Q: I have received conflicting information from public records experts and police public information officers on what law enforcement agencies have to release relating to arrest history. So, let me ask you directly, if I submit a request to a police department in California that asks if John Doe, DOB 1/1/60, has ever been arrested or involved as a party in a criminal incident, what does the law say about how the agency is supposed to respond?
A: California’s Public Records Act requires law enforcement agencies to disclose “[t]he full name, current address, and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.” Cal. Gov’t Code section 6254(f)(1). Under this section, it would appear that if you provide the name of an individual, and that individual has been arrested, the agency would be required to provide you with the information stated above, unless providing that information would endanger the safety of a witness or other person involved in the investigation, or would endanger the successful completion of the investigation. Gov’t Code section 6254(f). Police agencies may argue that sections 6254(f)(1) and (2) only require them to provide arrestee and incident information on a daily basis, as opposed to responding to requests for specific arrestee information.
However, in amending the Public Records Act in 1982 to include the requirement that arrestee information be released, as well as incident reports, the legislature sought to “extend public access to information contained in agency records … themselves exempted from disclosure by section 6254, subdivision (f). The amendments are in keeping with the original, shared purpose of the CPRA and FOIA to provide public access to government information.” S. Coast Newspapers v. City of Oceanside, 160 Cal.App.3d 261, 269 (1984).
There may be temporal limits, however, to the release of such information. The California Court of Appeal has held that law enforcement agencies are only required to disclose information related to “contemporaneous police activity.” County of Los Angeles v. Sup. Ct., 18 Cal.App.4th 588, 599 (1993). Although the court does not outline any particular test on what the outer time limits are for the release of such information, it does suggest that where the arrestee is in custody, or, if not in custody, the arrestee is still under investigation and/or may be charged (or already has been charged) with a crime, that would constitute “contemporaneous police activity.” at 595-96.
Thus, if you had suspicion that a certain sports figure had been arrested recently, one would expect that information related to that arrest would be released if police are still investigating the incident and charges are either pending or have been filed (subject, of course, to the restrictions in subdivision (f) mentioned above related to endangerment of individuals or the investigation). Even if an individual was arrested, booked, and released with no prospect of charges being filed by the D.A., it would seem that arrest information should be released by police given that this is not 10-year-old information being sought by the reporter (as was the case in County of Los Angeles), but information that is probably easily accessible from the police agency or county jail, especially given today’s computer age.
Also, given the mechanism provided for in the Public Records Act for obtaining information from the government, i.e., submitting an oral or written request specifying the type of information sought, as provided for in Gov’t Code section 6253(b), it would seem that providing a P.D. with the name and date of birth of an individual for which the reporter seeks arrest information would require the agency to release any arrest information that it had on that individual, especially when that information is relatively accessible and clearly required to be disclosed to the public under section 6254(f)(1).
That said, I did not come across any case where this specific issue was litigated, and there are likely many police and sheriff’s departments out there blocking such information from being released. I hope that you are able to use the information provided above to convince any difficult PIO you are dealing with that such information is required to be released, no matter when or how it is requested.