', •

BRIAN L. SHETLER
HARRY A. LOPEZ
CHARLES W. VOLPE
CHRISTINE H. LONG
AARON M. VALENTI
CHRISTIAN E. PICONE
SUSAN E. BISHOP
SANDRA G. SEPULVEDA
MICHAEL B. DAMS
KIMBERLY G. fLORES
DAWN C. SWEATY
TYLER A. SHEWEY
JAMES F. LANDRUM, JR.

ANDREW L. FABER
RALPH J. SWANSON
PEGGY L. SPRINGGAY
JOSEPH E. DWORAK
SAMUEL L. FARB
JAMES P. CASHMAN
STEVEN J. CASAD
NANCY J. JOHNSON
JEROLD A. REITON
JONATHAN D. WOLF
KATHLEEN K. SIPLE
KEVIN F. KELLEY
MARK MAKIEWICZ
JOLIE HOUSTON

~ i

■

TEN ALMADEN BOULEVARD
ELEVENTH FLOOR
SAN JOSE, CALIFORNIA 95 1 1 3-2233
TELEPHONE: (408) 286-5800
FACSIMILE: (408) 998-5388

t

THOMAS P. MURPHY
ALESHIA M. WHITE
EILEEN P. KENNEDY
MICHAEL J. CHENG
ALEXANDRIA N. NGUYEN
GHAZALEH MODARRESI
BEAU C. CORREIA
TIMOTHY K. BOONE
ANGELA HOFFMAN
DAVID A. BELLUMORI

ISABELLA L. SHIN
BENJAMIN M. JOHNSON
STEPHEN C. $CORDELI$
JUSTIN D. PRUEITT
ANTHONY DeJAGER
ELLEN M. TAYLOR
CYNTHIA M. CHU
BRANDON L. REBBOAH
LINDSAY I. HOVER
EMILY TEWES

www.berliner.com
Branch Offices
Merced, CA •Modesto, CA

OF COUNSEL

RETIRED
SANFORD A. BERLINER
SAMUEL J. COHEN
HUGH L. ISOLA

STEVEN L. HALLGRIMSON
(RANK R. UBHAU$
ERIC WONG

ROBERT W. HUMPHREYS
ROBERT L. CHORTEK

JEFFREY S. KAUFMAN
NANCY L. BRANDY
LESLIE KALIM McHUGH

February 7, 2019
VIA EMAIL ONLY
Lisa Fernandez
Digital Reporter/Producer
KT'VU
lisa. fexnandez@foxty.com
Re:

California Public Records Act Request, received on January 17, 2019

Dear Ms. Lisa Fernandez:
On behalf of the Ciry of Gilroy ("City"), this letter is in response to your request made pursuant
to the California Public Records Act ("PRA") under Government Code Section 6250 et seq. and the
Gilroy Open Government Ordinance ("OGO"), under Gilroy City Code, Chapter 17A, received by the
City on January 17, 2019.On January 29, 2019, the Ciry responded, and due to the voluminous nature of
the records requested and the need for additional time to compile and assess these records, requested an
extension of time in accordance with PRA section 6253 and OGO section 17A.25. This letter serves as
the City's written response to your PRA request, provided in a timely manner in accordance with
Government Code section 6253, and OGO section 17A.25.
You requested the following records and information:
7. The names and report~~ of o~cerr involved in police or deputy misconduct and covered ~.~nder .SB 7427. lY~e ure
seeking records that date back to Jan. 7, 2077 in our initial ~quert. lYfe would like a prompt return of theee recorde•, ur
required by lase. Please include video related to the incident.
2. As thisproce.rr can be time-consuming, the secondpart of our request is askingfor record~-going hack to Jura.
7, 2014. lY/e request that `fart 2"of our requeet 6e made public con~•idering time re.rtrainte•. Please include related video.
3. In addition, please provide hosv many complaintsfrom the prsblic aboutpolice misconduct regardi~rg t/~e items
covered in SB 7427 haveyougotten in this• time period. (Back to Jan. 7, 2077first, and then Guck to,jan. 7, 2074)
4. Flow many department-initiated internal affairs investigations regarding items covered in SB 7427 huveyou
conducted in this time period?

4841-7570-8296v1
CCHU104706098

 Lisa Fernandez
KTVU
February 7, 2019

5. How many claims and la~vrl~it~~ huveyou received and ~~ettled regarding the items covered in S.B 742 / in the
same time period?
Any responsive and non-privileged public records that fulfill your PRA request that the City
maintains and has in its possession, that are not otherwise exempt, will be electronically sent to you
commencing on March 4, 2019, and will continue until completed. Please be aware that the City is in the
process of diligently searching for redaction software that can efficiently redact video and audio
recordings. As a result, we will produce any videos and audio recordings that require redaction after the
City has secured effective redaction tools, within a reasonable amount of time under the circumstances.
While the PRA requires public agencies to provide access to their e~sting public records, it does
not require them to create new records to satisfy a request. (Sander a Superior CoTsrt (2018) 26 Cal. App.
5th 651, 665-66.) However, in order to assist you, in accordance with PRA section 6253.1 and OGO
section 17A.20(c), we provide here a summary of certain information, below, pursuant to your request
related to complaints, department-initiated internal affairs investigations, and claims and lawsuits during
the requested period:
The City did not receive any complaints from the public about police misconduct regarding the
items covered in SB 1421, between January 1, 2014 to the present.
The City conducted three (3) department-initiated internal affairs investigations regarding items
covered in SB 1421 between January 1, 2014 to the present.
The City did not receive and settle any claims or lawsuits regarding the items covered in SB
1421, between January 1, 2014 to the present.
Regarding any responsive public records withheld or redacted, the City sets forth below the
following exemptions provided under the PRA and OGO:
The PRA specifically exempts from disclosure: "Records, the disclosure of which is exempted or
prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence
Code relating to privilege." (Gov't Code ~ 6254(k); OGO ~ 17A.27.) If records contain information that
must be disclosed along with information that is exempt from disclosure, the portion of the record that
must be disclosed, if "Yeasonably segregable," must be provided for inspection but only "after deletion
of the portions that are exempted by law." (Gov't Code ~ 6253(a); OGO ~ 17A.20(a).) These exemption
rules under the PRA and OGO apply to the bases for exemption, asserted below.
Records Related to an Incident that is the Subject of an Active Criminal Investigation
California Penal Code section 832.7(b)(7)(A) states: "An agency may withhold a record of an
incident described in subparagraph (A) of paragraph (1) that is the subject of an active cruninal
investigation," under the condition that, "disclosure maybe delayed for up to 60 days from the date the
use of force occurred," and "[a]fter 60 days from the use of force, the agency may continue to delay the
disclosure of records or information if the disclosuYe could reasonably be expected to interfere with a
criminal enforcement proceeding against an officer who used the force." Section 832.7(b)(7)(A)(u)
further states: "Information withheld by the agency shall be disclosed when the specific basis for

4841-7570-8296v1
CCHU104706098

_2_

 Lisa Fernandez
KTVU
February 7, 2019

withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18
months after the date of the incident, whichever occurs sooner."
Here, pursuant to California Penal Code section 832.7, subdivision (b)(1)(A)(ii), responsive
public records related to an incident involving use of force by a peace officer or custodial officer, that is
the subject of an active criminal investigation, have been withheld because disclosure could reasonably
be expected to interfere with a criminal enforcement proceeding against the officer or officers who used
the force, and less than 18 months have passed since the date of the incident. (Gov't Code ~ 6254(k);
OGO ~ 17A.27.) In accordance with California Penal Code section 832.7, subdivision (b)(1)(A)(u), the
City will "at 180-day intervals as necessary, provide, in writing, the specific basis for the agency's
determination that disclosure could reasonably be expected to interfere with a cYitninal enforcement
proceeding."
Personal Data or Information
California Penal Code section 832.7(b)(5) requires that the City redact a record "to remove
personal data or information. . . other than the names and work-related information of peace and
custodial officers," and to "preserve the anonymity of complainants and witnesses." (Gov't Code ~
6254(k); OGO ~ 17A.27.) In addition, that same section protects information from disclosuYe that
"would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public
interest in records about misconduct and serious use of force by peace officers and custodial officers."
(Gov't Code ~ 6254(k); OGO ~ 17A.27; Pen. Code ~ 832.7(b)(5).)
Here, the public records disclosed have been redacted to remove personal data or information,
including but not limited to the names, faces, and other personal identifying information of
complainants, victims, and witnesses. (Gov't Code ~ 6254(k); OGO ~ 17A.27; Pen. Code ~ 832.7(6)(5).)
Attorney-Client Communications
The attorney client privilege is an evidentiary rule that protects from disclosure the entirety of
confidential communications between attorney and client, including factual and other information not in
itself privileged outside of attorney client communication. (See Cal. Evid. Code 1954; Costco lYlhole~~ale
Corporation a Superior Court (2009) 47 Ca1.4th 725; .Fireman's .Fund Insurance Company v. Superior Court (2011)
196 Ca1.App.4th 1263.)
Therefore, any confidential communications related to your requests set forth above between
the City Attorney and officers, agents or representarives of the City, including but not limited to City
staff, the Mayor, City Councilmembers, as well as any other attorney within the same firm, will be
withheld or redacted to protect from disclosure any attorney-client communications. (Gov't Code ~
6254(k); OGO ~ 17A.27.)
No Duty to Create a Privilege Log
The PRA does not require that the City create a privilege log or a list that identifies the specific
records being withheld. The City's response only needs to identify the legal grounds for nondisclosure.
(Haynie a Superior Court (2001) 26 Cal.4th 1061.)

4841-7570-8296v1
CCHU104706098

_3 _

 Lisa Fernandez
KTVU
February 7, 2019

To the extent that the City has provided all responsive and non-privileged public records the
City maintains and has in its possession, your PRA request has been satisfied. If there are other
public records you wish to review under the PRA that are not covered by the City's response, please
clarify your request. Records in response to your clarified request, if they exist and are subject to
disclosure under the PRA, will be made available. If you have further information or authority
which you believe would Yequire disclosure of additional records under the PRA, I would Ue happy
to review that information and/or authority.

Very truly yours,
BERL

ER COHEN, LLP

JOL
O S ON • ~.
Assistant City Attorney, City of Gilroy
E-Mail: jolie.houston@berlinex.com
JH
cc:

Shawna Freels, City Clerk
Scot Smithee, Police Chief
LeeAnn McPhillips, Human Resources Director/Risk Manager

4841-7570-8296v1
CCHU104706098

_4_