6254 of the CPRA, which exempts from disclosure records whose disclosure is prohibited or exempt pursuant to federal or state law. To the extent such exempt information is covered by your request, your request is denied. Also, some or all of the records involving alleged child abuse reports may be confidential under California Welfare and Institutions Code Section 827 due to their inclusion in a juvenile case file. The disclosure of such files is only permissible to those persons and agencies identified in California Welfare and Institutions Code Section 827(a)(1)(A)-(0). The Press Democrat is not among the individuals or agencies identified in subdivision (a)(1). Additionally, Rule 10.15 of the Sonoma County Superior Court Rules is applicable to any case subject to a juvenile court proceeding. Any records subject to Rule 10.15 may not released without a court order. Accordingly, records sought that are confidential under Welfare and Institutions Code Section 827 and/or Rule 10.15 are exempt from disclosure under subdivision (k) of Section 6254 of the CPRA. To the extent such exempt information is covered by your request, your request is denied. Mr. Jim Sweeny, The Press Democrat Re: Request for Public Records Dated May 5, 2006 May 18, 2006 Page 3 Regarding police department records concerning detentions for psychiatric evaluation under California Welfare and Institutions Code Section 5150, Welfare and Institutions Code Section 5328 provides that all information and records obtained in the course of providing services under specified provisions, including Section 5150, to either voluntary or involuntary recipients, are confidential, and may only be disclosed to the individuals and agencies, and for the purposes specified in subdivisions (a){x). The Press Democrat is not among of the individuals or agencies, identified in subdivisions (a)-(x). Further, Welfare and Institutions Code Section 5330 grants individuals whose reports have been released in violation of Section 5328 a civil cause of action for damages against the individual who released the report. Therefore, not only is disclosure of information protected under Section 5328 prohibited, disclosure will subject the City and its officials to civil liability. Accordingly, records sought whose disclosure is prohibited under Welfare and Institutions Code Section 5328 are exempt from disclosure under subdivision (k) of Section 6254 of the CPRA. To the extent such exempt information is covered by your request, your request Is denied. Regarding police department records conceming cases of alleged elder abuse, California Welfare and Institutions Code Section 15633 provides that reports of alleged elder abuse under Welfare and Institutions Code Section 15630 are confidential and may only be disclosed as provided in subdivision (b) of Section 15633. The Press Democrat is not among of the persons or agencies identified in Section 15633, subdivision (b). Further, under Section 15633(a), violations of Section 15633 are misdemeanors punishable by up to 6 months in jail, a fine of $500, or, both. Therefore, not only is disclosure of information protected under Section 15633 prohibited, disclosure will subject the City and its officials to criminal liability. Accordingly, records sought whose disclosure is prohibited under Welfare and Institutions Code Section 15633 are exempt under CPRA Section 6254(k). To the extent such exempt information is covered by your request, your request is denied. In addition to the express prohibitions against disclosure addressed above, the exempt information concerning records of alleged child abuse, psychiatric detentions, and alleged elder, abuse is also exempt from disclosure under California Government Code Section 6255, which provides that records may be. withheld from disclosure when, based on the facts of the particular case, `the public interest served by not disclosing the records clearly outweighs the public interest served by disclosure of the record." The Legislature has effectively already applied this balancing test by enacting the statutes prohibiting disclosure discussed above. Your May 5, 2006 letter refers to Proposition 59, which was approved by voters in November 2004, and amended Article 1, Section 3 of the California Constitution. In the letter, you request that we consider our response in view of Proposition 59, and that it may modify or overturn authorities on which we have relied in the past. As you.know, Proposition 59 enacted in the California Constitution protection for the publids right of access to California public agency meetings and records. However, the savings provision contained in Article I, Section 3, paragraph (3) provides that nothing in the amendment affects any statute, rule or other authority that protects the right to privacy. All of the prohibitions against and exemptions from disclosure addressed above protect privacy rights. Therefore, by its own terms, Proposition 59 has no effect on the authorities described above protecting the privacy of child and elder abuse victims, and psychiatric evaluation detainees. Mr. Jim Sweeney, The Press Democrat Re: Request for Public Records Dated May 5, 2006 May 18, 2006 Page 4 Presently, our office is working with Petaluma Police Department staff on the painstaking process of reviewing the entire contents of all the records addressed in your request, and determining what, if any, portions of the records identified in your request may be subject to disclosure after redaction of the portions whose disclosure is prohibited and exempted as described above. In particular, we are determining what portions of the requested information that Is required to be disclosed pursuant to CPRA Section 6254(f), paragraphs (1), (2), and (3), and that will not threaten the successful completion of an investigation, remains following redaction of prohibited and exempt information pursuant to the Penal Code, the Welfare and Institutions Code, and Sonoma County Court Rules. To the extent a meaningful amount of such information remains following redaction in light of the burden of redacting the records, City staff will contact you to make arrangements for payment of the duplication costs and obtaining the information. Staff will similarly contact Mr. Samson and Mr. McCraw. However, a separate reply on behalf of the City will be sent to Mr. McCraw in response to his request. The City duplication cost is $.15 per page. In accordance with Section 6253(c) of the CPRA, we estimate that any non-exempt records or.portions of records responsive to your request will be available by or before Monday, May 29. l: am responsible for this determination concerning your records request in my capacity as City Attorney of the City of Petaluma, in consultation with authorized representatives of our client the City. If you have any questions, or are able to refer me to controlling legal authority that supports a different result, please contact me. . Ve ly yours, Eric W. Danly, City Attorney City of Petaluma c: Mike Bierman, City Manager Steve Hood, Police Chief Honorable Mayor and City Council Members Chris Samson, Argus Courier. David McCraw, New York Times 83mi 1 5-8-06 ARGUS-COURIER REQUEST -----Original Message ----- From: ybieberich@arguscourier.com[mailto:.ybieberich@arguscourier. com] Sent: Monday, May 08, 2006 5:08 PM To: Giant, Sue Cc:. jburns@arguscourier.com; csamsoa@argus courier. com Subject: police log For incidents: 3018,'3019, 2705, 2586, 2493, 2509, 2515, 2372, 2409 .2410, 229 2301, 2169,2167, 1821, 1868, 2001;- 95, 2043, 2044, 2312, 2122, 2061, 066 0799, 2299- we're requesting a description and circumstances'of the incidents,.inclu ' q the ge .and age of the victims, the specific nature Iof the alleged crime; the 11ocation of the crime,including whether it was at 4 school or day care facility, and the relationship of the suspect to* the victim.. _ -If 'you are not ableto-provide -this information, we would like to know the specific . reason why it.was determined that this information cannot be disclosed. 1 t� \ me y e r s Ina v e riback silver & wilson Eric W,oan[y professional law corporation Attorney at Law707.545.8009 Via Facsimile 707-776-8482 May 30, 2006 Ms. Yovanna Biebedch_ Petaluma Argus-Courier 1304 Southpoint Blvd., Suite 101 Petaluma, CA 94954 Re: Request for Public Records Dated May 8, 2006 and May 18, 2006 Dear Ms. Bieberich: As you know, we represent the City of Petaluma. In the interest of maximizing limited public resources while effectively responding to the ongoing, voluminous requests received by our office from your organization, this letter responds to your email request dated May 8, 2006 and your two email requests dated May 18, 2006. Oh May 8, 2006, the City received an email request pursuant to the California Public Records Act ("CPRA") requesting portions of twenty-seven (27) Petaluma Police Department records, records nos. 06-0.003018, 06.0003019, 06-0002705, 06-0002572, 06-0002586, 06.0002493, 06-0002509, 06-0002515, 06-0002372, 06-0002409, 06-0002410, 06-0002296, 06-0002301, 06.00021.69, 06.0002167, 06-0001821, 06-0001868, 06-0002001, 06-0001995, 06-0002043, 06.0002044, 0.6-0002312, 06.0002122, 06-0002061, 06-0000664, 06-0000799, and 06-0002299. Your May 8 request seeks the following information: a description and circumstances of the incident, including the gender and age of the victims; the specific nature of the alleged crime; the location of the crime, including whether it was at a school or day care facility; and the relationship of the suspect to the victim. In a letter to you dated May 17, 2006, we extended the time for responding to the May 8 request by an additional fourteen (14) days pursuant to California Government Code section 6253(c). Accordingly, we provided that a response would be available by Thursday, June 1, 2006. This letter is the substantive response on behalf of the City to your May 8 request. As you are no doubt aware, Chris Samson, Managing Editor of the Petaluma Argus-Courier, requested similar information for records nos. 06-0001868, 06-0002043, 06.0002044, and 06-0000799, and 06- 0002061 on March 31, 2006. That request sought details on the type of abuse and age and gender of the victim. The City responded to the March 31 request on April 10, 2006. Therefore; because the records specified in the March 31 request are repeated in your May 8 request, please refer to our reply dated April 10, 2006, concerning such records. Additionally, please refer to our reply fetters to The Press Democrat 401 Mendocino Avenue, Suite 100 1 Santa Rosa, California 95401 1 tel 707,545.9009 1 fax 707.545.6617 1 www.meyemnave.com 0A-K-L-A-N-O- S-A-N-L-HI-Ni)-R O--S A N TA-ItO-SA%SfifiCAA M-ENTO . yA N FRANKt S G 0- COS A N U EL ES tJ Yovanna Bieberich Re: Request for Public Records Dated May 8, 2006 and May 18, 2006 May 30, 2006 Page 2 (dated May 18, 2006) and The New York Times (dated May 25, 2006) concerning precisely the same records and the availability of any non-exempt portions of such records. On May 18, 2006, the City received another email request from you pursuant to the California Public Records Act ("CPRA") requesting portions of thirty-two (32) Petaluma Police Department records, records nos..06-0003295, 06-0003171, 06-0003074, 06-0003079, 06-0003189, 06-0003018, 06-0003019, O6- 0002705, 06-0002572, 06-0002586, 06-0002493, 06.0002509, 06-0002515, 06-0002372, 06-0002409, 06- 0002410, 06-0002296, 06-0002301, 06-0002169, 06-0002167, 06-0001821, 06-0001868, O6-0002001, 06- 0001995, 06-0002043, 06-0002044, 06.0002312, 06.0002122, 06-0002061, 06-M0664, 06.0060799, and 06-2299. The May 18 request seeks the fallowing: a description and circumstances of the incident, including the gender and age of the victims; the specific nature of the alleged crime; the location of the crime, including whether it was at a school, day care facility, nursing home, or business; and, the relationship of the suspect to the victim. The May 18 request seeks initially the same information for records nos. 06-0003018, 06-0003019, 06-0002705, 06-0002572, 06-0002586, 06-0002493, 06.0002509, 06.0002515,06-0002372,06-0002409,06-0002410;-06-0002296,06-0002301,06-0002169,-06-0002187, 06-0001821, 06-0001868, 06.0002001; 06-0001995,-06.0002043, 06-0002044; 06-0002312, 06-0002122, - - - 06-0002061, 06000664, 06-0000799, and 06-0002299 that was sought in your May 8 request (and repeated in your May 18 request). Also, your May 16, 2006 email requested information for records nos. 06-0003295, 06-0003171, 06- 0003074, 06-0003079, and 06.0003189. Records nos. 06-0003171, 06-0003074, 06-0003079, and 06-0003189, which are covered by the May 18 request, were also included in a request dated May 16, 2006. Your May 16, 2006 request sought the following: a description and circumstances of the incidents, including the gender and age of the victims; the specific nature of the alleged crime; the location of the crime, including whether it was at a school, day care facility, elder care facility, or other public place,, and the relationship of the suspect to the victim. The City responded to that request on May 25, 2006, Our May 25 letter noted that you requested similar information for records nos. 06-0003074 and 06-0003079 on May 11, 2006 and that the City responded to the May 11 request on May 22, 2006, and referred you to our May 22, 2006 letter regarding the extent such records or portions of them are non-exempt and when such records would be made available for your review. Finally, you submitted.a second requestto the City on May 18, 2006 which included a request for police .records nos. 06-0003260 and 06-0003295. This request asked for jQncidents occurring May 15-16" and referred to the assigned police case number withno specific request as to the type of information sought. The request concerning police record no. 06-0003260 is a new request. However, the request for police record 06.0003295 repeats your other May 18, 2006 request. Therefore, based on the above, please be advised that this letter responds to"your request for record nos. 06-0003018, 06-0003019, 06-0002705, 06-0002572, 06-0002586, 06.0002493, 06-0002509, 06-0002515, Yovanna Bieberich Re: Request for Public Records Dated May 8, 2006 and May 18, 2006 May 30, 2006 Page 3 06-0002372, 06-0002409, 06-0002410, 06-0002296, 06-0002301, 06-0002169, 06-0002167, 06-0001821, 06-0002001, 06-0001995, 06-0002312, 06-00021", 06-0000664, 06-0002299, 06.0003260, and 06- 0003295, which have not been previously requested. The City's response concerning records nos. 06- 0001868, 06-0002043, 06-0002044, 06-0000799, and 06-0002061 is addressed in our April 10, 2006 letter to your organization, and our May 18, 2006 letter to The Press Democratand May 25, 2006 letter to The New York Times. The City's response concerning records nos. 06-0003171, 06-0003074, 06-0003079, and 06.0003189 is addressed in our May 25, 2006 response letter to your organization. Please be advised that record nos. 06.OM64 and 06-0002299 are voided reports because a report has not been completed by the Department. A report is voided when, for example, the Department has determined that the incident has already been reported or the report serves as a supplement to an existing report._ Concerning record nos. 06-0003018, 06-0003019, 06-0002705, 06-0002572, 06-0002586, 06- 0002493, 06.0002509, 06-0002515, 06-0002372, 06-0002409, 06-0002410, 06-0002296, 06-0002301, 06- 0002169, 06.0002167, 06-0001821, 06-0602001, 06-0001995, 06-000231Z 06-0002122, 06-0003260, and 06-0003295, which have not been previously requested, please be advised that any non-exempt records or portions of records responsive to your request will be made available upon payment of the direct cost of duplication. However, please also be advised, as further discussed below, that due to the extremely sensitive nature of the requested records, and numerous exemptions from and prohibitions against disclosure that apply to such records, portions of non-exempt records that remain following redaction may be de-minimus, and the utility of disclosing such non-exempt information may be minimal when weighed against the burden of segregating such information. Accordingly, the public interest in non -disclosure of such records may clearly outweigh the public interest in disclosure, and Section 6255 of the CPRA may apply to exempt the records from disclosure. (See, ACLU v. Deutanejian (1982) 32 Cal.3d 440.) The. records covered by your request include twenty (20)cases.of.alleged child abuse and two (2) cases of alleged sexual battery. As you may imagine, law enforcement records involving such matters are among the most sensitive maintained by police departments. In addition to the statutory provisions that prohibit the disclosure of such records, discussed further below, such records implicate victim privacy rights protected under Article I, Section I of the California Constitution. Unauthorized release of. such Information may be an invasion of protected privacy rights, and a basis of liability for the city. (See, Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1; Teamsters Local856 v. Priceless, LLC (2003)12 Cal.AppAth 1500; Alarcon v. Murphy(1988) 201 Cal.App.3d 1.) In addition, disclosure of some or all of the requested information is prohibited or exempted in accordance with the following: Regarding Police Department records of alleged child abuse, California Penal Code Section 11167.5 prohibits disclosure of reports submitted by mandatory reporters of alleged, abuse, and investigative reports resulting in a summary report being filed with the Department of Justice in accordance with California Penal Code Section 11169. Section 11167.5 requires that such information be kept confidential and only permits Yovanna Bieberich Re: Request for Public Records Dated May 8, 2006 and May 18, 2006 May 30, 2006 Page 4 disclosure to those individuals and agencies specified in subdivision (b) of Penal Code Section 11167.5. Furthermore, as you maybe aware, Penal Code Section 11167.5(a) provides that'gajny violation of the confidentiality provided by this article is a misdemeanor punishable by imprisonment in a county jail not to exceed six months, by a fine of five hundred ($500), or by both...." Therefore, not only is disclosure of information protected under Section 11167.5 prohibited, disclosure will subject the City and its. officials to criminal liability. Accordingly, records sought whose disclosure is prohibited under Penal Code Section 11167.5 are exempt from disclosure under subdivision (k) of Section 6254 of the CPRA, which exempts from disclosure records whose disclosure is prohibited or exempt pursuant to federal or state law. To the extent such exempt information is covered by your request, your request is denied. Regarding Police Department records of alleged sexual battery, in accordance with California Government Code Sections 6254(f)(2) and 6254(f)(3), non-exempt information required to be disclosed pursuant to such provisions and that is responsive to your request shall be disclosed. In addition to the express prohibitions against and/or exemptions from -disclosure addressed above, the - - exempt information concerning records of alleged child abuse and sexual battery is also exempt from disclosure under California Government Code Section 6255, which provides that records may be withheld from disclosure when, based on the facts of the particular case, 'the public interest served by not disclosing the records clearly outweighs the public interest served by disclosure of the record ° The Legislature has effectively already applied this balancing test by enacting the statutes prohibiting and/or exempting disclosure discussed above. Presently, our office is working with Petaluma Police Department staff on the painstaking process of reviewing the entire contents-of4i therecordsaddressed-in this -request, and determining what, if any, portions of the records identified in your request may be subject to disclosure after redaction of the portions whose disclosure is prohibited and exempted as described above. In particular, we are determining what portions of the requested information that is required to be disclosed pursuant to CPRA Section 6254(f), paragraphs (2) and (3), and that will not threaten the successful completion of an investigation, remains following redaction of prohibited and exempt information pursuant to the Penal Code. To the extent a meaningful amount of such information remains followinpedaction in light of the burden of redacting the records, City staff will contact you to make arrangements for payment of the duplication costs and obtaining the information. The City duplication cost is $0.15 per page. In accordance with Section 6253(c) of the CPRA, we estimate that any non-exempt records or portions of records responsive to your request will be available by or before Tuesday, June 13; 2006: Yovanna Bieberich he: Request for Public Records Dated May 8, 2006 and May 18, 2006 May 30, 2006 Page 5 .I am responsible for this determination concerning your records request in my capacity as City Attorney of the City of Petaluma, in consultation with authorized representatives of our client the City. If you have any questions, or are able to refer me to controlling legal authority that supports a different result, please contact me. Very truly yours, Eric W. Danl , City Attorney City of Petaluma cc: Mike Bierman, City Manager Steve Hood, Police Chief Honorable Mayor and City Council Members bw No Text 5-1 1 -06 ARGUS-COURIER REQUEST (21 ---Original Message— From: ybieberich@arguscourier.com[mailto:ybieberich@arguscomier.com] Sent: Thursday, May 11, 2006 9:46 AM To: Grant, Sue Cc: abums@arguscouner.com; csamson@arguscourier.com Subject: police log For incidents:3074 and 3079 were requesting a description and circumstances of the incidents, including the gender and ago of the victims, the Specific nature ofthe alleged crime, the location of the crime, including whether it was at a school or day care facility, and the relationship of the suspect to the victim. If you are not able to provide this information, we would like to know the specific reason why it was determined that this information cannot be disclosed -Yovanna Bieberich m e y e r s I n a v e riback silver & wilson professional law corporation May 22, 2006 Yovanna Bieberich Petaluma Argus-Courier 1304 Southpoint Blvd., Suite 101 Petaluma; CA 94954 Re: Request for Public Records Dated Mav 8, 2006 Dear Ms. Bieberich: Eric W. Danly Attorney at Law 707.54.5.8009 We represent the City of Petaluma. This letter concerns your email request dated May 11, 2006 and received by the City on that same day, pursuant to the California Public Records Act CCPFW). The email requests portions of two (2) Petaluma Police Department records; records nos: 06-0003074 and 06- 0003074. Your request seeks the following information from the specified records: a description and circumstances of the incidents, including the gender and age of the victims; the•speci is nature of the alleged crime; the location of the crime, including whether it was a school or day care facility, and, the relationship of the suspect to the victim. Please be advised that any non-exempt records or portions of records responsive to your request will be made available upon payment of the direct cost of duplication. However, please also be advised, as further discussed below, that due to the extremely sensitive nature of. the requested records, and numerous exemptions from and prohibitions against disclosure that apply to such records; portions of non-exempt records that remain following redaction may be de-minimus, and the utility of disclosing such non-exempt information may be minimal when weighed against the burden of segregating such information. Accordingly, the public interest in non -disclosure of such records may clearly outweigh the public interest in disclosure, and Section 6255 of the CPRA may apply to exempt the records. (See, ACLU v. Deukrieftri (1982) 32 Cal.3d 440.) The records covered by your request include one case of alleged sexual battery and one case of child abuse. As you may imagine, law enforcement records involving such matters are among the most sensitive maintained by police departments. In addition to the statutory provisions that prohibit the disclosure of such records, discussed further below, such records implicate victim privacy rights protected under Article 1, Section I of the California Constitution. Unauthorized release of such information may be an invasion of protected privacy rights, and a basis of liability for the city. (See, Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1; Teamsters Local856 v. Priceless, LLC (2003),12 Cal.App.4th 1500; Alarcon v. Murphy (1988) 201 Cal.App.3d 1.) 401 Mendocino Avenue, Suite 100 I Santa Rosa, California 95401 1 tat 7117.545.8909 1 tox 707.545.6017 I OAKLAND • SAN LEANDRO • SANTA ROSA • SACRAMENTO • SAN FRANCISCO • LOS ANGELES Yovanna Bieberich Petaluma Argus-Courier Re: Request for Public Records May 22, 2006 Page 2 . In addition, disclosure of some or all of the requested information is prohibited or exempted in accordance with the following: Regarding Police Department records of alleged child abuse, California Penal Code Section 11167,5 prohibits disclosure of reports submitted by mandatory reporters of alleged abuse, and investigative reports resulting in a summary. _report beingjitedwith_le.Department of.Justice_in accordance with Califomia-Penal Code Section 11169. 'Section 11167.5 requires that such information be kept confidential and only permits disclosure to those individuals and agencies specified in subdivision (b) of Penal Code Section 11167.5. Furthermore, as you maybe aware, Penal Code Section 11167.5(a) provides that ufajny violation of the confidentiality provided by this article is a misdemeanor punishable by imprisonment in a county jail not to exceed six months, by a fine of five hundred ($500), or by both...." Therefore, not only is disclosure of information protected under Section 11167.5 prohibited, disclosure will subject the City and its officials to criminal liability. Accordingly, records sought whose disclosure is prohibited under Penal Code Section 11167.5 are exempt from disclosure under subdivision (k) of Section 6254 of the CPRA, which exempts from disclosure records whose disclosure is prohibited or exempt pursuant to federal or state law. To the extent such exempt information is covered by your request, your request is denied. -Regarding Police Department records of alleged sexual battery, in accordance with California Government Code Sections 6254(f)(2) and 6254(0(3), non-exempt information required to be disclosed pursuant to such provisions and that is responsive to your request shall be disclosed. In addition to the express prohibitions against and/or exemptions from disclosure addressed above, the exempt information concerning records of alleged child abuse and sexual battery is also exempt from disclosure under California Government Code Section 6255, which provides that records maybe withheld from disclosure when, based on the facts of the particular case, °the public interest served by not disclosing the records clearly outweighs the public interest served by disclosure of the record." The Legislature has effectively already applied this balancing test by enacting the statutes prohibiting and/or exempting disclosure discussedabove. Presently, our office is working with Petaluma Police Department staff on the painstaking process of reviewing, the entire contents of all the records addressed in your request, and determining what, if any, portions of the records identified in your request may be subject to disclosure after redaction of the portions whose disclosure is prohibited and exempted as described above. The City duplication cost is $0.15 per page. In accordance with Section 6253(c) of the CPRA, we estimate that any non-exempt records or portions of records responsive to your request will be available by or before Wednesday, May 31. Yovanna Bieberich Petaluma Argus-Courier Re: Request for Public Records May 22, 2006 Page 3 am responsible for this determination concerning your records request in my capacity as City Attomey of the City of Petaluma, in consultation with authorized representatives of our client the City. If you have any questions, or are able to refer me to controlling legal authority that supports a different result, please contact me. Ve truty yours Eric W. Danly, City Attorney City of Petaluma 830717 cc: Steve Hood, Police Chief 5-12-06 NEW YORK TIMES May 12, 2006 VIA FEDERAL EXPRESS Ms. Sue Grant .Records Supervisor Petaluma Police Department 969 Petaluma Blvd_ N_ Petaluma, Calif. 94952-1921 t1ieSPon� ,. Queue The NewYorkTimes Company RECEIVED MAY 15 2006 Re: Public Records Act Request Dear Ms. Grant: Aj4y 2006 2ECI;tYEB City Attorney David McCraw Senior Counsel 229 West 43rd Street . New Yorlc, NY 10035 tel 212.555-4031 fax 2125554634 mccraw@nytimes.com On behalf of The New York Times, and pursuant to Cal. Gov't Code §'6250 et seq., I request the Petaluma Police Department's records for the following cases: 2043, 2044, 1868, 1427, 1369,1374, 1216, 1293, 1300,1147, 1108, 1087, 1044, 1016, 1019,1026, 980, 776, 774, 799 and 2061. The numbers listed refer to the numbers assigned to the cases in the Petaluma Police Department log. To the extent that any of the records include both public and non-public information, I request that they be produced in redacted form and that the Department provide an explanation of the legal basis for withholding any particular information or document. As you know, under Proposition 59 amending the state Constitution agencies are required to narrowly construe exemptions to the Public Records Act. I would ask that you expedite consideration of this request. Please calf me at (212) 556- 4031 if any part of the request requires clarification. - Thank you for your consideration. Sincerely, David E. McCraw m e y e r.s I n a v e riback silver & wilson professional low corporation Via Facsimile: (212) 556.4634 May 25,2006 Mr. David E. McCraw Senior Counsel The New York Times Company 229 West 43rd Street New York, NY 10036 Re: Reeuest for Public Records Dated May 12:2006 Dear Mr. McGraw: Eric W. Danly Attorney at Law 707.545.8009 We represent the City of Petaluma. This letter concerns your written request dated May 12, 2006 and received by the City on May 15, 2006, pursuant to the California Public Records Act CCPRA"). The letter requests portions of twenty-one (21) Petaluma Police Department records, records nos. 06-0002043, 06- 0002044, 06-0001868, 06-0001427, 06-0001369, 06-0001374, 06-0001216, 06-0001293, 06-0001300, 06- 0001147, 06-0001108, 06-0001087, 06-0001044, 06-0001016, 06-0001019, 06-0001026, 06-000880, 06- 000776, 06-000774, 06-000799, and 06.0002061. Your request seeks all information in the aforementioned records which is not otherwise exempt from disclosure under the CPRA or applicable state or federal law. Our client the City received similar requests concerning the same records from Chris Samson, Managing Editor of the Argus Courier, on March 31, 2006 and from Jim Sweeney, Metro Team Leader of The Press Democrat, on May 8, 2006. We responded on behalf of the City to the Argus Courier request on April 10, 2006 and to The Press Democrat request on May 18, 2006. Because we understand the Argus Courier and the Press Democrat are owned in whole or in part by the New York Times, and because these requests appear to be coordinated, we are copying Messrs. Samson and Sweeney on this letter. We have also attached a copy of our April 10 letter to Mr. Samson and our May 18 letter to Mr. Sweeney. Our earlier responses are of course germane to your request dated May 12, 2006, since the requests apply to the same records, even though the scope of the requests differ somewhat. The following response is similar to our May 18, 2006 reply to Mr. Sweeney. Please be advised that any non-exempt records and non-exempt information will be made available upon payment of the direct cost of duplication. However, please also be advised, as discussed further below, that due to the extremely sensitive nature of the requested records, and numerous exemptions from and prohibitions against disclosure that apply to such records, portions of non-exempt records that remain following redaction may be de-minimus, and the utility of disclosing such non-exempt information may be minimal when weighed against the burden of segregating such information. Accordingly, the public interest in non -disclosure of such records may clearly outweigh the public interest in disclosure, and Section 6255 of the CPRA may apply to exempt the records. (See, ACLU v. Deukmejian (1982) 32 Cal.3d 440.) 401 Mendocino Avenue, Suite 100 1 Santa Rosa, California 95401 i. tol 707.545.8009 1 fax 707.545.6617 I www.meyersnove.com A A K-L-A-N-0-�-A-N-L-EA-N-0 R-O--�A-N-FA-A-OVA-�-S-A C-fM M-EN-F A-�S�A N-F kA Ni; I SCOYL O�Ai�I-GE L E� t Mr. David E. McCraw, The New York Times Company Re: Request for Public Records Dated May 12, 2006 May 25, 2006 Page 2 The records covered by your request include 17 cases of alleged child abuse,1 case of alleged domestic violence, 2 cases of alleged elder abuse, and 1 detention for psychiatric examination. As you may imagine, .law enforcement records involving such matters are among the most sensitive maintained by police departments. In addition to statutory provisions that prohibit the disclosure of such records, discussed further below, such records implicate privacy rights protected under Article I, Section 1 of the California Constitution. Unauthorized release of such information may be an invasion of protected privacy rights, and a basis of liability for the City. (See, Hill v. National Collegiate AthletfcAssn. (1994) 7 Cal.4th 1; Teamsters Local 856 v. Priceless, LLC (2003)12 Cal.App. 4'h 1500; Alarcon v. Murphy (1988) 201 Cal.App.3d 1.) In addition, disclosure of some or all of the requested information is prohibited or exempted in accordance with the following: Regarding Police Department records of cases of alleged child abuse, Califomia Penal Code Section 11167.5 prohibits disclosure of reports submitted by mandatory reporters of alleged abuse, and investigative reports resulting in a summary report being filed with the Department of Justice in accordance with California Penal Code Section 11169. Section 11167.5 requires that such information be kept confidential and only permits disclosure to those individuals and agencies specified in subdivision (b) of - Penal Code Section 11167.5. The New York Times Is not among the individuals or agencies identified in subdivision (b) of Penal Code Section 11167.5. Furthermore, as you may be aware, Penal Code Section 11167.5(a) provides that'ta)ny violation of the confidentiality provided by this article is a misdemeanor. punishable by imprisonment in a county jail not to exceed six months, by a fine of five hundred ($500), or by both...." Therefore, not only is disclosure of information protected under Section 11167.5 prohibited, disclosure will subject the City and its officials to criminal liability. Accordingly, records sought whose disclosure is prohibited under Penal Code Section 11 167.5are exempt from disclosure -under -subdivision = - (k) of Section 6254 of the CPRA, which exempts from disclosure records whose disclosure is prohibited or exempt pursuant to federal or state law. To the extent such exempt information is covered by your request, your request is denied. Also, some or all of the records involving alleged child abuse reports may be confidential under California Welfare and Institutions Code Section 827 due to their inclusion ina_juvenile.case-file._ _The disclosureof such files is only permissible to those persons and agencies identified in California Welfare and Institutions Code Section 827(a)(1)(Aj-(0). The New York Times is not among the individuals or agencies identified in subdivision (a)(1). Additionally, Rule 10.15 of the Sonoma County Superior Court Rules is applicable to any case subject to a juvenile court proceeding. Any records subject to Rule 10.15 may not be released without a court order. Accordingly; records sought that are confidential under Welfare and Institutions Code Section 827 and/or Rule 10.15 are exempt from disclosure under subdivision (k) of Section 6254 of the CPRA. To the extent such exempt information is covered by your request, your request is denied. Regarding police department records concerning detentions for psychiatric evaluation under California Welfare and Institutions Code Section 5150, Welfare and Institutions Code Section 5328 provides that all information and records obtained in the course of providing services under specified provisions, including Section 5156, to either voluntary or involuntary recipients, are confidential, and may only be disclosed to the individuals and agencies, and for the purposes specified in subdivisions (a)-(x). The New York Times is Mr. David E. McCraw, The New York Times Company Re: Request for Public Records Dated May 12, 2006 May 25, 2006 Page 3 not among of the Individuals or agencies, identified in subdivisions (a)-(x). Further, Welfare and Institutions Code Section 5330 grants individuals whose reports have been released In violation of Section 5328 a civil cause of action for damages against, the individual who released the report. Therefore, not only is disclosure of information protected under Section 5328 prohibited, disclosure will subject the City and its officials to civil liability. Accordingly; records sought whose disclosure is prohibited under Welfare and Institutions Code Section 5328 are exempt from disclosure under subdivision (k) of Section 6254 of the CPRA. To the extent such exempt Information is covered by your request, your request is denied. Regarding police department records concerning cases of alleged elder abuse, California Welfare and Institutions Code Section 15633 provides that reports of alleged elder abuse under Welfare and Institutions Code Section 15630 are confidential and may only be disclosed as provided in subdivision (b) of Section 15633. The New York Times is not among the persons or agencies identified in Section 15633, subdivision (b), Further, under Section 15633(a), violations of Section 15633 are misdemeanors punishable by up to six months in jail, a fine of five -hundred dollars, or both. Therefore, not only is disclosure of information protected under Section 15633 prohibited, disclosure will subject the City and its officials to criminal liability. Accordingly, records sought whose disclosure is prohibited under Welfare and Institutions Code Section 15633 are exempt under CPRA Section 6254(k). To the extent such exempt information is covered by your request, your request is denied. In addition to the express prohibitions against disclosure addressed above, the exempt information concerning records of alleged child abuse, psychiatric detentions, and alleged elder abuse are also. exempt from disclosure under California Government Code Section 6255, which provides that records may be withheld from disclosure when, based on the facts of the particular rase, "the public interest served by not disclosing the records clearly outweighs the public -interest served by disclosure of the record." The Legislature has effectively already applied this balancing test by enactingte-statutes•prohibiting-disclosure- -- - - discussed above. Your May 12, 2006 letter refers to Proposition 59, which was approved by voters in November 2004, and amended Article I, Section 3 of the California Constitution. As you know, Proposition 59 enacted in the California Constitution protection for the public's right of access to California public agency.meetfngs and records. However, the savings provision contained in Article l 5-action 3; paaragfaph (3) provides that nothing in the amendment affects any statute, rule or other authority that protects the right to privacy. All of the prohibitions against and exemptions from disclosure addressed above protect privacy rights. Therefore, by its own terms, Proposition 59 has no effect on the authorities described above protecting the privacy of child and elder abuse victims, and psychiatric evaluation detainees. Presently, our office is working with Petaluma Police Department staff on the painstaking process of reviewing the entire contents of all the records addressed in your request, and determining what, if any, portions of the records identified in your request may be subject to disclosure after redaction of the portions whose disclosure Is prohibited and exempted as described above. In particular, we are determining what portions of the requested information that is required to be disclosed pursuant to CPRA Section 6254(f), paragraphs (1), (2), and (3), and that will not threaten the successful completion of an investigation, remains following redaction of prohibited and exempt information pursuant to the Penal Code, the Welfare �O Mr. David E. McCraw, The New York Times Company Re: Request for Public Records Dated May 12, 2006 May 25, 2006 Page 4 and Institutions Code, and Sonoma County Court Rules. To the extent a meaningful amount of such information remains following redaction in light of the burden of redacting the records, City staff will contact you to make arrangements for payment of the duplication costs and obtaining the information. Staff will similarly contact Mr. Samson and Mr. Sweeney. The City duplication cost is $.15 per page. In accordance with Section 6253(c) of the CPRA, we estimate that any non-exempt records or portions of records responsive to your request will be available by or before Monday, May 29, 2006. I am responsible for this determination concerning your records request in my capacity as City Attorney of the City of. Petaluma, in consuftatlon with authorized representatives of our client the City. If you have any questions, or are able to refer me to controlling legal authority that supports a different result, please contact me. Very truly y Eric W. Danly, City Attorney City of Petaluma 931219 cc: Mike Bierman, City Manager Steve Hood, Police Chief Honorable Mayor and City Council Members Chris Samson, Argus Courier Jim Sweeney, The Press Democrat OA 5-16-06 ARGU&COURIER Sue --Original Message— From: ybieberich@argucourier.com [mailtoybieberich@arguscourier.com] Sent Tuesday, May 16, 2006 2:56 PM To: Grant, Sue Cc: esamson@argLiscourier.com;jbums@arguscourier.com Subject: abuse cases For incidents: 3171, 3074, 3079, 3189 we're requesting a description and circumstances of the incidents, including the gender and age of the victims, the specific nature of the alleged crime, the location of the crime, including whether it was at a school or day care facility, elder car facility or other public place, and the relationship of the suspect to the victim. If you are not able to provide this information, we would like to know the specific reason why it was determined that,this information cannot be disclosed. -Yovanna Bieberich 1 m e y e r s( n a v e riback silver & wilson professional law corporation Eric W. Danly Attorney at Law 707.645.8009 via Facsimile 707-776-8482 May 25, 2006 Yovanna Bieberich Petaluma Argus-Couder 1304 Southpoint Blvd., Suite 101 Petaluma, CA 94954 Re: Request for Public Records Dated May 16 2006 Dear Ms. Bieberich: As you know, we represent the City of Petaluma. This letter concerns your email request dated May 16, 2006 and received by the City on that same day, pursuant to the California Public Records Act ("CPRA"). The email requests portions of four (4) Petaluma Police Department records, records nos. 06-0003171, 06- 0003074, 06-0003079, and 06-00031 E19. Your request seeks the following information from the specified records: a description and circumstances of the incidents, including the gender and age of the victims; the specific nature of the alleged crime; the location of the crime, including whether it was a school, day care facility, elder car [sic] facility, or other public place and, the relationship of the suspect.to the victim. As you are no doubt aware, you requested similar information for records nos. 06-0003074 and 06-0003079 on May 11, 2006. The City responded to this request on May 22, 2006. Therefore, please also refer to our reply dated May 22, 2006, concerning such records. To the extent such records or portions of them are don -exempt, they will be made available pursuant to our May 22 letter. Concerning records 06-0603171 and 06-0003189, which have not been previously requested, please be advised that any non-exempt records or portions of records responsive to your request will be made available upon payment of the direct cost of duplication. However, please also be advised, as further discussed below, that due to the extremely sensitive nature of the requested records, and numerous exemptions from and prohibitions against disclosure.that apply to such records, portions of non-exempt records that remain following redaction may be de-minimus, and the utility of disclosing such non-exempt information may be minimal when weighed against the burden of segregating such information. Accordingly, the public interest in non -disclosure of such records may clearly outweigh the public interest in disclosure, and Section 6255 of the CPRA may apply to exempt the records. (See, ACLU V. Deukmejian (1982) 32 Cal.3d 440.) The records covered by your request include two cases of alleged sexual battery and two cases of alleged child abuse. As you may imagine, law enforcement records involving such matters are among the most sensitive maintained by police departments. In addition to the statutory provisions that prohibit the disclosure of such records, discussed further below, such records implicate victim privacy rights protected under Article I, Section I of the California Constitution. Unauthorized release of such information may be an invasion of protected privacy rights, and a basis of liability for the city. (See, Hill v. National Collegiate 401 Mendocino Avenue, Suite 100 1 Santa Rosa, Califomia 85401 1 te1707.545.8009 1 fax 707.545.6617 1 www.meyersnave.com OAKLAND • SAN LEANDRO • SANTA ROSA • SACRAMENTO • SAN FRANCISCO • LOS ANGELES A0 Yovanna Bieberich Petaluma Argus-Courier Re: Request for Public Records May 25, 2006 Page 2 Athletic Assn. (1994) 7 CalAth 1; Teamsters Local856 v. Priceless, LLC (2003)12 Cal.App.4th 1500; Alarcon v. Murphy (1988) 201 Cai.App.3d 1.) In addition, disclosure of some or all of the requested information is prohibited or exempted in accordance with the following: Regarding Police Department records of alleged child abuse, California Penal Code Section 11167.5 prohibits disclosure of reports submitted by mandatory reporters of alleged abuse, and investigative reports resulting in a summary report being filed with the Department of Justice in accordance with California Penal Code Section 11169, Section 11167.5 requires that such information be kept confidential and only permits disclosure to those individuals and agencies specified in subdivision (b) of Penal Code Section 11167.5. Furthermore, as you maybe aware, Penal Code Section 11167.5(a) provides that "[ajny violation of the confidentiality provided by this article is a misdemeanor punishable by imprisonment in a county jail not to exceed six months, by a fine of five hundred ($500), or by both...." Therefore, not only is disclosure of information protected under Section 11167.5 prohibited, disclosure will subject the City and its officials to criminal liability. Accordingly, records sought whose disclosure is prohibited under Penal Code Section 11167.5 are exempt from disclosure under subdivision (k) of Section 6254 of the CPRA, which exempts from disclosure records whose disclosure is prohibited or exempt pursuant to federal or state law. To the extent such exempt information is covered by your request, your request is denied. Regarding Police Department records of alleged sexual battery, in accordance with California Government Code Sections 6254(f)(2) and 6254(f)(3); non-exempt information required to be disclosed pursuant to such provisions and that is responsive to your request shall be disclosed. In addition to the express prohibitions against and/or exemptions from disclosure addressed above, the .exempt information concerning records of alleged child abuse and sexual battery is also exempt from disclosure under California Govemment Code Section 6255, which provides that records may be withheld from disclosure when, based on the facts of the particular case, "the public interest served by not disclosing the records clearly outweighs the public interest served by disclosure of the record." The Legislature has effectively already applied this balancing test by enacting the statutes prohibiting and/or exempting disclosure discussed above. Presently, our office is working with Petaluma Police Department staff on the painstaking process of reviewing the entire contents of all the records addressed in your request, and determining what, if any, portions of the records identified in your request may be subject to disclosure after redaction of the portions whose disclosure is prohibited and exempted as described above. In particular, we are determining what portions of the requested information that is required to be disclosed pursuant to CPRA Section 6254(0, paragraphs (2) and (3), and that will not threaten the successful completion of an investigation, remains following redaction of prohibited and exempt Information pursuant tothe Penal Code. A� Yovanna Biebedch Petaluma Argus-Courier Re: Request for Public Records May 25, 2006 Page 3 To the extent a meaningful amount of such information remains following redaction in light of the burden of. redacting the records, City staff will contact you to make arrangements for payment of the duplication costs and obtaining the information. The City duplication cost is $0.15 per page. In accordance with Section 6253(c) of the CPRA, we estimate that any non-exempt records or portions of records responsive to your request will be available by or before Tuesday, June 6, 2006. 1 am responsible for this determination concerning your records request In my capacity as City Attorney of the City of Petaluma, in consultation with authorized representatives of our client the City. If you have any questions, or are able to refer me to controlling legal authority that supports a different result, please contact me. Very truly yo , , Eric W. Danly, City Attorney City of Petaluma 831249 cc: Mike Bierman, City Manager Steve Hood, Police Chief Honorable Mayor and Cily Council Members 5-1 8-06 ARGUSCOURIER REQUEST -----Original Message ----- From: ybieberich@arguscourier.com [mailto:ybieberich@arguscourier.comj Sent: Thursday, May 18, 2006 9:23 AM To: Grant,, Sue; jburns@arguscourier.com; csamson@arguscourier.com Subject: abuse cases " For incidents: 3171, 3074, 3079, 3189, 3018, 3019, 2705, 2572, 2586, 2493, 2509,- 2515, 2372, 2409, 2410, 2296, 2301, 2169, 2167, 1821, 1868, 2001, 1995, 2043, 2044, 2312, 2122, 2061, 0664, 0799, 2299 we're requesting a description and circumstances of the incidents, including the gender and age of the victims, the specific nature of the alleged crime, the location of the crime, including whether it was at a school or day care facility, nursing home or business, and the relationship of the suspect.to the victim. If, you are not able to provide this information, we would like to know the specific reason why it was determined that this information cannot be disclosed. -Yovanna Bieberich m e y e r s Ina v-e riback silver & wilson . Eric W.Danly Attorney at Law . professional law corporation 707.545.8009 Via Facsimile 707-776-8482 May 30, 2006 Ms. Yovanna 8iebericb_ .- - - Petaluma Argus-Courier 1304 Southpoiot Blvd., Suite 101 Petaluma, CA 94954 Re: Request for Public Records Dated May 8, 2006 and May 18, 2006 Dear Ms. Bieberich: As you Imow, we represent the City of Petaluma In the interest of maximizing limited public resources while effectively responding to the ongoing, voluminous requests received by our office from your organization, this letter responds to your email request dated May 8, 2006 and your two email requests dated May 18, 2006. an May 8, 2006, the City receivedan email request pursuantto the California Public Records Act ("CPFW) requesting portions of twenty-seven (27) Petaluma Police Department records, records nos. 06-0003018, 06-0003019, 06-0002705, 06-0002572, 06-0002586, 06-0002493, 06-0002509, 06-0002515, 06-0002372, 06-0002409, 06:0002410, 06-0002296, 06-0002301, 06-00021.69, 06-0002167, 064)001821, 06-0001868, 06-0002001,.06-0001995, 06-0002043, 06.0002044, 06-0002312, 06.0002122, 06-0002061, 06-0000664, *06-0000799, and 06-0002299. Your May 8 request seeks the following information: a description and circumstances of the incident, including the gender and age of the victims; the specific nature of the alleged crime; the location of the crime, including whether it was at a school or day care facility; and the relationship of the suspect to the victim. In a Igtter to you dated May 17, 2006, we extended the time for responding to the May 8 request by an additional fourteen (14) days pursuant to California Government Code section 6253(c). Accordingly, we provided that a response would be available by Thursday, June 1, 2006. This letter is the substantive response on behalf of the City to your May 8 request. As you are no doubt aware, Chris Samson, Managing Editor of the Petaluma Argus-Courier, requested similar information for records nos. 06-0001868, 06-0002043, 06-0002044, and 06-0000799, and 06- 0002061 on March 31, 2006. That request sought details on the type of abuse and age and gender of the victim. The City responded to the March 31 request on April 10, 2006. Therefore; because the records specified in the March 31 request are repeated in your May 8 request, please refer to our reply dated April 10; 2006, concerning such records. Additionally, please refer to our reply letters to The Press Democrat 401 Mendocino Avenue, Suite 100 1 Santa Rosa, California 95401 1 te1707.545.8009 1 fax 767.545.6617 1 www.mey,mnave.com OAKLAND • SAN LEANDRO • SANTA ROSA � SACRAMENTO • SAN FRANCISCO LOS ANGELES_-„- Yovanna Biebekh Re: Request for Public Records Dated May 8, 2006 and May 18, 2006 May 30, 2006 Page 2 (dated May 18, 2006) and The New York Times (dated May 25, 2006) conceming precisely the same records and the availability of any non-exempt portions of such records. On May 18, 2006, the City received another email request from you pursuant to the California Public Records Act ("CPRAJ requesting portions of thirty-two (39.) Petaluma Police Department records, records nos.,06-0003295, 06-0003171, 06-0003074, 06-0003079, 06-0003189, 06-0003018, 06.0003019, 06- 0002705, 06-0002572, 06-0002586, 06-0002493, 06-Wo2509, 06-0002515, 06-0002372, 06-0002409, 06- 0002410, 06-0002296, 06-0002301, 06-0002169, 06-W02167, 06-0001621, 06.0001868, 06-0002001, 06- 0001995, 06-0002043, 06-0002044, 06-0002312, 06-0002122, 06-0002061, 06-0000664, 06-0000799, and 06-2299. The May 18 request seeks the following., a description and circumstances of the incident, including the gender and age of the victims; the specific nature of the alleged crime: the location of the crime, including whether it was at a school, day care facility, nursing home, or business; and, the relationship of the suspect to the victim. The May 18 request seeks initially the same information for records nos. 06-0003018, 06-0003019, 06-0002705, 06-0002572, 06-0002586, 06-0002493, 06-0002509, 06-0002515,06-0002372,.06-0002409,06-0002410,-06,0002296,06-0002301,06.0002169,06-0002167, 06-0001821, 06-0001868, 06-0002001-06.000#995� 06.4002043;U6=0002044; 06-00023-i2rQ6.0002922;- - - --- - 06-0002061, 06.0000664, 06-0000799, and 06-0002299 that was sought in your May 8 request (and repeated in your May 18 request). Also, your May 18, 2006 email requested information for records nos. 06-0003295, 06-0003171, 06- 0003074, 06-0003079, and 06-0003189. Records nos. 06-0003171, 06-0003074, 06.0003079, and 06-0003189, which are covered by the May 18 request, were also included in a request dated May 16, 2006. Your May 16, 2006 request sought the following: a description and circumstances of the incidents, including the gender and age of the victims; the specific nature of the alleged crime; the location of the crime, including whether it was at a school, day care facility, elder care facility, or other public place; and the relationship of the suspect to the victim. The City responded to that request on May 25, 2006. Our May 25 letter noted that you requested similar information for records nos. 06-0003074 and 06-0003079 on May 11, 2006 and that the City responded to the May 11 request on May 22, 2006, and referred you to our May 22, 2006 letter regarding the extent such records or portions of them are non-exempt and when such records would be made available for your review. Finally, you submitted.a second -request to the City on May 18, 2006 which included a request for police records nos. 06-0003260 and 06-0003295. This request asked far `li]ncidents occurring May 15-iV and referred to the assigned police case number with no specific request as to the type of information sought. The request concerning police record no. 06-0003260 is a new request. However, the request for police record 06-0003295 repeats your other May 18, 2006 request. Therefore, based on the above, please be advised that this letter responds to your request for record nos. 06-0003018,06-0003019,06-0002705,06-0002572,06-0002586,06.0002493,06-0002509,06-0002515, Yovanna Bieberich Re: Request for Public Records Dated May 8, 2606 and May 18, 2006 May 30, 2006 Page 3 06.0002372, 06-0002409, 06-0002410, 06-0002296,.06-0002301, 06-0002169, 06-0002167, 06-0001821, 06-0002001, 06-0001995, 06-0002312, 06-0002122, 06-0000664, 06-0002299, 06-0003260, and 06- 0003295, which have not been previously requested. The City s response concerning records nos. 06- OD01868, 06-0002043, 06-0002044, 06-0000799, and 06-0002061 is addressed in our April 10, 2006 letter to your organization, and our May 18, 2006 letter to The Press Democratand May 25, 2006 letter to The New York Times. The City's response oonceming records nos. 06-0003171, 06-0003074, 06-0003079, and 06-0003189 is addressed in our May 25, 2006 response letter to your organization. Please be advised that record nos. 06-0000664 and 06-0002299 are voided reports because a report has not been completed by the Department. A report is voided when, for example, the Department has determined that the incident has already been reported or the report serves as a supplement to an existing report.. Concerning record nos. 06-0003018, 06-0003019, 06-00%705, 06-0002572, 06-0002586, 06- 0002493, 06-0002509, 06-0002515, 06-0002372, 06-0002409, 06-0002410, 06-0002296, 06-0002301, 06- 0002169, 06.0002167, 06-0001821, 06-0002001, 06-0001995, 06-0002312; 06-0002122, 06.0003260, and 06.0003295, which have not been previously requested, please be advised that any non-exempt records or portions of records responsive to your request will be made available upon payment of the direct cost of duplication. However, please also be advised, as further discussed below, that due to the extremely sensitive nature of the requested records, and numerous exemptions from and prohibitions against `disclosure that apply to such records, portions of non-exempt records that remain following redaction may be de-minimus, and the utility of disclosing such non-exempt information may be minimal when weighed against the burden of segregating such information. Accordingly, the public interest in non -disclosure of such records may clearly outweigh the public interest in'disclosure, and Section 6255 of the CPRA may apply to exempt the records from disclosure. (See, ACLU v. De616nejian (1982) 32 Cal.3d 440.) The records covered by your request include twenty (20).cases.ofalleged child.abuse.and two (2) cases of alleged sexual battery. As you may imagine, law enforcement records involving such matters are among the most sensitive maintained by police departments. in addition to the statutory provisions that prohibit the disclosure of such records, discussed further below, such records Implicate victim privacy rights protected under Article I, Section I of the California Constitution. Unauthorized release of such information may be an 'invasion of protected privacy rights, and a basis of liability for the city. (See; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.41h 1; Teamsters Local856 v. Priceless, LLC (2003)12 Cal.AppAth 1500; Alarcon v. cif hy(1988) 201 CalApp.3d 1.) In addition, disclosure of some or all of the requested information is prohibited or exempted in accordance with the following: Regarding Police Department records of alleged child abuse, California Penal Code Section 11167.5 prohibits disclosure of reports submitted by mandatory reporters of alleged, abuse, and investigative reports resulting in a summary report being filed with the Department of Justice in accordance with California Penal Code Section 11169. Section 11167.5 requires that such information be kept confidential and only permits A Yovanna Bieberich Re: Request for Public Records Dated May 8, 2006 and May 18, 2006 May 30, 2006 Page 4 disclosure to those individuals and agencies specified in subdivision (b) of Penal Code Section 11167.5. Furthermore, as you may be aware, Penal Code Section 11167.5(a) provides that Ja]ny violation of the confidentiality provided by this article is a misdemeanor punishable by imprisonment in a county jail not to exceed six months, by a fine of five hundred ($500), or by both... ° Therefore, not only is disclosure of . information protected under Section 11167.5 prohibited, disclosure will subject the City and its. officials to criminal liability. Accordingly, records sought whose disclosure is prohibited under Penal Code Section 11167.6 are exempt from disclosure under subdivision (k) of Section 6254 of the CPRA, which exempts from disclosure records whose disclosure is prohibited or exempt pursuant to federal or state law. To the extent such exempt information is covered by your request, your request is denied. . Regarding Police Department records of alleged sexual battery, in accordance with California Government Code Sections 6254(f)(2) and 6254(f)(3), non-exempt information required to be disclosed pursuant to such provisions and that is responsive to your request shall be disclosed. In addition to the express prohibitions against and/or2xemptions4rom-disclosure addressed -above; the - exempt information concerning records of alleged child abuse and sexual battery is also exempt from .disclosure under Carrfomia Government Code Section 6255, which provides that records may be withheld from disclosure when, based on the facts of the particular case, 'the public interest served by not disclosing the records clearly outweighs the public interest served by disclosure of the record." The Legislature has ;effectively already applied this balancing test by enacting the statutes prohibiting and/or exempting disclosure discussed above. Presently, our office is working with Petaluma Police Department. staff on the painstaldng process of reviewing the entire contents=of all#he-records addressed4n4his-request, and determining what, if any, portions of the records identified in your request may be subject to disclosure after redaction of the portions whose disclosure is prohibited and exempted as described above, in particular, we are determining what portions of the requested information that is "required to be disclosed pursuant to CPRA Section 6254(f), paragraphs (2) and (3), and that will not threaten the successful completion of an investigation, remains following redaction of prohibited and exempt information pursuant to the Penal Code. To the extent a meaningful amount of such information remains following redaction in light of the burden of redacting the records, City staff will contact yourto make arrangements for payment of the duplication costs and obtaining the informafion. The City duplication cost is $0.15 per page. In accordance with Section 6253(c) of the CPRA, we estimate that any non-exempt records or portions of records responsive to your request will be available by or before Tuesday, June 13, 2006. - -A% Yovanna Bieberich he: Request for Public Records Dated May 8, 2006 and May 18, 2006 May 30, 2006 Page 5 .I am responsible for this determination concerning your records request in my capacity as City Attorney of the City of Petaluma, in consultation with authorized representatives of our client the City. If you have any questions, or are able to refer me to controlling legal authority that supports a different result, please contact me. Very truly yours, Eric W. Danl , City Attorney City of Petaluma cc: Mike Bierman, City Manager Steve Hood, Police Chief Honorable Mayor and City Council Members 5-26-06 is ----Original Message --- From: ybieberich@arguscourier.ram[mailto:ybieberich@uL'uscourier.com] Sent: Friday, May 26, 2006 4:17 PM To: Grant, Sue Subject police log 3560: what vandalized, value 3565: what stolen, entry gained, value 3564: what stolen, value, entry gained 3572: what stolen, entry gained 3573: what vandalized, value . 3574: make, model, year, color - 3579: what stolen, entry gained, value 3578: what stolen, value 3583: circumstances of event. 3584: what kind of drug 3591: child abuse: circumstances of event 3590: what stolen, value 3596: type of drug 3602: what stolen, entry gained 3606: what vandalized, value 3603: what stolen, entry gained 3604: what stolen, value 3607: fraud: circumstances of event 3608: type of paraphernalia 3609: what kind of drug 3610: someone sold tear gas to a minor? Circumstances of event, 3612: what vandalized, value, gang -related? 3611: what stolen, value 3613: fraud: circumstances of event 3616: child abuse: circumstances of event 6/8/2006 • 1• LETTER TO NY TIMES PRESS DEMOCRAT 91 m e y e r s, I n a v e, riback silver & wilson professional law corporation VIA FAX AND MAIL June 7, 2006 Mr. David E. McCraw New York Times Company 29 West 43b Street New York, New York 10036 Mr. Chris Samson Petaluma Argus-Courier 1304 Southpoint Blvd., Suite 101 Petaluma, CA 94954 Mr. Jim Sweeney The Press.Democrat P.O. Box 910 Santa Rosa, CA 95402 Re: Dear Messrs: McCraw, Samson, and Sweeney: Eric W. Danly Attorney at Law 707.545.8009 .As you know, we represent the City of Petaluma. Recently, we responded to your written requests on behalf of your respective newspapers for part or all of the above -referenced Petaluma Police Department records, pursuant to the California Public Records Act (" CPRA"). As you are aware, our client, the City, received similar, but not identical, requests concerning precisely the same set of Petaluma Police Department records from the Argus-Courier, The Press Democrat, and the New York Times. We have concluded review and redaction of the responsive records. City staff will contact you shortly to make arrangements for payment of the duplication costs and your obtaining the non-exempt information. Although each of your respective requests sought somewhat different information from the above - referenced records, in an effort to efficiently utilize limited public resources and In the spirit of cooperation, the City is making available to each.of you all information in the above -referenced records whose 401.Mendocino Avenue, Suite 100 I Santa Rosa, California 95401 1 W 767.545.8009 1 fax 707.545.6617 I www.nnepersnave.com OAKLAND • SAN LEANDRO • SANTA ROSA •.SACRAMENTO • SAN FRANCISCO • LOS ANGELES Messrs. McCraw, Samson, and Sweeney Re: Redacted Public Records June 7, 2006 Page 2 disclosure is not prohibited or otherwise exempt under the CPRA and/or other applicable state or federal law. However, please be advised that, in our opinion, the utility of disclosing these records is questionable because the public interest in the information received from the records following redaction of prohibited and otherwise exempt information is de-minimus when weighed against the burden of segregating non- exempt information from exempt Information. Collectively, your requests addressed in this letter and additional ongoing requests of the Argus-Courier have raised a legitimate concern of City decision -makers regarding whether such ongoing requests impose on the Ciry, a limitless obligation to respond to requests for information that is of marginal and speculative benefit to the public. (See, ACLU v Deukmejian (1982) 32 Cal.3d 440.) Based on our review of the entire contents of all of the records addressed in your requests, we have determined what portion of the requested Information is required to be disclosed pursuant to CPRA Section 6253 and 6254(o, paragraphs (1), (2), and (3) that will not threaten the successful completion of an investigation and that is not prohibited from being disclosed pursuant to Cahfomia Penal Code Section 11167.5, California Welfare and Institutions Code Sections 827, 5328,15633, and/or Rule 10.15 of the Sonoma County Superior Court Rules. We have determined that 58 pages will be disclosed. The City duplicatiorr cost is $0A5 per page; therefore, a total duplication cost of $8.70 will apply to each request. The records covered by your.request include 17 cases of alleged child abuse;/ case of alleged domestic violence, 2 cases of alleged elder abuse, and 1 detention for psychiatric examination. As noted in our previous response letter, some of the requested records are prohibited from being disclosed and are exempt in their entirety. In particular; no part of Police Department records nos. 06-0001868, 06-0001427, 06-000.1374, 06-0001293, 06-0001309, 06-0001019, and 06.0000799 shall be disclosed: As we have previously advised you, California Penal Code Section 11167.5(a) prohibits the disclosure of child abuse or neglect investigative reports that conclude that the allegations of abuse are not unfounded and that result in the filing of a summary report with the Department of Justice pursuant to California Penal Code Section 11169(a). The aforementioned records have resulted in such a summary report being filed with the Department of Justice and, therefore, are prohlbitedJrom being disclosed and are exempt in their entirety. As for the remaining police records, the information subject to disclosure is that information which is not otherwise exempt due to its inclusion in a report made pursuant to Penal Code Section 11166, Welfare and Institutions Code Section 5150, or Welfare and Institutions Code Section 15630. Information in reports made pursuant to the aforementioned statutes is.confideniial.pursuant to Penal Code Section 11167.5, Welfare and Institutions Code Section 5328, and Welfare and Institutions Code Section 15633, respectively. Therefore, release of information contained in such confidential reports is prohibited. I am responsible for this determination conceming your records request in my capacity as City Attorney of the City of Petaluma, in consultation with authorized representatives of our, client the City. If you have any Messrs. McCraw, Samson, and Sweeney Re: Redacted Public Records June 7, 2006 Page 3 questions, or are able to refer me to controlling legal authority that supports a different result, please contact me. Very truly yours, Eric W. Danly, Ci Attorney City of Petaluma cc: Mike Bierman, City Manager Steve Hood, Police Chief Honorable Mayor and City Council Members fl333702 %6