Filed 6/29/26 City of Gilroy v. Superior Court CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CITY OF GILROY, H049552
(Santa Clara County
Petitioner, Super. Ct. No. 20CV362347)
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
LAW FOUNDATION OF SILICON
VALLEY,
Real Party in Interest.
H049554
LAW FOUNDATION OF SILICON (Santa Clara County
VALLEY, Super. Ct. No. 20CV362347)
Petitioner,
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
CITY OF GILROY,
Real Party in Interest.
I. INTRODUCTION
Petitioner Law Foundation of Silicon Valley (Law Foundation) is a “nonprofit
legal services organization whose mission is to advance the rights of under-represented
individuals and families through legal services, strategic advocacy, and educational
outreach.” During its investigation of complaints by homeless persons that their personal
property was being destroyed during cleanups of homeless encampments, the Law
Foundation made numerous public record requests to real party in interest, the City of
Gilroy (City).1
Law Foundation was not satisfied with City’s responses to its public records
requests and filed a petition for writ of mandate and complaint for declaratory relief
alleging that City had violated the California Public Records Act (CPRA; Gov. Code,
§ 7920.000 et seq.)2 In the October 1, 2021 order, the trial court denied the petition for a
writ of mandate and granted declaratory relief in part, finding that City had violated the
CPRA in responding to Law Foundation’s public records requests. However, the trial
court rejected Law Foundation’s request for a declaration that City had violated the
CPRA by failing to preserve responsive records that City claimed were exempt while
Law Foundation’s public records requests were pending.
Both parties filed writ petitions in this court challenging parts of the trial court’s
order. In case No. H049552, City of Gilroy v. Superior Court, City contended that the
trial court had erred in granting declaratory relief, failing to find that Law Foundation’s
claims of CPRA violations were moot, and tentatively finding that Law Foundation is the
prevailing party for purposes of awarding costs and attorney fees. In case No. H049554,
Law Foundation v. Superior Court, Law Foundation argued that the trial court had erred
1
To be consistent with the parties’ terminology in their briefs and in the
proceedings below, we will refer to unhoused persons as homeless.
2
The CPRA was previously codified as section 6250 et seq. and has been
recodified and reorganized as section 7921.000 et seq. All further statutory references
are to the Government Code unless otherwise indicated.
2
in denying Law Foundation’s request for a declaration that the City violated the CPRA by
destroying responsive records after it received the Law Foundation’s CPRA requests.
In our original decision, City of Gilroy v. Superior Court (2023) 96 Cal.App.5th
818 (City of Gilroy I), we determined that (1) the trial court erred in case No. H049552,
City of Gilroy v. Superior Court, by granting declaratory relief on the basis of the court’s
findings that City’s past conduct in responding to Law Foundation’s public records
requests violated the CPRA; and (2) the trial court did not err in case No. H049554, Law
Foundation v. Superior Court, by denying Law Foundation’s request for a declaration
that City violated the CPRA by failing to preserve responsive records it claimed were
exempt while Law Foundation’s public records requests were pending.
The California Supreme Court granted Law Foundation’s petition for review of
our original decision in City of Gilroy I, supra, 96 Cal.App.5th 818 (City of Gilroy v.
Superior Court (2026) 19 Cal.5th 38 (City of Gilroy II) and reversed our decision in part.
In City of Gilroy II, the Supreme Court ruled that “[a]t a minimum, declaratory relief is
available under the CPRA where the declaration would resolve an ongoing dispute
regarding the parties’ rights and obligations in a manner that has some likelihood of
affecting future requests for public records or future conduct relating to such requests.
We therefore reverse and remand for further proceedings consistent with this opinion
insofar as the Court of Appeal construed the statute more narrowly as not providing ‘for
declaratory relief other than to determine a public agency’s obligation to disclose
records.” (Id. at p. 46.)
However, the Supreme Court agreed with this court’s decision in City of Gilroy I,
supra, 96 Cal.App.5th 818 “that the CPRA does not ‘impose a duty upon public agencies
to preserve all documents responsive to a public records request that have been withheld
as exempt’ for a period of three years, commencing from when a public agency invokes a
statutory exemption as a reason to withhold the records. [Citation.] The CPRA, an
otherwise detailed statute, is silent regarding any preservation requirement, suggesting
3
that no such requirement exists. And additional considerations–including the statute’s
legislative history, the broad scope of the preservation obligation argued to exist, and the
presence of retention requirements in other statutes, juxtaposed against the lack of any
such direction here–counsel against recognizing this kind of implied preservation duty.”
(City of Gilroy II, supra, 19 Cal.5th at p. 46.) The disposition states in part that the case
is remanded “to the Court of Appeal for further proceedings consistent with this opinion.”
(Id. at p. 71.)
In accordance with the Supreme Court’s remand for further proceedings consistent
with the court’s opinion in City of Gilroy II, supra, 19 Cal.5th 38, regarding the
availability of declaratory relief under the CPRA, we conclude for the reasons stated
below that the trial court’s October 1, 2021 order granting declaratory relief should be
upheld as to the first declaration that “the City violated the CPRA by conducting an
inadequate search related to the Law Foundation’s 2018 Public Records Act Requests.”
We will uphold the second declaration as revised to clarify that the City’s responses to
Law Foundation’s requests for bodycam footage must meet, but need not exceed, the
CPRA’s statutory requirements for justifying the withholding of exempt records.
II. FACTUAL BACKGROUND
A. Records of GPD Body-Worn Camera Video Footage
Gilroy Police Department (GPD) receives complaints about homeless
encampments that have been established on private or public property, including the
property of the Santa Clara Valley Water District (Water District). When requested by
the Water District, GPD assists with the cleanup of homeless encampments (also known
as sweeps) on Water District property. According to former Chief of Police Scot
Smithee, “[d]uring an encampment cleanup, GPD officers proceed in advance of the
Water District crews. The GPD officers locate and investigate individuals who have
failed to comply with the prior written and oral notices to vacate the premises. Officers
make contact with these individuals to investigate potential violations of the law, such as
4
trespass or illegal storage, and direct individuals to collect their belongings and
immediately vacate the property prior to the Water District personnel arriving to
complete the cleanup.” The Water District is responsible for collecting belongings left at
the cleanup site and either disposing of them or leaving items of apparent value at the site
for homeless persons to retrieve later. GPD collects and stores a few items, such as
identification cards.
According to Smithee, GPD officers assisting with homeless encampment
cleanups have body-worn cameras (bodycams), which they activate “if they are engaging
in a criminal investigation or enforcement action.” Video footage generated by GPD
officers’ bodycams is collected and stored in accordance with GPD’s record management
system. David Boles, GPD’s records manager, is responsible for the collection and
maintenance of all GPD records, including video footage from bodycams. Boles is also
responsible for responding to public record requests for GPD records. City’s records
retention policy for GPD records requires bodycam video footage to be retained for one
year, then automatically deleted by a computer system unless flagged for preservation.
Once a bodycam video is automatically deleted, it cannot be recovered or viewed by
GPD.
B. Law Foundation’s 2018 Public Records Requests
After receiving complaints from homeless persons that their personal property was
being destroyed during cleanups of homeless encampments, the Law Foundation began
an investigation that included making numerous public records requests to City. In its
October 9, 2018 request Law Foundation asked for “Request 11: Any and all public
records constituting, reflecting or relating to the proactive enforcement of Quality of Life
violations between January 1, 2015 through the present”; “Request 18: Any and all
public records constituting, reflecting or relating to the number of encampment sweeps
conducted between January 1, 2015 through the present”; and “Request 24: Any and all
public records constituting, reflecting or relating to the Zero Tolerance Policy regarding
5
the homeless and Quality of Life violations between January 1, 2015 through the
present.”
City provided responsive materials to Law Foundation’s October 9, 2018 public
records requests with an October 29, 2018 response from the assistant city attorney that
stated in part, “[t]he GPD’s law enforcement records generally, and Quality of Life
criminal code enforcement records specifically, are exempt from disclosure under the
[CPRA].”3 GPD did not provide any bodycam video footage in response to Law
Foundation’s October 9, 2018 public records request, or in response to Law Foundation’s
subsequent public records requests to GPD dated October 15, 2018, and November 8,
2018, that also sought City’s records related to cleanups of homeless encampments.
Since GPD’s bodycam video footage was determined by the City Attorney to be exempt,
Boles did not search for or review any bodycam video footage after receiving Law
Foundation’s October and November 2018 public records requests.
C. Law Foundation’s May 2019 Public Records Requests
Law Foundation staff attended a May 2019 homeless task force meeting at GPD
where, according to Law Foundation, Chief Smithee stated that all homeless encampment
sweeps are videotaped. Law Foundation then submitted a May 20, 2019 public records
request to City that requested (1) “All videos taken by the Gilroy Police Department
during sweeps in Gilroy conducted between January 1, 2016 and the present;” (2) “All
videos taken by the Gilroy Police Department of the encampment sweep behind the
3
The CPRA provides that “[e]xcept as provided in Sections 7924.510, 7924.700,
and 7929.610, this division does not require the disclosure of 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 Office of
Emergency Services 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.” (§ 7923.600, subd. (a); see National Lawyers Guild v. City of
Hayward (2020) 9 Cal.5th 488, 493 [citing former § 6254, subd. (f), now § 7923.600,
subd. (a)].)
6
Compassion Center on April 26, 2019;” and (3) “All audio recordings by the Gilroy
Police Department during sweeps between January 1, 2016 through the present.”
After City received the May 20, 2019 public records request, City and Law
Foundation engaged in a series of communications regarding the scope of the request and
City’s need to review the videotapes and audio recordings to determine if any fell outside
the exemption for records of investigations and investigatory files. City subsequently
provided some responsive materials with a June 11, 2019 letter from the assistant city
attorney, which informed Law Foundation that its request for GPD bodycam video
footage from the homeless encampment sweeps was denied because the bodycam videos
were exempt from disclosure.
In a June 21, 2019 letter the Law Foundation demanded that City “produce video
and audio recordings of sweeps in Gilroy that were not taken during a criminal
investigation for a ‘specific and concrete’ law enforcement purpose.” After further
communications between the parties, on August 12, 2019, the Law Foundation notified
City that it intended to file a petition for writ of mandate seeking a court order to compel
City to release GPD video and audio recordings of encampment sweeps occurring
between January 1, 2016 through the present. Due to Law Foundation’s stated intention
of filing a writ petition to obtain release of the bodycam video footage, on August 22,
2019, GPD voluntarily placed a “ ‘litigation hold’ ” on the footage to preserve it beyond
the one-year retention period.
City then decided to release GPD bodycam video footage from encampment
sweeps that did not relate to citations or arrests.4 After reviewing the bodycam footage,
in October 2019 City provided approximately 52 minutes of footage from homeless
4
We omitted any facts or discussion pertaining to City’s requirement that
Foundation pay for City’s redaction of the bodycam videos to preserve individuals’
privacy, since the record reflects that City has refunded the fees and the redaction fees are
no longer at issue.
7
encampment sweeps that were conducted on June 1, 2018, February 17, 2019, and
April 26, 2019. City withheld from disclosure 10 minutes and four seconds of GPD
bodycam video footage from encampment sweeps conducted on February 8, 2018, and
February 9, 2018, that showed two encounters in which GPD officers issued citations.
According to Boles, GPD’s records manager, “[a]side from the 10:04 minutes of footage
that [City] continued to withhold and the 52 minutes of footage released to [Law
Foundation], no other body camera footage from encampment sweeps conducted between
January 1, 2016 and May 20, 2019 was located within [City’s] possession.”
III. PROCEDURAL BACKGROUND
A. October 8, 2020 Order
The parties agree that the trial court performed an in camera review of the
10 minutes and four seconds of bodycam video footage that City had withheld as exempt
pursuant to section 7923.600, subdivision (a) exemption for investigatory records. The
parties also agree that in the October 8, 2020 order the trial court ruled that the exemption
was valid and the footage was properly withheld. The October 8, 2020 order was not
included in the record on appeal and is not at issue in these original proceedings.
B. Law Foundation’s Petition for Writ of Mandate
In December 2020 Law Foundation filed a verified first amended petition for writ
of mandate and complaint for equitable relief (hereafter, writ petition or petition) alleging
that City had committed several violations of the CPRA.
In the writ petition, Law Foundation asserted that City did not inform Law
Foundation until July 2020 that it had destroyed potentially responsive GPD bodycam
video footage while Law Foundation’s public records requests were pending. At that
time, City informed Law Foundation that all bodycam video footage prior to August 2019
had been destroyed, with the exception of one June 2018 video that was later provided by
City. According to Law Foundation, City “did not put any kind of preservation flag or
8
hold on police body camera footage until August 22, 2019, [and] did not begin reviewing
‘potentially responsive video footage’ until August 12, 2019.”
Law Foundation also asserted that following its May 2019 public records requests
for GPD bodycam videos pertaining to homeless encampment sweeps, City did not
provide any bodycam videos until October 24, 2019, after a series of communications
between the parties regarding City’s response to Law Foundation’s May 2019 public
records requests.
Based on these and other allegations, Law Foundation asserted a cause of action
for violations of former sections 6253 and 6253.9 [now sections 7922.500 and 7922.570]
and article I, section 3 of the California Constitution. The alleged violations included
City’s delay in responding to public records requests, City’s failure to search for
responsive records, and City’s destruction of responsive records while Law Foundation’s
public records requests were pending. Law Foundations sought a writ of mandate
directing City to produce all requested records not lawfully withheld and also declaratory
relief, as follows: (1) a declaration that Law Foundation had a right to responses to its
requests that were compliant with CPRA’s time limits and rules regarding extensions of
time; and (2) a declaration that City failed to produce responsive records that existed at
the time of Law Foundation’s requests but were subsequently destroyed. Law
Foundation also sought an award of attorney fees and costs.
City filed an answer to the writ petition affirmatively asserting that Law
Foundation was not entitled to the relief requested.
C. Trial Court Proceedings
1. Pretrial Briefing
Before the hearing in this matter, the parties submitted pretrial briefs supported by
declarations and documentary evidence. Law Foundation argued in its pretrial brief that
it was entitled to declarations that City’s actions were unlawful under the CPRA, as
follows: (1) “City conducted inadequate search(es) for public records, including police
9
video camera footage, responsive to the Law Foundation’s [CPRA] requests dated
October 9, 2018; October 15, 2018; November 8, 2018; and May 20, 2019 . . .;” (2) “City
provided inadequate written response(s) to each of the CPRA Requests, including by
failing to specify the exempt records or representing that they no longer existed;”
(3) “City unlawfully allowed potentially responsive police video camera records to be
destroyed both while the CPRA Requests were pending, and after this litigation
commenced;” (4) “City improperly and without notice to the Law Foundation,
categorized all police video camera footage of homelessness sweeps as categorically
exempt under the CPRA, and declined even to review them until after this litigation was
threatened;” (5) “City failed to meet its burden to prove that all withheld records were
properly exempt and/or could not be redacted, including those it allowed to be
destroyed;” and (6) “City failed to timely respond to the CPRA Requests.”
Law Foundation also sought a “[d]eclaration from the Court that an adequate
search requires . . . City to watch and listen to a responsive clip of bodycam footage in its
entirety before determining that it is exempt from disclosure under the CPRA.” Finally,
Law Foundation sought “[a]n injunction that enjoins . . . City from destroying records
requested under a CPRA Request and deemed exempt for a period of three years after
receipt of the CPRA Request.” Law Foundation did not argue that a writ of mandate
should issue directing City to produce all requested records not lawfully withheld.
In its trial brief, City contended that the writ petition should be denied because its
actions in response to Law Foundation’s CPRA requests were reasonable and did not
violate the CPRA. City also contended that the CPRA did not require City to place a
litigation hold on records that were withheld as exempt. Further, City argued that Law
Foundation’s claims of CPRA violations were moot, because prior to litigation City had
provided all responsive GPD bodycam video footage in its possession, except for the
10 minutes and four seconds of footage that the trial court had previously ruled were
exempt.
10
2. October 1, 2021 Order
In the October 1, 2021 “order of judgment” the trial court denied the writ petition,
granted declaratory relief in part, and denied the request for injunctive relief.
The trial court granted declaratory relief as follows: “(1) the City violated the
CPRA by conducting an inadequate search related to the Law Foundation’s 2018 Public
Records Act Requests”; “(2) with respect to the 2018 requests, the City had a duty to, but
did not, watch the bodycam footage before asserting a blanket exemption when the
details of the footage were unclear on their face in order to determine whether the
exemption applies, separate the exempt and nonexempt material, if any, and share
information derived from the exempt records with the requester as to why any withheld
records were exempt rather than a boilerplate response that parrots the law”; and (3) the
City’s “response to the November 2018 CPRA request was not timely, occurring 33 days
after the request was received.”
The trial court denied declaratory relief as to Law Foundation’s claims that City
had an obligation to preserve records, finding that “City did not violate the CPRA by
failing to preserve responsive records upon receipt of the Law Foundation’s multiple
Public Records Act requests,” and “City did not violate the CPRA by failing to preserve
responsive body camera footage after placing a litigation hold.”
Additionally, the trial court denied “Law Foundation’s request for an injunction
preventing the City from destroying any footage for three years after receiving a Public
Records Act request under the CPRA . . . because it asks the Court to expand the duties
imposed upon an agency by the legislature, as the CPRA does not allow for prospective
relief for presumed or potential future CPRA violations.”
In the October 1, 2021 order the trial court also stated a tentative ruling that costs
and attorney fees would be awarded to Law Foundation as the prevailing party because
City had produced public records after litigation began and because the court had
11
“granted declaratory relief finding that . . . City violated the CPRA,” with a final
determination to be made upon separate motions.
D. Proceedings in This Court
1. Petitions for Writ of Mandate
Both parties filed writ petitions in this court challenging parts of the trial court’s
order. In case No. H049552, City of Gilroy v. Superior Court, City contended that the
trial court had erred in granting declaratory relief, failing to find that Law Foundation’s
claims of CPRA violations were moot, and tentatively finding that Law Foundation is the
prevailing party for purposes of awarding costs and attorney fees. In case No. H049554,
Law Foundation v. Superior Court, Law Foundation argued that the trial court had erred
in denying Law Foundation’s request for a declaration that City violated the CPRA by
destroying responsive records after it received the Law Foundation’s CPRA requests.5
In each original proceeding, this court issued a temporary stay and an order to
show cause why a peremptory writ should not issue as requested in the petition, and
afforded the parties the opportunity for further briefing and oral argument. We also
granted the application of the League of California Cities and the California Special
Districts Association for leave to file an amicus curiae brief in support of City in each
original proceeding.
2. City of Gilroy I
In our original decision, Gilroy I, supra, 96 Cal.App.5th 818, we determined in
case No. H049552, City of Gilroy v. Superior Court that the matter was moot because it
was undisputed that City had produced all responsive nonexempt GPD bodycam video
footage in its possession, and therefore no effective relief could be granted under the
CPRA (Id. at p. 833.) We also ruled that declaratory relief was not available under the
circumstances of this case because the CPRA did not authorize declaratory relief with
5
On the court’s own motion, we ordered case Nos. H049552 and H049554 to be
considered together for purposes of oral argument and disposition.
12
respect to the propriety of City’s past conduct in responding to Law Foundation’s public
records requests. (Id. at pp. 833-834.)
However, we rejected Law Foundation’s argument in case No. H049554 Law
Foundation v. Superior Court, that the CPRA imposed a duty upon public agencies to
preserve for three years all documents responsive to a public records request that have
been withheld as exempt, pursuant to Code of Civil Procedure section 338 [three-year
limitations period]. We determined that the CPRA did not require public agencies to
retain records that are potentially responsive to a public records request, and under the
rules of statutory construction we could not insert such a requirement in the CPRA. (City
of Gilroy I, supra, 96 Cal.App.5th at p. 837.) We therefore concluded that the trial court
did not err in denying Law Foundation’s request for a declaration that that City violated
the CPRA by failing to preserve responsive records it claimed were exempt while Law
Foundation’s public records requests were pending and prior to court review. (Id. at
p. 839.)
E. City of Gilroy II
The California Supreme Court granted Law Foundation’s petition for review of
this court’s decision in City of Gilroy I, supra, 96 Cal.App.5th 818. In granting review,
the Supreme Court in City of Gilroy II, supra, 19 Cal.5th 38 addressed two issues arising
from the CPRA: “First, does the [CPRA] authorize a superior court to grant declaratory
relief for violations of its provisions when it is undisputed that an agency has disclosed
all existing records that are responsive to a records request and not exempt from
disclosure? Second, when an agency responds to a CPRA request by asserting that the
requested records fall under a statutory exemption from disclosure, does the CPRA
require that the agency retain the records for three years from the date the exemption is
invoked?” (Id. at p. 45.) The Supreme Court began its analysis of both issues with an
overview of the CPRA.
13
1. Overview of California Public Records Act
“ ‘The Legislature enacted the CPRA in 1968. (Stats. 1968, ch. 1473, § 39,
p. 945.) It was modeled after the 1967 federal Freedom of Information Act (5 U.S.C.
§ 552). [Citation.] The CPRA explains that “access to information concerning the
conduct of the people’s business is a fundamental and necessary right of every person in
this state.” ([Former] § 6250 [now § 7921.000].) To promote this fundamental right, the
CPRA provides that “every person has a right to inspect any public record, except as
hereafter provided.” ([Former] § 6253, subd. (a)[7].) “In other words, all public records
are subject to disclosure unless the Legislature has expressly provided to the
contrary.” ’ ” [Citation.]” (City of Gilroy II, supra, 19 Cal.5th at p. 51.)
Our Supreme Court also acknowledged that the CPRA includes exemptions:
“ ‘Although the CPRA provides for a broad right of access, it “recognizes that certain
records should not, for reasons of privacy, safety, and efficient governmental operation,
be made public . . . .” ’ [Citation.] The CPRA thus provides for “numerous exceptions to
the requirement of public disclosure.” [Citation.] This includes the investigative
exemption relied upon by the City in this case, which is intended to “protect . . . law
enforcement’s ability to effectively perform its duties.” ’ [Citation.]” (City of Gilroy II,
supra, 19 Cal.5th at p. 52.)
2. Availability of Declaratory Relief Under the CPRA
The Supreme Court in Gilroy II established the following rule regarding the
availability of declaratory relief under the CPRA: “[W]e conclude from the statutory
text, considered in light of the CPRA’s purpose of ‘increasing freedom of information’
[citation], that declaratory relief under the CPRA is available in at least some
circumstances in which all existing responsive, nonexempt records have been disclosed in
response to a records request. An agency’s disclosure of those records does not
necessarily moot a request for declaratory relief that would ‘enforce that person’s right
under this division to inspect or receive a copy of any public record or class of public
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records. (§ 7923.000.) At a minimum, declaratory relief is available under the CPRA
where the declaration would resolve an ongoing dispute regarding the parties’ rights and
obligations in a manner that has some likelihood of affecting future requests for public
records or future conduct relating to such requests.’ ” (City of Gilroy II, supra, 19
Cal.5th at pp. 45-46.)
Regarding the availability of declaratory relief in the present proceedings, the
Supreme Court stated that “[i]t is apparent here that the first two of the trial court’s
declarations, which concerned the City’ responses to public records requests involving
bodycam footage captured by law enforcement, addressed contested issues regarding the
City’s handling of records requests that were sufficiently likely to recur; declaratory relief
is appropriate in these circumstances to help guide the parties’ future conduct and inform
their rights and responsibilities under the CPRA.” (City of Gilroy II, supra, 19 Cal.5th at
p. 54.)
More specifically, the Supreme Court determined that “the trial court issued three
declarations—the first declaring that the City violated the CPRA by conducting an
inadequate search for records; the second declaring that the City breached various duties
in asserting an exemption for bodycam footage sought by the Law Foundation; and the
third declaring that the City’ response to the November 2018 request was untimely,
‘occurring 33 days after the request was received.’ The first and second of these
declarations were appropriate regardless of whether, when past conduct is at issue, the
CPRA’s declaratory relief provision is limited to circumstances in which this conduct has
some likelihood of recurring. Both of these declarations addressed contested claims
regarding the City’s alleged responsibilities under the CPRA, given the City’s consistent
view concerning the CPRA’s application to certain bodycam recordings that it continues
to generate. Declaratory relief was appropriate to provide guidance to the parties and
resolve their ongoing disputes.” (City of Gilroy II, supra, 19 Cal.5th at p. 56.)
15
Finally, the Supreme Court declined to address the merits of the trial court’s third
declaration that City’ response to the November 2018 request was untimely. (City of
Gilroy II, supra, 19 Cal.5th at p. 56.)6
F. The Appropriate Disposition
We requested and received supplemental briefing from the parties addressing the
appropriate disposition in these original proceedings in light of the Supreme Court’s
decision in City of Gilroy II, supra, 19 Cal.5th 38. We will address the two declarations
at issue in turn.
1. First Declaration—Inadequate Search for Records
In the first declaration, the trial court granted declaratory relief as follows: “[T]he
City violated the CPRA by conducting an inadequate search related to the Law
Foundation’s 2018 Public Records Act Requests.” During the hearing on Law
Foundation’s petition for writ of mandate, the trial court explained the court’s reasoning
in granting declaratory relief. Regarding the first declaration, the trial court stated: “The
City knew that police officers could record body-cam footage while engaging in
encampment sweeps. Thus, the City should have been aware that police body-cam
footage was responsive to Law Foundation’s requests. The City’s failure to search for
body-cam footage in response to the Law Foundation’s 2018 Public Records requests was
inadequate.”
The Supreme Court ruled in City of Gilroy II, supra, 19 Cal.5th at page 56, that the
first declaration was “appropriate,” because the declaration “addressed contested claims
regarding the City’s alleged responsibilities under the CPRA, given the City’s consistent
6
In City of Gilroy II the Supreme Court directed that “[u]pon remand, the Court of
Appeal can consider whether the trial court’s third declaration is authorized under the
CPRA, assuming the parties wish to further pursue the matter in light of the concession
made by the Law Foundation.” (City of Gilroy II, supra, 19 Cal.5th at p. 56.) We decline
to address the third declaration, pursuant to Law Foundation’s statement in its
supplemental briefing that “[f]urther adjudication of the timeliness issue is unnecessary to
the disposition of this case and unnecessarily complicates the appeal.”
16
view concerning the CPRA’s application to certain bodycam recordings that it continues
to generate.” We understand the Supreme Court to thereby rule that the City’s
“consistent view” that all GPD bodycam footage generated during encampment sweeps is
exempt from disclosure under the CPRA as a record of investigations or law enforcement
action (§ 7923.600, subd. (a)) constitutes an ongoing dispute between the parties
regarding the City’s obligation to disclose police bodycam footage, and therefore
declaratory relief is appropriate to provide guidance to the parties and resolve their
ongoing dispute. (See City of Gilroy II, supra, 19 Cal.5th at p. 56.) Although the
Supreme Court ruled in City of Gilroy II that declaratory relief was appropriate under the
circumstances of this case, the disposition did not direct this court to affirm the first
declaration as stated in the trial court’s order.
The Law Foundation in its supplemental brief argues that the appropriate
disposition on remand is for this court to affirm the trial court’s grant of declaratory relief
as stated in the first declaration. According to the Law Foundation, the applicable
standard of review is substantial evidence, and substantial evidence supports the trial
court’s ruling that Law Foundation’s 2018 public records requests adequately requested
GPD bodycam footage recorded during encampment sweeps.
In its supplemental brief, the City argues to the contrary that the Law Foundation’s
2018 public records requests pertaining to encampment sweeps did not expressly seek
GPD bodycam footage, and therefore this court, in exercising de novo review, should rule
that the trial court erred in granting declaratory relief.
We review a trial court order granting declaratory relief for abuse of discretion,
generally resolving any doubts in favor of granting relief. (Filarsky v. Superior Court
(2002) 28 Cal.4th 419, 433 (Filarsky) [construing Code Civ. Proc, § 1060].) “ ‘The
appropriate test for abuse of discretion is whether the trial court exceeded the bounds of
reason.’ [Citation.] ‘Under the abuse of discretion standard, “[t]he trial court’s findings
of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo,
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and its application of the law to the facts is reversible only if arbitrary and capricious.” ’
[Citations.].” (Johnson v. Rubylin, Inc. (2025) 117 Cal.App.5th 247, 257 (Johnson).)
Applying the abuse of discretion standard of review, we first observe that, as the
Supreme Court noted, “[t]he three requests submitted by the Law Foundation in October
and November 2018 referenced enforcement actions that had been taken. For instance,
one of the requests was for ‘[a]ny and all public records constituting, reflecting or
relating to the Zero Tolerance Policy regarding the homeless and Quality of Life
violations between January 1, 2015 through the present.’ None of these requests
specifically mentioned footage captured by body-worn cameras (bodycam footage).”
(City of Gilroy II, supra, 19 Cal.5th at p. 46.)
However, we find that there is substantial evidence to support a finding that City
should have been aware that police bodycam footage existed that was responsive to Law
Foundation’s requests. This evidence includes Chief Smithee’s undisputed statement
during a homeless task force meeting that all homeless encampment sweeps are
videotaped, which supports the trial court’s finding that City knew that GPD officers
could record bodycam footage while engaging in encampment sweeps. Additionally, in
October 2019 City provided approximately 52 minutes of bodycam footage from
homeless encampment sweeps that were conducted in 2018 and 2019, withholding from
disclosure only 10 minutes and four seconds of GPD bodycam video footage that showed
two encounters in which GPD officers issued citations. However, since GPD’s bodycam
video footage had been determined by the City Attorney to be exempt in its entirety from
disclosure as law enforcement records, prior to the October 2019 disclosure the City’s
records manager did not search for or review any bodycam video footage after receiving
Law Foundation’s October and November 2018 public records requests.
Applying the abuse of discretion standard of review, and following the Supreme
Court’s guidance in City of Gilroy II, supra, 19 Cal.5th 38, we determine that the trial
court’s order granting declaratory relief as stated in the first declaration was not arbitrary
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or capricious. (See Johnson, supra, 117 Cal.App.5th at p. 257.) Our determination is
based on (1) City’s “consistent view” the that police bodycam footage of encampment
sweeps was exempt in its entirety from disclosure under the CPRA, which resulted in the
existence of an ongoing dispute regarding City’s obligation under the CPRA to disclose
GPD bodycam footage; and (2) substantial evidence supports the trial court’s finding
GPD bodycam footage of encampment sweeps was responsive to Law Foundation’s
October and November 2018 public record requests. (Ibid.)
We are not convinced by City’s argument that the trial court erred in granting
declaratory relief as stated in the first declaration because City had no obligation to
search for GPD bodycam footage due to Law Foundation’s failure to expressly request
GPD bodycam footage in its public records requests. The general rule is that “a person
who seeks public records must present a reasonably focused and specific request, so that
the public agency will have an opportunity to promptly identify and locate such records
and to determine whether any exemption to disclosure applies. [Citations].” (Galbiso v.
Orosi Public Utilities Dist. (2008) 167 Cal.App.4th 1063, 1088.) “However, the
requirement of clarity must be tempered by the reality that a requester, having no access
to agency files, may be unable to precisely identify the documents sought. Thus, writings
may be described by their content. The agency must then determine whether it has such
writings under its control and the applicability of any exemption. An agency is thus
obliged to search for records based on criteria set forth in the search request.’ [Citation.]”
(Community Youth Athletic Center. v. City of National City (2013) 220 Cal.App.4th 1385,
1424-1425; see § 7920.600 [assistance to members of public making public record
requests].) City has not provided any authority for the contrary proposition that a public
records request under the CPRA must expressly request disclosure of police bodycam
footage in order for the public agency to be obliged to search for potentially responsive
bodycam footage.
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For these reasons, we conclude that the trial court did not abuse its discretion in
granting declaratory relief as stated in the first declaration.
2. Second Declaration—Asserting an Exemption for Bodycam Footage
The trial court granted declaratory relief in the second declaration as follows:
“[W]ith respect to the 2018 requests, the City had a duty to, but did not, watch the
bodycam footage before asserting a blanket exemption when the details of the footage
were unclear on their face in order to determine whether the exemption applies, separate
the exempt and nonexempt material, if any, and share information derived from the
exempt records with the requester as to why any withheld records were exempt rather
than a boilerplate response that parrots the law.”
In City of Gilroy II our Supreme Court ruled that declaratory relief was
“appropriate,” stating: “Both of these declarations addressed contested claims regarding
the City’s alleged responsibilities under the CPRA, given the City’s consistent view
concerning the CPRA’s application to certain bodycam recordings that it continues to
generate. Declaratory relief was appropriate to provide guidance to the parties and
resolve their ongoing disputes.” (City of Gilroy II, supra, 19 Cal.5th at p. 56.)
In its supplemental briefing, City argues that the trial court erred in granting
declaratory relief as stated in the second declaration because the 2018 public records
requests targeted only exempt records; the second declaration improperly requires an
index describing each document or portion thereof withheld; and City’s responses to the
2018 public records requests explained City’s application of the exemption for law
enforcement records and did not parrot the law.
Law Foundation argues to the contrary that the second declaration should be
upheld because substantial evidence supports the trial court’s finding that City violated
the CPRA by failing to comply with City’s duty under the CPRA to review the bodycam
footage before asserting a blanket exemption, and to separate exempt from nonexempt
material. According to Law Foundation, “the video that the City actually produced is
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probative of and indeed proof that responsive footage to the 2018 CPRA requests
contained non-exempt footage that should have been segregated and produced.”
We observe that the Supreme Court’s disposition in City of Gilroy II, supra,
19 Cal.5th 38, did not direct this court to affirm the trial court’s order granting
declaratory relief as stated in the second declaration. Keeping in mind that our Supreme
Court has ruled that declaratory relief is appropriate under the circumstances of this case,
we will analyze the language of the second declaration under the abuse of discretion
standard. (See Filarsky, supra, 28 Cal.4th at p. 433; Johnson, supra, 117 Cal.App.5th at
p. 257.)
We begin our review with the CPRA’s statutory requirements, including the
procedure for a public agency to respond to a public records request. Relevant here, the
CPRA provides that “[a] response to a written request for inspection or copies of public
records that includes a determination that the request is denied, in whole or in part, shall
be in writing. [¶] . . . [¶] An agency shall justify withholding any record by complying
with Section 7922.000.” (§ 7922.540.)
Section 7922.000 requires that “ ‘[w]hen an agency withholds a responsive record,
the agency must “justify [its] withholding . . . by demonstrating that the record in
question is exempt under express provisions of this division, or 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.’ (§ 7922.000.) When a record
contains both exempt and nonexempt information, an agency must make a reasonable
effort to segregate and redact the record so that ‘[a]ny reasonably segregable portion of a
record shall be available for inspection by any person requesting the record after deletion
of the portions that are exempted by law.’ (§ 7922.525, subd. (b).” (City of Gilroy II,
supra, 19 Cal.5th at pp. 52-53.)
However, the Supreme Court in City of Gilroy II also recognized that “[i]n Haynie
[v. Superior Court (2001) 26 Cal.4th1061,1074], we held that the CPRA does not require
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a public agency to ‘create a list and description of documents withheld’ prior to litigation.
[Citation.] We first noted that the CPRA ‘contains no . . . provision describing an
agency’s duty to create a log of documents exempt from disclosure.’ [Citation.] We also
observed that such a duty ‘has the potential for imposing significant costs on the agency.’
[Citation.] We thereafter declined to read such a duty into the CPRA. [Citation.]” (City
of Gilroy II, supra, 19 Cal.5th at p. 64.)
In the present case, the trial court’s second declaration stated: “[W]ith respect to
the 2018 requests, the City had a duty to, but did not, watch the bodycam footage before
asserting a blanket exemption when the details of the footage were unclear on their face
in order to determine whether the exemption applies, separate the exempt and nonexempt
material, if any, and share information derived from the exempt records with the
requester as to why any withheld records were exempt rather than a boilerplate response
that parrots the law.”
The trial court also stated during the hearing in this matter that “[t]he law requires
when withholding a record, the agency must describe each document or portion thereof
withheld, and for each withholding, must discuss the consequences of disclosing the
sought after information.” To the extent the second declaration may be read to require
City’s response to a public records request to include a log of exempt bodycam footage,
the trial court abused its discretion because the CPRA does not require an agency’s
response to include a log of exempt documents. (See City of Gilroy II, supra, 19 Cal.5th
at p. 64; Johnson, supra, 117 Cal.App.5th at p. 257 [legal error constitutes abuse of
discretion].) The record further shows that City did not provide a “boilerplate response
that parrots the law” in asserting the exemption for law enforcement investigations
(§ 7923.600, subd. (a)), since City’s response included a paragraph explaining its
assertion of the exemption and providing information from non-exempt records.
We determine as a matter of law that the second declaration, as stated in the trial
court’s order, may be understood to obligate the City to respond to public records
22
requests in a manner that exceeds the CPRA’s statutory requirements. Specifically, the
language of the second declaration may be read to require City’s response to a public
records request to include a log of exempt bodycam footage. The language of the second
declaration may also be read to require City to provide an explanation for withholding
responsive body cam footage beyond the explanation required by Section 7922.000,
which states in part that “ ‘[w]hen an agency withholds a responsive record, the agency
must “justify [its] withholding . . . by demonstrating that the record in question is exempt
under express provisions of this division.”
We will therefore uphold the second declaration as revised to clarify the City’s
statutory responsibilities under the CPRA in responding to Law Foundation’s public
records requests. The second declaration is revised to state: “With respect to the 2018
public records requests, the City had a duty to, but did not, watch the bodycam footage
before asserting a blanket exemption, separate the exempt and nonexempt material, if
any, and to provide a response justifying its withholding of any responsive bodycam
footage that complies with Government Code section 7922.000.”
3. Attorney Fees
In the October 1, 2021 order the trial court stated a tentative ruling that costs and
attorney fees would be awarded to Law Foundation as the prevailing party because City
had produced public records after litigation began and because the court had “granted
declaratory relief finding that . . . City violated the CPRA,” with a final determination to
be made upon separate motions.
In its supplemental brief, Law Foundation acknowledges that the issue of whether
Law Foundation is the prevailing party entitled to attorney’s fees under the CPRA
§ 7923.115) “is not ripe for adjudication in this Court.”7 Law Foundation also
7
Section 7923.115, subdivision (a) states: “If the requester prevails in litigation
filed pursuant to this chapter, the court shall award court costs and reasonable attorney’s
23
acknowledges that writ review of attorney’s fees orders is not available and that
“[e]ntitlement to attorneys’ fees, including appellate fees, is generally determined by the
trial court in the first instance. [Citations.]”
“[T]the CPRA requires a public agency to pay ‘court costs and reasonable
attorney’s fees to the requester’ ‘[i]f the requester prevails in litigation filed pursuant to
[the CPRA]. (§ 7923.115, subd. (a).)” (City of Gilroy II, supra, 19 Cal. 5th at p. 62.)
However, “a court is not statutorily obligated to award fees in the amount requested by
prevailing counsel.” (Id. at p. 63.)
We need not address any issues arising from the trial court’s tentative ruling
regarding the prevailing party and attorney’s fees since these issues are not properly
before us. “[A] tentative decision is not an appealable judgment or order. [Citations.];
see Cal. Rules of Court, rule 3.1590(b) [‘The tentative decision does not constitute a
judgment and is not binding on the court.’].” (Estate of Sapp (2019) 36 Cal.App.5th 86,
99.) Accordingly, we express no opinion on any issues either pertaining to the tentative
ruling or arising from the trial court’s award, if any, of attorney’s fees pursuant to section
7923.115, subdivision (a).
IV. DISPOSITION
In case No. H049552, City of Gilroy v. Superior Court: Let a peremptory writ of
mandate issue directing the superior court to (1) vacate the October 1, 2021 order; and
(2) enter a new order granting declaratory relief as follows: (1) “The City violated the
California Public Records Act by conducting an inadequate search related to the Law
Foundation’s 2018 California Public Records Act’s requests; and (2) “With respect to the
2018 public records requests, the City had a duty to, but did not, watch the bodycam
footage before asserting a blanket exemption, separate the exempt and nonexempt
fees to the requester. The costs and fees shall be paid by the public agency and shall not
become a personal liability of the public official involved.”
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material, if any, and to provide a response justifying its withholding of any responsive
bodycam footage that complies with Government Code section 7922.000.”
In case No. H049554, Law Foundation v. Superior Court: Let a peremptory writ
of mandate issue directing the superior court to vacate the October 1, 2021 order and to
enter a new order denying Law Foundation’s petition for writ of mandate and complaint
for declaratory relief.
The parties shall bear their own costs on appeal.
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_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Danner, J.
______________________________________
Wilson, J.
H049552 City of Gilroy v. Superior Court
H049554 Law Foundation of Silicon Valley v. Superior Court