BERLINER COHEN LLP Celebrating 50 Years ANDREW L. FABER PEGGY L. SPRINGGAY SAMUEL L. FARE 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 BRIAN 1. SHETLER HARRY A. LOPEZ CHARLES W. VOLPE CHRISTINE H. LONG AARON M. VALENTI CHRISTIAN E. PICONE SUSAN E. BISHOP SANDRA G. $EPULVEDA MICHAEL B. IJAMS KIMBERLY G. FLORES DAWN C. SWEATY TYLER A. SHEWEY JAMES F. IANDRUM, JR. TEN ALMADEN BOULEVARD ELEVENTH FLOOR SAN JOSE, CALIFORNIA 951 13-2233 TELEPHONE: (408) 286-5800 FACSIMILE: (408) 998-5388 www.berliner.com THOMAS P. MURPHY ALESHIA M. WHITE EILEEN P. KENNEDY MICHAEL J. CHENG ALEXANDRIA N. NGUYEN GHAZALEH MODARRESI ANN HANSON BEAU C. CORREIA TIMOTHY K. BOONE ANGELA HOFFMAN DAVID A. BELLUMORI ISABELLA L. SHIN BENJAMIN M. JOHNSON STEPHEN C. SCORDELIS JUSTIN D. PRUEITT ANTHONY DeJAGER ELLEN M. TAYLOR CYNTHIA M. CHU BRANDON L. REBBOAH LINDSAY I. HOVER EMILY TEWES CHRISTIAN SIMON Branch Offices Merced, CA • Modesto, CA OF COUNSEL RETIRED SANFORD A. BERLINER SAMUEL J. COHEN HUGH L. ISOLA ROBERT W. HUMPHREYS STEVEN L. HALLGRIMSON FRANK R. UBHAU$ ERIC WONG ROBERT L. CHORTEK JOSEPH E. DWORAK JEFFREY S. KAUfMAN RALPH J. SWANSON NANCY L. BRANDY LESLIE KALIM McHUGH March 4, 2019 VIrI EMAIL ONLY 1isa Fernandez Digital Reporter/Producer KT'VU lisa.fernandez@foxtv.com Re: California Public Records r~ct Request, dated January 17, 2019 Dear Ms. Fernandez: On behalf of the City of Gilroy ("City"), this letter is a supplemental response to your request made pursuant to the California Public Records Act ("PRA") undeY Government Code Section 0250 et seq. and the Gilroy Open Government Ordinance ("OGO"), under Gilroy City Code, Chapter 17r~, received by the City on January 17, 2019. On February 7, 2019, the City provided a timely, written response to your PRA request, in accordance with GoveYnment Code section 6253, and OGO section 17A.25. This letter asserts further exemptions from disclosure of records related to your request. Records Related to an Incident that is the Subject of an Active .Administrative Investigation California Penal Code section 832.7(b)(7)(C) states: "During an administrative invesrigation into an incident described in subparagraph (r1) of paragraph (1), the agency may delay the disclosure of records or information until the investigating agency determines whether the use of force violated a law or agency policy, but nn longer than 180 days after the date of the employing agency's discovery of the use of force, or allegation of use of force, by a person authorized to initiate an investigation, or 30 days after the close of any criminal investigation related to the peace officer or custodial officer's use of force, whichever is later." Here, pursuant to California Penal Code section 832.7, subdivision (b)(7)(C), any and all responsive public records related to an incident involving discharge of a firearm at a person by a peace officer or custodial officei, or in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury, related to an incident that is the subject of an ongoing administrative investigation, where 30 days has not passed since the close of the related criminal 4831-5541-9529v1 CCHU104706098 Lisa Fernandez KTVU March 4, 2019 investigation of the officer's use of force, will be withheld unti130 days after the close of that criminal investigation. (Godt Code ~~ 6254(k) and 832.7(b)(7)(C); OGO ~ 17r~.27.) Weighing and Balancing the Public Interest California Government Code section 6255 provides the City the authority to justify withholding any record "that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." Here, responsive public records that pre-date 2019 are withheld under this section, because application of SB 1421 requires further guidance from either the courts or the Iegislature. Several cases currently pending in the California superior courts continue to raise the issue whether SB 1421 requires the disclosure of records relating to conduct occurring before Janua~~ 1, 2019, which is the effective date of SIB 1421. Until the legal question of retroactive application of the statute is resolved Uy the courts or the Legislature, the public inteiest in accessing these records is clearly outweighed by the public's interest in protecting privacy rights. (Gov't Code ~ 6255.) Therefore, we will not disclose any responsive public records that pre-date January 1, 2019, at this time. To the extent that the City has provided responsive and non-privileged public records and/or information the City maintains and has in its possession, your PRr~ request has been satisfied. If there are other public records you wish to review under the PR~~ 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 PRi~, will be made available. If you have further information or authority which you believe would require disclosure of additional records under. the PRt1, I would be happy to review that information and/or authority. Very truly yours, BI~RLINFR COHEN, L~.1~ ,, J ~ ~ ISTO Assistant City Attorney, City of Gilroy E-l.Iail: jolie.houston@berliner.com Jx cc: Shawna Freels, City C1eYk Scot Smithee, Police Chief LeeAnn McPhillips, Human Resources Director/Risk Manager 4831-5541-9529v1 CCHU104706098 _2_