TO: RULES AND OPEN
GOVERNMENT COMMITTEE
FROM: Sarah Zárate
SUBJECT: Public Records Appeal –
Thomas McInnis
DATE: February 5, 2025
Approved Date:
2/5/2025
RECOMMENDATION
Deny the appeal from Thomas McInnis (Requestor) regarding the City’s response to his Public Records Act request.
BACKGROUND
On November 16, 2023, the City received a Public Records Act request from the Requestor, in which he asked for: “…any and all vehicle postings, notes, files, reports, testimony, emails, texts, voicemails, documents, and photographs, and dash cams or body cam videos and any other information or legal justification pertaining to this illegal tow of my vehicle(s) by SJPD Badge #4867 and Case # 23-317-0492 and permit # 23- 931. Also provide me with the name of SJPD Badge #4867 and all pages of Case #23- 317-0492 and all pages of permit # 23-931.” This request was routed to the Department of Transportation and the Office of the Independent Police Auditor, then finally forwarded for appropriate processing to the San José Police Department (SJPD) on April 12, 2024. This request is attached as Exhibit A. This request was clarified after a series of back-and-forth communications from May 16, 2024 to May 17, 2024.
On May 17, 2024, SJPD responded to the request by providing the name of the requested badge number, and offering to provide a synopsis of the tow event. SJPD also withheld remaining responsive records as records of investigation under California Government Code §§ 7923.600(a) and 7923.605(a). This response is attached as Exhibit B. The Requester later requested and received the synopsis of the tow.
On June 3, 2024, SJPD confirmed possession of a California Highway Patrol (CHP) 180 form as responsive to the request and asserted it was exempt pursuant to County of Los Angeles v. Superior Court (2015) 242 Cal.App.4th 475. SJPD also reiterated that the requested records were exempt as investigative files under California Government Code §§ 7923.600 and 7923.605. This communication is attached as Exhibit C.
RULES AGENDA: 2/12/25
ITEM: C.1
RULES AND OPEN GOVERNMENT COMMITTEE
February 5, 2025
Subject: Public Records Appeal – Thomas McInnis
On June 12, 2024, the Requestor appealed the June 3, 2024 response to the Open Government Manager. This appeal is attached as Exhibit D.
On September 19, 2024, the Open Government Manager closed the appeal, confirming one of the requested records is a record of investigation under California Government Code §§ 7923.600 and 7923.605 and may be withheld from disclosure. Additionally, the Open Government Manager confirmed the CHP 180 form was exempt from disclosure; however, this appeal letter noted that staff should have asserted its exemption under California Government Code § 7927.705, as a record exempt under state law (i.e., the aforementioned case law). This appeal response letter is attached as Exhibit E.
On September 24, 2024, the Requester indicated his desire to appeal this letter response from the Open Government Manager. This second appeal is attached as Exhibit F. Staff recently clarified it only possesses body worn camera footage, along with the CHP 180 form, and both are being withheld pursuant to this particular request and appeal. SJPD does not possess any additional requested records. Additionally, the Requestor has made several Public Records Act requests to the City, including SJPD and the Department of Transportation, related to this tow incident. This appeal is limited to the SJPD request discussed above.
ANALYSIS
The Requestor is appealing the City’s decision to withhold the body worn camera footage and the CHP 180 form.
Records of investigations conducted by a local police agency, or investigatory files complied by a local police agency, may be withheld under California Government Code § 7923.600. Certain types of information relating to specifically listed crimes, housed in these otherwise exempt records, must be disclosed to certain recipients as listed in California Government Code § 7923.605, except where disclosure would endanger the completion of an investigation. These specific crimes are limited to arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by § 13951(b) (California Government Code § 7923.605(a)). SJPD confirmed the underlying incident was logged as a parking violation, and no qualifying “crime” or “incident” occurred. SJPD advised that both the body worn camera footage and CHP 180 form remain categorized as investigatory files, which may be withheld under California Government Code § 7923.600.
California Government Code § 7927.705 permits an agency to withhold a record that is exempted or prohibited from disclosure under state or federal law. CHP 180 forms are exempt under the Public Records Act because they contain personal information pulled from records belonging to the California Department of Motor Vehicles, and this information can only be retrieved by statutorily authorized agencies (i.e., law
RULES AND OPEN GOVERNMENT COMMITTEE
February 5, 2025
Subject: Public Records Appeal – Thomas McInnis
enforcement) (County of Los Angeles v. Superior Court (2015) 242 Cal.App.4th 275, 484)).
Based on the foregoing, the Administration recommends the Rules and Open Government Committee uphold the Open Government Manager’s decision on appeal to continue SJPD’s withholding of the relevant records pertaining to the request for tow records.
COORDINATION
This memorandum was coordinated with the City Attorney’s Office and SJPD.
Sarah Zárate
Director, City Manager’s Office of
Administration, Policy, and
Intergovernmental Relations
The principal author of this memorandum is Jessica Lowry, Senior Executive Analyst, Open Government Manager, City Manager Office of Administration, Policy, and Intergovernmental Relations. For questions, please contact [email protected].
ATTACHMENTS
Exhibit A - Original Public Records Act Request
Exhibit B - Response from SJPD dated May 17, 2024
Exhibit C - Confirmation of CHP 180 Form dated June 3, 2024 Exhibit D - Official Appeal Request dated June 12, 2024 Exhibit E - Open Government Manager Appeal Response dated September 19, 2024 Exhibit F - Official Second Appeal Request dated September 24, 2024
EXHIBIT A
200 East Santa Clara Street San José, CA 95113 tel (408)535-8100 fax (408) 920-7007 www.sanjoseca.gov Office of the City Manager
September 19, 2024
Thomas McInnis
** Sent Electronically
Dear Thomas McInnis:
This letter is in response to your Public Records Act (PRA) appeal to the Open Government Manager and City Clerk sent on May 31, 2024, pertaining to the City’s response to your November 16, 2023 PRA request. I have reviewed your request and below are my findings:
• According to the San José Police Department (SJPD), the City received your request and entered it into our online GovQA platform on or around November 16, 2023 (tracking number P001078-111623).
• SJPD provided a response to your request on May 16, 2024 requesting clarification on whether or not you were looking for a copy of a tow permit, or other records. This communication is attached as Exhibit A. On May 17, 2024 you replied: “April, I want all the items stated in my request included in your reply, including the tow permits. Lmk when u are gonna provide them since its been 6 months since i made the request???’ These correspondences are attached as Exhibit B.
• On May 17, 2024 SJPD provided a response to your PRA request. First, SJPD reiterated the original request: “This is a public records request to supply me with any and all vehicle postings, notes, files, reports, testimony, emails, texts, voicemails, and photographs, and dash cams and or body cam videos and any other information or legal justification pertaining to this illegal tow of my vehicle(s) by SJPD Badge #4867 and Case # 23-317-0492 and permit # 23-931. Also provide me with the name of SJPD Badge # 4867 and all pages of Case # 23-317-0492 and all pages of permit # 23-931.” Second, SJPD notified you that the records are considered investigatory records and are exempt from public disclosure. This letter is attached as Exhibit C. • On May 20, 2024 you requested a copy of the synopsis of the tow. The City responded same day, notifying you that they have submitted the request for a synopsis from their Operations Support Services Division and will upload the synopsis upon receipt, in
EXHIBIT E
City of San Jose / Office of the City Manager
200 East Santa Clara Street San José, CA 95113 tel (408)535-8100 fax (408) 920-7007 www.sanjoseca.gov addition to notifying you of its availability. On May 25, 2024 the synopsis was provided to you and is attached as Exhibit D.
• On May 28, 2024, you stated you were experiencing issues with access the documents. I personally responded on May 30, 2024 confirming that I have sent the requested records directly to [email protected]. These correspondences are attached as Exhibit E. • On June 3, 2024, SJPD acknowledged possession of a California Highway Patrol (CHP) 180 form as responsive to your PRA request. They advised the Courts held this record is exempt from disclosure under the PRA pursuant to County of Los Angeles v. Sup. Ct. (2015) 242 Cal.App.4th 475. Additionally, staff further clarified that the record was exempt as an investigative record under California Government Code § 7923.600, except perhaps to an entitled party—namely, a victim of an incident or crime as defined under Government Code § 7923.605. Lastly, staff confirmed that the Department of Transportation provided you with related tow records under the separate PRA request you submitted directly to them. The entirety of this correspondence is attached as Exhibit F. • On June 12, 2024, you appealed the June 3, 2024 response through the GovQA platform, in addition to emailing the Clerk’s Office directly. On June 13, 2024, staff confirmed receipt of the appeal. These correspondences are attached as Exhibit G.
I have met with staff for clarification and the City of San José stands by SJPD’s decision to withhold the requested records, notwithstanding the synopsis that SJPD provided and certain requested information relating to the involved officer.
First, under the PRA, Cal. Govt. Code § 7923.600 does not require the disclosure of records of investigations conducted by any local police agency, or investigatory files compiled by a local police agency. Notwithstanding this statutory exemption, certain types of information relating to specifically listed crimes, housed in these otherwise exempt records, must be disclosed to certain recipients as listed in Cal. Govt. Code § 7923.605, except where disclosure would endanger the completion of an investigation. These specific crimes include arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by § 13951(b) (Cal.
Govt. Code § 7923.605(a)).
According to the Police Department, many of the records you seek are investigatory files, which may be withheld under § 7923.600. Disclosure of information contained in these exempt records need only be disclosed to “victims” of a “crime” or “incident” as defined by statute, and listed above, under § 7923.605 subdivision (a). Staff advised the incident referenced in your request was logged as a parking violation only, and no qualifying “crime” or “incident” had occurred.
As such, City may withhold these requested records, pursuant to Cal. Govt. Code §§ 7923.600 and 7923.605, as exempt investigatory files, as determined by April Benoit from the SJPD Research and Development Unit on May 17, 2024. As indicated in Exhibit D, SJPD provided
City of San Jose / Office of the City Manager
200 East Santa Clara Street San José, CA 95113 tel (408)535-8100 fax (408) 920-7007 www.sanjoseca.gov you with the synopsis of the incident. Please let me know if those attachments were viewable, or if you require assistance receiving those.
Second, the PRA permits nondisclosure of records which remain protected pursuant to federal or state law under Govt. Code § 7927.705. California law states that information on the CHP 180 forms may be withheld under the PRA pursuant to Govt. Code § 7927.705, because they contain sensitive personally identifiable information (County of Los Angeles v. Superior Court (2015) 242 Cal.App.4th 275, 483-85). Thus, although SJPD identified a responsive tow record—the CHP 180 form—for your request, it may be withheld pursuant to state law so as to protect the confidential information contained within. This was discussed in SJPD’s June 3, 2024 correspondence to you as shown in Exhibit F. However, staff should have raised the PRA exemption found in Govt. Code § 7927.705.
This letter concludes the City’s response to your appeal and your request is now completed.
Any person who believes that he/she/it has been inappropriately denied access to City of San José public records, may appeal to the City Council Rules and Open Government Committee, or at any time, the requester may file a complaint with the Santa Clara County Superior Court as set forth in the Public Records Act.
For more information on the appeals process, see www.sanjoseca.gov/yourgovernment/departments-offices/office-of-the-city-manager/official-city-records/appeals.
Thank you.
Jessica Lowry, JD
Open Government Manager
City of San José
EXHIBIT A
On 5/16/2024 11:08:30 AM, Jessica Lowry wrote to Thomas McInnis
Subject: [Records Center] Public Records Request - San Jose Police Department ::
P001078-111623
Body:
RE: Public Records Request - San Jose Police Department of November 15, 2023, Reference # P001078-111623
Dear Thomas McInnis,
The City of San Jose received a public information request from you on November 15, 2023. Your request stated:
“Hi,
This is a public records request to supply me with any and all vehicle postings, notes, files, reports, testimony, emails, texts, voicemails, documents, and photographs, and dash cams and or body cam videos and any other information or legal justification pertaining to this illegal tow of my vehicle(s) by SJPD Badge # 4867 and Case # 23-317-0492 and permit # 23-931. Also provide me with the name of SJPD Badge # 4867 and all pages of Case # 23- 317-0492 and all pages of permit # 23-931.
Thx-Tom”
This letter is to clarify what information that you are seeking from the San Jose Police Department.
Staff would like to know if you are looking for a copy of the tow permit, or are you searching for other records?
If you would like for the San Jose Police Department to proceed with your public information request, please provide clarifications within thirty (30) days from
05/16/2024. Otherwise, the San Jose Police Department will consider your request withdrawn.
You may provide a response to the San Jose Police Department by responding to this email.
Upon receipt of your clarification, the San Jose Police Department will further respond to your Public Information Act Request as required by law, including providing you with an estimate of costs associated with producing the requested records.
If you have any questions, please contact my office at 277-5200. Thank you for your attention.
Sincerely,
April Benoit
Analyst II
Police - Research and Development Unit
EXHIBIT B
On 5/17/2024 3:06:05 AM, Thomas McInnis wrote:
TO: "City of San Jose CA Public Records Center"[[email protected]] April, I want all the items stated in my request included in your reply, including the tow permits. Lmk when u are gonna provide them since its been 6 months since i made the request??? Tom
On Thu, May 16, 2024, 11:08 AM City of San Jose CA Public Records Center wrote:
EXHIBIT C
Exhibit D
San Jose Police Depart111e11t
IlUl EAU OF AJ M1NISTR.A Tl ::-JN
OperJrion upport Se1i-ic s Di, ision
San Jo e Police Ca e # 23-317-0492
Type of Incident: Parking Violation
Time & Date of Incident: l l /13/2023 at L3:42
Location of Incident: 500 Block of Sunol St.
Force sed: one
Specialized Re ources : one
Synopsis:
May 25, 2024
Gang Related : NO
On J L/13/2023, at approximately 1342 hour , officer were di patched to the 500 Block of Sunol St. on ai-eport of a parking violation. It wa reported that everal vehicle were parked in permitted con truction area. Officer responded to the cen and had the vehicle towed by AJongi Bros Tow. No arrest wa made and no report wa written.
PRA Form l-1:MBI084 : (PRAS0-2
Sine rely,
PAUL JOSEPH
ACTING CHIEF OF POLICE
Cruz 1342 Sr. PDS
For: Veronica Andrade
Division Manager
Operations Support Service Divi ion
Bureau of Administration
EXHIBIT E
From: PublicRecordsRequest
To:
Subject: PRA Request #P001078
Date: Thursday, May 30, 2024 3:57:00 PM
Attachments: PRAR_Thomas_McInnis_Response_5.17.24.pdf
CAD_23-317-0492.pdf
Good Afternoon:
In response to your correspondence dated May 28, 2024, attached please find the responsive documents.
Thank you,
Jessica Lowry, JD
Open Government Manager
EXHIBIT F
Subject: [Records Center] Public Records Request - San Jose Police Department ::
P001078-111623
Body:
Good afternoon,
The San Jose Police Department has a responsive record referred to as a CHP 180 form that is used to document the vehicle impound and release. The California Courts have held that the CHP 180 form, including the personally identifiable information contained therein, are exempt from disclosure pursuant to County of Los Angeles v. Sup. Ct., (2015) 242 Cal.App.4th 475.
Pursuant to California Government Code Section 7923.605(a), disclosure of records of complaints to, or investigations conducted by, any state or local police agency is not required except to certain interested parties. Said interested parties include victims of a crime, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss. The event was reviewed, and the circumstances of the event do not indicate that a crime had occurred. Therefore, the requested records are exempt from disclosure.
The Department of Transportation (DOT) is the owner of the remaining tow records you are seeking. As previously stated, the request was coordinated with the DOT. The City Manager’s Office confirmed that the DOT responded to your request separately.
To resolve a dispute, you may request a Tow Hearing. The following link has information on how to do so: https://www.sjpd.org/about-us/organization/bureau-of-field-operations/traffic-enforcement-unit/towedvehicle-information If you have concerns about how this incident was handled, you may contact Internal Affairs at : https://www.sjpd.org/aboutus/organization/office-of-the-chief-of-police/internal-affairs or call (408) 277-4094.
Thank you,
April Benoit
Research & Development Unit
San Jose Police Department
EXHIBIT G
From: TO M
Sent: Tuesday, September 12, 2023 4:42 AM
To: City Clerk <[email protected]>
Subject: Fwd: Tow Hearing for Case 23-145-0527 / 8VUZ631 (Re: Request a tow hearing for illegal tow...) Hi,
I was given your info to file an appeal and for info. I would like to appeal the decision on my van being illegally towed that cost me over 2k. Let me know what documents I need to file and with who? Also, this is a public records request to supply me with any and all vehicle posts, notes, files, reports, testimony, emails, texts, voicemails, documents, and photographs or videos and any other information or legal justification pertaining to this illegal tow of my vehicle. Send it to this email address.
Thomas McInnis
You don't often get email from t . Learn why this is important [External Email]
On 6/12/2024 4:45:03 PM, Thomas McInnis wrote:
TO: "City of San Jose CA Public Records Center"[[email protected]] I would like to appeal this decision not to supply my request and also request a tow hearing as well. Lmk-thx-rich
On Mon, Jun 3, 2024, 4:46 PM City of San Jose CA Public Records Center wrote:
On 6/13/2024 1:52:03 PM, April Benoit wrote to Thomas
McInnis (
Subject: [Records Center] Public Records Request - San Jose Police Department ::
P001078-111623
Body:
The City Manager's Office received an appeal for this request and will be coordinating the process.
Thank you.
[External Email. Do not open links or attachments from untrusted sources.] From: Lowry, Jessica
To: Lowry, Jessica
Subject: FW: Tom McInnis
Date: Monday, January 27, 2025 1:01:24 PM
From: TO M < >
Sent: Tuesday, September 24, 2024 5:08 PM
To: PublicRecordsRequest <[email protected]>; Rules and Open Government Committee Agendas <[email protected]>; City Clerk <[email protected]>
Subject: Re: FW: Appeal Fwd: PRA Request #P001078
Can someone let me know what the next steps are? Is there any other appeals or do i have to file a lawsuit in superior court just to get this info? What a shameful process u are putting a citizen thru just to protect ur tyrants in the sjpd!!!
On Thu, Sep 19, 2024, 12:22 PM PublicRecordsRequest
<[email protected]> wrote:
Good Afternoon:
Attached hereto please find correspondence pertaining to your below referenced Public Record Act appeal.
Thank you,
Jessica Lowry, JD
Open Government Manager
City of San Jose
City Manager’s Office
EXHIBIT F
[External Email]
From: TO M >
Sent: Friday, May 31, 2024 2:23 AM
To: City Clerk <[email protected]>
Subject: Appeal Fwd: PRA Request #P001078
I would like to appeal the ridiculous synopsis response lacking any detail info to my PR request for a simple tow by SJPD. An open government employee would send me the info I requested and not try to cover up and protect SJPD!!!
I want my original Request: This is a public records request to supply me with any and all vehicle postings, notes, files,
reports, testimony, emails, texts, voicemails, documents, and photographs, and dash cams and or body
cam videos and any other information or legal justification pertaining to this illegal tow of my
vehicle(s) by SJPD Badge # 4867 and Case # 23-317-0492 and permit # 23-931. Also provide me with
the name of SJPD Badge # 4867 and all pages of Case # 23-317-0492 and all pages of permit # 23-
931.
Lmk when you plan to respond by so I can appeal to the city council and then sue if I have to get access to this information!
---------- Forwarded message ---------
From: PublicRecordsRequest <[email protected]> Date: Thu, May 30, 2024 at 3:57 PM
Subject: PRA Request #P001078
To:
This message is from outside the City email system. Do not open links or attachments from untrusted sources.
This message is from outside the City email system. Do not open links or attachments from untrusted sources.
Good Afternoon:
In response to your correspondence dated May 28, 2024, attached please find the responsive documents.
Thank you,
Jessica Lowry, JD
Open Government Manager