Guest Blog: How immigration attorneys can use the California Public Records Act to obtain police reports for clients
Immigration attorneys can use the California Public Records Act (“CPRA”) to help clients access the contents of their police reports. Police reports can be important tools in immigration cases, from demonstrating eligibility for U visas to defending clients in removal proceedings. However, attorneys are not always familiar with their clients’ rights to these reports or the best way to obtain them. This blog contains information on how to obtain the records clients are entitled to under the CPRA. Cal. Gov’t Code §§ 6250 et seq.
The situations in which immigration attorneys need access to clients’ police reports are numerous. Perhaps most common, clients regularly utilize police reports when applying for U visas. Police reports detail the crime of which the client was a victim and verify the client’s helpfulness in the subsequent criminal investigation. But the situations in which immigration attorneys can benefit from access to police reports reach much further than just the U visa context.
For example, when submitting applications to USCIS—such as applications for I-601A waivers or adjustment of status—clients with arrest histories often receive Requests for Evidence requiring them to submit police reports from their past arrests before the agency will grant relief. In removal proceedings, DHS counsel often attempts to submit police reports from clients’ arrests that may include prejudicial details. Although immigration attorneys often object to the admission of police reports, having the information contained within a report in advance helps attorneys know what to expect and to prepare their clients for attempts by DHS counsel to impeach them with the report. Moreover, police reports can be vital in determining the risk of a client facing grounds of removability or bars to relief that don’t require a conviction, such as controlled substance trafficking.
Given the myriad ways in which police reports can be useful in immigration cases, what rights do clients’ have to access those records? The CPRA allows any member of the public to access records that are prepared, owned, used, or retained by public agencies. Cal. Gov’t Code § 6252(e). Requestors are not required to be U.S. citizens or to hold lawful immigration status to access public records. Cal. Gov’t Code § 6252(b). In fact, most CPRA requests can be submitted anonymously, only requiring the requestor to provide contact information where the records can be sent. CPRA requests can be sent to any state or local public agency, including agencies like police departments, county sheriffs, and even private immigration detention centers that contract with cities or counties. Cal. Gov’t Code § 6252(d).
When a requestor asks for a police report, agencies are permitted to withhold the report itself. Cal. Gov’t Code § 6254(f). Importantly, however, agencies are required to provide large portions of the information contained within the report. Cal. Gov’t Code § 6254(f)(1)-(2). Such information includes the factual circumstances surrounding the arrest; a description of any injuries, property, or weapons involved in the incident; the full name and physical description of the arrested individual; the time, date, and location of the arrest; all charges the individual was held on; and other details. In essence, the majority of a police report’s substance must be produced by the agency upon request. Because some agencies refuse to provide this information despite their legal obligation to do so, it often helps to explicitly reference Government Code sections 6254(f)(1)-(2) in communications with the agency.
In limited circumstances, some police reports may only be made available to certain requestors—often due to laws designed to protect defendants. For example, police reports involving juvenile arrestees are available only to specific individuals, including the juvenile and her legal guardians. Even if the agency can legally provide the report to the juvenile and her guardians, she is arguably required to obtain a superior court order before providing the report to USCIS or other immigration authorities. Cal. WIC §§ 827, 831. These situations can be complex and may warrant consultation with a public records attorney.
Public records attorneys may also be able to assist where agencies unlawfully withhold or delay access to public information contained in police reports. The CPRA contains a provision for mandatory attorney’s fees in public records lawsuits, allowing public records attorneys to take cases on contingency in certain circumstances. Cal. Gov’t Code § 6259(d). This can allow immigration attorneys and their clients to enforce their right to public records without incurring any out-of-pocket cost.
Particularly in today’s hostile political climate, immigration attorneys need every tool available to advocate for our clients. The CPRA can be a great tool to add to our arsenal.
Anna von Herrmann is an immigration attorney with experience filing suits to enforce the California Public Records Act. For more information, contact firstname.lastname@example.org.