I have reviewed your request to the Los Angeles Police Department (“Department”) under the California Public Records Act (Cal. Govt. Code section 6250, et seq., hereinafter the “Act”) seeking “all discipline history and use of force history for Officer Dan Welle.”
The Department is cognizant of its responsibilities under the Act. It recognizes the statutory scheme was enacted to maximize citizen access to the workings of government. The Act does not mandate disclosure of all documents within the government’s possession. Rather, by specific exemption and reference to other statutes, the Act recognizes that there are boundaries where the public’s right to access must be balanced against such weighty considerations as the right of privacy, a right of constitutional dimension under California Constitution, Article 1, Section 1. The law also allows for nondisclosure of records that are otherwise exempt under either express provisions of the Act or pursuant to applicable federal or state law, per California Government Code Sections 6254(a); 6254(b); 6254(c);6254(f); 6254(k); and 6255.
The Department also recognizes that Penal Code Section 832.7 – which generally makes all peace officer personnel records confidential and undisclosable – was amended on January 1, 2019 by Senate Bill 1421 to create an exception from that general confidentiality requirement for the following four categories of officer personnel and investigatory records: records relating to the report, investigation, or findings of (i) an incident regarding an officer-involved shooting; (ii) an incident involving the use of force by an officer resulting in death or great bodily injury; (iii) an incident involving a sustained finding of sexual assault by an officer involving a member of the public; and (iv) an incident involving a sustained finding of dishonesty by an officer directly related to the reporting, investigation, or prosecution of a crime or of the investigation of misconduct by another officer. Pen. Code § 832.7(b)(1)(A)-(C).
The Department has conducted a search for responsive records to your request, and did not locate disclosable responsive records pertaining to sustained complaints of sexual assault or dishonesty. The Department does maintain disclosable responsive records for discharge of a firearm, or use of force resulting in great bodily injury or death for: Dan Welle, Serial 21129 (F79-421138); however, there are no disciplinary records associated with this officer-involved shooting.
Due to the age of the file for the records requested, a physical search will need to be conducted for archived documents for identification and retrieval of possible responsive records. The Department will need additional time for document identification and retrieval.
With respect to your request for all discipline history and use of force history for Dan Welle, Serial 21129, the records you seek are not disclosable pursuant to Pen. Code § 832.7(b)(1)(A)-(C). Rather, records responsive to your request remain privileged, confidential, and exempt from disclosure under Government Code Sections 6254(c) and (k), and Penal Code Section 832.7(a). Section 6254(c) exempts from disclosure “personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Section 6254(k) exempts records which are exempt from disclosure under federal or state law, including, but not limited to provisions of the Penal Code. Penal Code Section 832.7(a) states that peace officer personnel records and information contained within them are privileged and confidential and cannot be disclosed except through discovery pursuant to Sections 1043 and 1045 of the Evidence Code. California case law holds that Evidence Code Section 1043 et seq. is the exclusive means to obtain peace officer personnel records, and as such, they are exempt from the disclosure provisions of the Act. [See City of Hemet v. Superior Court (1995) 37 Cal. App. 4th 1411]. Therefore I am denying your request.
Please note that, pursuant to Penal Code Section 832.7(b)(5), the Department is required to redact disclosable records for several enumerated purposes, including to remove personal data or information; to protect the anonymity of complainants and witnesses; to protect confidential medical, financial, or other similar information; and where disclosure of the record would pose a significant danger to the physical safety of the subject officer or other persons. Furthermore, for electronic records, the CPRA provides that the cost to perform such redactions “shall” be borne by the requestor. See Govt. Code 6253.9(b)(2) (providing that a person requesting electronic records under the CPRA “shall bear the cost of producing a copy” of such records where data compilation, extraction, or programming is required to produce the record); National Lawyers Guild v. City of Hayward, 27 Cal. App. 5th 937 (2018) (holding that a public agency was entitled under Section 6253.9 to charge a requester for costs it incurred to edit and redact nondisclosable material from police body camera videos).
At this time, the Department is still in the process of identifying all possible records responsive to your request. Should audio/video materials be located and you would like a copy, the Department will then provide you with an estimate of time that will be required for an employee to complete the redactions/or programming with a cost rate of the person(s) who will be completing the work for a total cost estimate. Upon receipt of payment, the Department will begin performing the required redactions in order to produce the responsive records.
In regards to the above records we have identified responsive to your request, due to the large number of requests for similar records the Department is processing pursuant to the above criteria, we are currently unable to provide you with an estimated date records responsive to your request will be available. However, we will continue to provide you updates on any future developments regarding your request, including when the records are available. Thank you again for your patience and understanding.
We also invite you to visit our SB1421 web page, where you will find similar requested records related to officer involved shootings, uses of force with great bodily injury, sustained complaints of sexual assault, and sustained complaints of dishonesty published on our web page. The Department uploads documents on a weekly basis when documents become available. Please see link below.
If you have any questions or concerns, please reply to this email.
LAPD Legal Affairs Division CPRA Unit