In August 2009, Phillip Garrido was arrested for kidnapping a young girl, holding her hostage for 18 years, and repeatedly sexually assaulting her, producing two children. For the 10 years prior to his arrest, Garrido was under the parole supervision of California's Department of Corrections and Rehabilitation (CDCR) which failed to discover either parole violations by Garrido or the existence of his victims. The discovery of the kidnapping victim and her children and the arrest of Garrido and his wife
The Sacramento Bee, KCRA, and the San Francisco Chronicle made various requests under the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.) to CDCR and OIG for information relating to Garrido's parole. For the most part, these requests were denied. The Sacramento Bee, KCRA and the San Francisco Chronicle petitioned the superior court for a writ of mandate to compel disclosure of documents relating to CDCR's parole supervision of Garrido. The superior court granted the petition and ordered CDCR and OIG to comply with the CPRA requests or to prepare a list of documents deemed privileged and submit it to the court for in camera review.
OIG and Inspector General David Shaw petitioned this court for an extraordinary writ and an immediate stay to compel the superior court to vacate its order compelling production of OIG's investigative files. We granted the immediate stay and issued an alternative writ of mandate. Petitioners contend the superior court erred in ordering disclosure. They contend the court (1) failed to interpret Penal Code section 6131, subdivision (c) properly; (2) failed to apply the exemption of Government Code section 6254, subdivision (f); (3) failed to conduct the proper balancing under Evidence Code section 1040; (4) erred in ordering peace officer personnel records be presented for in camera review; and (5) erred in ordering other privileged materials be presented for in camera review.
We grant the petition. We agree with petitioners' first and second contentions and find it unnecessary to consider the rest. We conclude that Penal Code section 6131, rather than requiring disclosure as the superior court found, gives the Inspector General complete discretion whether to disclose investigative materials underlying OIG's report. Government Code section 6254, subdivision (f), which exempts from disclosure under CPRA investigative files compiled for correctional purposes, is applicable to the underlying investigative materials at issue here. The superior court erred in ordering disclosure or in camera review of OIG's investigative materials.
In 1977, Garrido was convicted in federal court of kidnapping a woman and in Nevada state court of raping her. He was sentenced to 50 years in
During this period, Garrido and his wife lived with Garrido's mother in Antioch, California. In 1991, while on federal parole, Garrido allegedly kidnapped a girl and brought her to the Antioch residence. In 1999, federal authorities terminated Garrido's parole, with a commendation for his positive response to parole supervision and his personal accomplishments. In 1999, because Garrido was living in California, CDCR assumed parole supervision of Garrido under the Interstate Compact for Adult Offender Supervision.
In August 2009, Garrido came to the attention of a University of California, Berkeley, police officer, who was alarmed by his peculiar behavior and the disquieting presence of two young girls. That contact led, eventually, to the discovery of Garrido's victims and the arrest of Garrido and his wife on various felony charges. Garrido is alleged to have kidnapped a young girl and to have held her hostage for 18 years. During that time, Garrido is alleged to have sexually assaulted the girl repeatedly, resulting in the birth of two daughters. The three victims were allegedly held in makeshift structures in the rear of the Antioch property.
The case generated considerable media attention and OIG became aware of it. Pursuant to its authority under Penal Code section 6126, OIG conducted an investigation of CDCR's parole supervision of Garrido. OIG issued a public special report of its investigation in November 2009.
OIG's special report "shine[d] a public light on systemic problems that transcend Garrido's case and jeopardize public safety." The special report concluded CDCR failed to (1) adequately classify and supervise Garrido; (2) obtain key information from federal parole authorities; (3) properly supervise parole agents; (4) properly use GPS information, which gave the public a false sense of security about GPS monitoring; (5) take advantage of opportunities to determine Garrido was violating the terms of his parole; (6) refer Garrido for mental health assessment; (7) train parole agents to conduct parolee home visits; and (8) take advantage of opportunities to discover the existence of Garrido's three victims. With respect to the missed opportunities to discover the victims, the special report found CDCR failed to investigate clearly visible utility wires from Garrido's house to the concealed compound or the presence of a 12-year-old girl during a home visit; further,
Almost immediately after Garrido's arrest, Sam Stanton, a reporter for The Sacramento Bee, submitted a CPRA request for information to CDCR. Stanton sought access to Garrido's parole files, the names of his parole agents, records and dates of parole visits to Garrido's home and Garrido's visits to parole offices, records of parole searches, and written policies regarding the timing and frequency of parole visits. CDCR denied access to much of this information, except public portions of Garrido's parole file.
Lynsey Paulo, a reporter for KCRA-TV, made a similar request to CDCR under the CPRA. She requested the complete record of supervision of Garrido, records of any Penal Code section 290 sweeps of his residence, and information relating to any parole searches of Garrido and his property. CDCR denied the request, except for the public portion of Garrido's parole file, which had been released.
A reporter for the San Francisco Chronicle made an oral request to CDCR for CDCR's internal review of its supervision of Garrido. CDCR did not produce the document.
KCRA also made a CPRA request to OIG for Garrido's parole file. OIG denied this request, but did release copies of the articles of incorporation of Garrido's corporation, "GODS Desire."
After OIG's special report was issued, Stanton made a CPRA request to OIG to review and copy "all documents, interviews, emails and correspondence received and generated" by OIG regarding the special report. The request was denied.
These three media entities, The Sacramento Bee, KCRA and the San Francisco Chronicle, petitioned the superior court for a writ of mandate to compel CDCR and OIG to disclose the records requested.
OIG opposed the petition, arguing all the records sought were specifically exempt from disclosure under the CPRA under various statutes. OIG also argued important public policy considerations mandated nondisclosure. OIG needed confidentiality in order to conduct its investigative operations.
The superior court issued a lengthy tentative decision. In determining whether the records sought were exempt from disclosure, the superior court construed each statutory exemption narrowly. It determined the records sought were not entirely exempt from disclosure. OIG and CDCR were directed to prepare a list, formatted as a privilege list, of those documents they asserted were exempt from disclosure as peace officer personnel records, confidential medical or psychological records, or criminal offender record information and the CDCR case management review. The list and the actual documents were to be presented to the court for in camera review. The court ordered OIG and CDCR to comply, by February 12, 2010, with the request for all documents not submitted for in camera review.
After oral argument, the court confirmed the tentative ruling.
On February 11, 2010, OIG and the Inspector General petitioned this court for an extraordinary writ and immediate stay of the superior court's order.
OIG is an independent state entity responsible for overseeing CDCR. (Pen. Code, § 6125 et seq.) The Inspector General is appointed by the Governor, subject to confirmation, for a six-year term and may not be removed except for good cause. (Pen. Code, § 6125.) OIG reviews policies and procedures of CDCR and conducts audits and investigations of CDCR at the request of the Secretary of CDCR or a member of the Legislature, or at the initiation of the Inspector General. (Pen. Code, § 6126, subd. (a)(1).) OIG may also receive
The broad power of OIG to conduct investigations includes access to and authority to examine books and records of CDCR and to conduct confidential interviews of any CDCR employee. (Pen. Code, § 6126.5.)
Upon completion of an investigation, the Inspector General "shall prepare a complete written report, which shall be held as confidential and disclosed in confidence, along with all underlying investigative materials the Inspector General deems appropriate, to the Governor, the Secretary of the Department of Corrections and Rehabilitation, and the appropriate director, chair, or law enforcement agency." (Pen. Code, § 6131, subd. (b).)
The Inspector General shall also prepare and release a public investigative report. (Pen. Code, § 6131, subd. (c).) "The public investigative report shall differ from the complete investigative report in the respect that the Inspector General shall have the discretion to redact or otherwise protect the names of individuals, specific locations, or other facts that, if not redacted, might hinder prosecution related to the investigation, or where disclosure of the information is otherwise prohibited by law, and to decline to produce any of the underlying investigative materials." (Ibid.)
It is the disclosure of the investigative materials underlying the special public report of CDCR's parole supervision of Garrido that is at issue in this case. As we explain, the broad authority of OIG to conduct investigations into alleged malfeasance in sensitive cases includes unfettered discretion to determine what investigative materials shall be withheld from the Governor, the Secretary of CDCR, other law enforcement officials and the public.
In enacting the CPRA, "the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (Gov. Code, § 6250.) The CPRA provides: "every person has a right to inspect any public record, except as hereafter provided." (Gov. Code, § 6253, subd. (a).) "In other words, all public records are subject to disclosure unless the Legislature has expressly provided to the contrary." (Williams v. Superior Court (1993) 5 Cal.4th 337, 346 [19 Cal.Rptr.2d 882, 852 P.2d 377].)
"With the passage of Proposition 59 effective November 3, 2004, the people's right of access to information in public settings now has state
Government Code section 6254 sets forth a number of exemptions from disclosure under the CPRA. Under subdivision (f), no disclosure is required of records that are: "Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the California Emergency Management Agency, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes." As explained below, we find that exemption applicable here.
Petitioners contend Penal Code section 6131 gives the Inspector General complete discretion whether to disclose underlying investigative materials. They contend the superior court misconstrued that section in determining that such materials were not exempt from disclosure.
Penal Code section 6131, subdivision (a) involves audits by OIG. It requires OIG to disclose a written report, "along with all underlying materials the Inspector General deems appropriate," to the Governor, the Secretary of CDCR and others. Copies of the report are to be posted on OIG's Web site
The superior court found this exemption did not apply because subdivision (b) of Penal Code section 6131 had to be read in conjunction with subdivision (c) of the same section. Subdivision (c) of Penal Code section 6131 provides in part as follows: "Upon the completion of any investigation conducted by the Inspector General, he or she shall also prepare and issue on a quarterly basis, a public investigative report that includes all investigations completed in the previous quarter. The public investigative report shall differ from the complete investigative report in the respect that the Inspector General shall have the discretion to redact or otherwise protect the names of individuals, specific locations, or other facts that, if not redacted, might hinder prosecution related to the investigation, or where disclosure of the information is otherwise prohibited by law, and to decline to produce any of the underlying investigative materials. In a case where allegations were deemed to be unfounded, all applicable identifying information shall be redacted."
The remainder of subdivision (c) of Penal Code section 6131 outlines when the public investigative report shall be made available to the public. It also specifies for different situations what additional information, such as a State Personnel Board order, settlement information or a decision not to pursue disciplinary or criminal proceedings, must be attached to the public investigative report on OIG's Web site. (Pen. Code, § 6131, subd. (c)(1)-(6).)
The superior court interpreted Penal Code section 6131 to permit the Inspector General to withhold underlying investigative materials from disclosure under either subdivision (b) or (c) only if their disclosure might hinder prosecution or is otherwise prohibited by law. In so construing Penal Code section 6131, the superior court erred.
As the syntax of the subdivision indicates, the qualifying phrase "might hinder prosecution," modifies only the Inspector General's discretion to redact certain identifying information; it does not modify the Inspector General's complete discretion to withhold all underlying investigative materials.
Real parties in interest, the media companies, contend the superior court correctly found that the discretion to withhold underlying investigative materials was modified by whether such disclosure "might hinder prosecution." They contend petitioners' construction is inconsistent with the last antecedent rule. We disagree.
"A longstanding rule of statutory construction—the `last antecedent rule'— provides that `qualifying words, phrases and clauses are to be applied to the
The interpretation advanced by petitioners also comports with the statutory framework as a whole. (See Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224] [a particular clause or section should be considered in the context of the statutory framework as a whole].) Under both subdivisions (a) and (b) of Penal Code section 6131, the Inspector General has discretion as to what underlying investigative materials are disclosed to the Governor and other officials. The Inspector General's reports for both audits and investigations shall include all underlying investigative materials the Inspector General deems appropriate. (Pen. Code, § 6131, subds. (a) & (b).) Under subdivision (b), the complete investigative report "shall be held as confidential and disclosed in confidence."
The interpretation advanced by real parties in interest would require the public disclosure of material the Legislature has deemed confidential and grant the public access to underlying investigative materials as to which the Legislature has expressly given the Inspector General discretion to withhold from the Governor, the Secretary of CDCR, and other law enforcement officials who are in a position to act upon the Inspector General's findings. We reject an interpretation of a statute that leads to absurd results.
Further, the statutory framework reveals the confidential nature of OIG investigative materials. Penal Code section 6126.3, subdivision (c) provides that the complete investigative report of Penal Code section 6131, subdivision (b) is not a public record. The same subdivision also provides
The confidentiality of OIG's work is emphasized in Penal Code section 6126.4. That section makes it a misdemeanor "to divulge or make known in any manner not expressly permitted by law to any person not employed by the Inspector General any particulars of any record, document, or information the disclosure of which is restricted by law from release to the public."
Although the Legislature did not specify in Penal Code section 6126.3 that underlying investigative materials are not public records, it did expressly grant the Inspector General unfettered discretion as to the disclosure of such materials. Penal Code section 6131, subdivision (b) grants the Inspector General discretion whether to disclose such materials to the Governor and other officials along with the complete report of the investigation; the complete report shall include "all underlying investigative materials the Inspector General deems appropriate." Penal Code section 6131, subdivision (c) expressly permits the Inspector General, with respect to the public report, "to decline to produce any of the underlying investigative materials." Construing these statutes to require OIG and the Inspector General to disclose the underlying investigative materials pursuant to a CPRA request would render those provisions giving the Inspector General discretion over disclosure of such materials mere surplusage and of no effect. We decline to adopt an interpretation that reads words out of the statute because it is counter to basic rules of statutory construction.
It is a maxim of statutory construction that "Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage." (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22 [56 Cal.Rptr.2d 706, 923 P.2d 1].) Under general rules of statutory interpretation, an interpretation which has the effect of making statutory language null and void is to be avoided. (People v. Woodhead (1987) 43 Cal.3d 1002, 1010 [239 Cal.Rptr. 656, 741 P.2d 154]; Prager v. Isreal (1940) 15 Cal.2d 89, 93 [98 P.2d 729].)
Here OIG launched an investigation into the parole supervision of Garrido by CDCR, a very high profile case. OIG's task was to determine whether CDCR's parole policies were adequate and whether they were followed in this instance. Accordingly, the prospect of enforcement proceedings was
This is not a situation like that presented in Uribe v. Howie (1971) 19 Cal.App.3d 194 [96 Cal.Rptr. 493]. There, a farmworker who had physical disorders she suspected were caused by crop pesticides sought permission to inspect monthly pesticide spray reports. The trial court found the reports exempt under Government Code section 6254, subdivision (f) as investigatory files compiled for correctional, law enforcement or licensing purposes. (Uribe v. Howie, supra, at p. 212.) The appellate court disagreed. While the spray reports may have been used in reviewing licenses, that was not the primary purpose for which they were compiled, nor were they currently being put to that use. (Id. at p. 213.) Here, by contrast, the materials real parties in interest seek were compiled and used primarily, if not exclusively, in the conduct of OIG's investigation of CDCR.
Since we find the underlying investigative materials are exempt from disclosure under CPRA pursuant to Government Code section 6254, subdivision (f), we need not address petitioners remaining contentions that assert other exemptions from disclosure.
The alternative writ is discharged. The petition for a peremptory writ of mandate is granted. The Superior Court of Sacramento County is directed to set aside its order of February 5, 2010, compelling OIG and the Inspector General to disclose investigative files to The Sacramento Bee, KCRA, and the
Blease, Acting P.J., and Hull, J., concurred.