May 2008

Superior Court Finds City's EIR for Downtown Precise Plan Improperly Mitigated Impacts to Historical Resources and Excluded Required Shadow Analysis

The San Mateo County Superior court granted a petition for writ of mandate, setting aside Redwood City’s certification of a final environmental impact report for its Downtown Precise Plan on the grounds that the EIR inadequately described and mitigated impacts to historical resources, and incorrectly determined that CEQA does not require analysis of shadow impacts. The court rejected mitigation of historical resources that would have allowed the City to document or install a plaque prior to demolition of an historical resource. The court also concluded that the City had improperly omitted analysis of shadow impacts of the project, which proposed construction of substantially taller buildings than currently exist in the downtown area. While Redwood City had determined that CEQA did not require analysis of such impacts, the court found that an EIR must consider shadow impacts “if a project will substantially degrade the existing visual character or quality of the site and its surroundings, and the lead agency has exercised its discretion to determine to classify the impact as significant.”

While the decision is not yet final, and lacks the precedential value of an appellate opinion, its treatment of shadow impacts in particular, addresses an unsettled area of CEQA law.

For more information on the unpublished decision, see this recent article in the Redwood City Daily News.

Law Enforcement Agencies Must Disclose the Names of Peace Officers Involved In a Critical Incident

On May 19, 2008, California Attorney General Jerry Brown issued an opinion (No. 07-208) determining that the names of peace officers involved in a critical incident are generally subject to disclosure under the California Public Records Act ("CPRA"), unless the facts of the particular incident support an exemption in accordance with the CPRA's public interest exception because the public interest served by not disclosing the names clearly outweighs the public interest served by disclosing the names.

The opinion attempts to clear up the ongoing tension between the public's right to information about law enforcement activities with the right of peace officers to privacy and confidentiality in their personnel matters. This tension has been frustrated in recent years by judicial opinions which have been interpreted differently and which can lead to inconsistent results when applied to a specific factual scenario. In New York Times Co. v. Superior Court, 52 Cal.App.4th 97 (1997), the California Court of Appeal for the Second District held that a law enforcement agency must generally provide the names of officers involved in a critical incident. However, in Copley Press, Inc. v. Superior Court, 39 Cal.4th 1272 (2006), the California Supreme Court noted that the general categorical assertion that a peace officer's name is generally subject to disclosure was incorrect, at least to issues related to peace officer disciplinary matters.

The Attorney General opinion finds that the holding in Copley did not entirely overrule the holding in New York Times, as some have assumed; rather, taken together the Copley and New York Times holdings should be construed to mean that the name of an officer involved in a critical incident, including one where lethal force is used, must be disclosed as long as disclosure does not reveal confidential information from the peace officer's personnel file and/or endanger either the integrity of an investigation or the safety of a person. The Attorney General's opinion takes into consideration whether the CPRA's exemptions for information contained in personnel records and police department records of investigations and complaints makes the name of a peace officer involved in a critical incident exempt from disclosure and concludes that these exemptions are not applicable.