HomeMy WebLinkAboutNB 1 PURCHASE P.D. TAPES 3-1-82DATE:
TO:
FROM:
SUBJECT:
Feb. 24, 1982
NEW BUSINESS
No. 1
3-1-82
nter - C om
HONORABLE MAYOR AND CITY COUNCIL
BILL HUSTON, CITY MANAGER
SUPPLEMENTAL APPROPRIATION - PURCHASE OF POLICE DEPARTMENT
TAPES
RECOMMENDATION:
That the City Council authorize supplemental appropriation of $5,1Q0 from
the General Fund unrestricted balance for the purchase of 100 tapes to be
used in the taping of police communications.
DISCUSSION:
Attached are memoranda from the City Attorney and Police Chief which
describe the implications of a new State law effective January 1, 1982
which provides that taped police communications {dispatching and incoming
emergency calls) are a public record and must be retained for a minimum of
100 days. This requirement necessitates the purchase of additional tapes.
Staff will pursue whether the City is eligible for a reimbursement from the
State since the cost is State mandated.
DATE:
TO:
FROI'I:
SUBJECT:
January 25, 1982
Inter - C om
William Huston, City Manager
C. R. Thayer, Chief of Police
Recommendation for Transfer of Funds, Mid-Year Budget
Adjustment
Recommendation:
That $5,088 be transferred from account #5021111 - Full Time
Salary Savings to account #5029520 - Audio Visual Communications.
Background:
On 1/1/82, Government Code Section 34090.6 became effective. This
section mandates that police departments must keep its master reel
to reel tapes of all communications to and from the police
department for a minimum of 100 days. Destruction, or reuse of
these tapes, which are considered to be public records, must be
accomplished pursuant to Council Resolution.
Mr. Rourke's memo, dated 1/21/82, deals with this topic. This
correspondence is attached. Pursuant to Mr. Rourke's evaluation
of this issue, it is apparent that the police department will need
to purchase more than 100 days' worth of these reel to reel
tapes. The department currently has on hand, enough tapes to
satisfy the 100 day retention period.
It will become necessary to buy an additional 100 tapes to allow
for the reuse of the tapes pursuant to Council Resolution.
If the department had a total of 200 of these tapes on hand, it
would enable them to go to Council once every 90 days for a
resolution for destruction/reuse of the previously recorded tapes.
The tapes are currently priced at $48 each plus tax. For 100
tapes, it would necessitate a total expenditure of $5,088. The
additional ten tapes are needed due to the necessary retention of
a certain number of tapes for evidence in pending court trials or
other legal actions. Your authorization for this transfer of
funds is requested.
Respectfully submitted
C. R. THAYER
CHIEF OF POLICE
CRT:dh
DATE:
JANUARY 21, 1982
! nter- Corn
T0: CHARLES THAYER, CHIEF OF POLICE, TUSTIN POLICE DEPARTMENT/
JAMES G. ROURKE, CITY ATTORNEY
FROM:
DANIEL K. SPRADLIN, DEPUTY CITY ATTORNEY
SUSJECI: SUPPLEMENTAL MEMORANDUM ON PRESERVATION OF TAPE
RECORDINGS OF POLICE DEPARTMENT RADIO AND TELEPHONE CALLS
Introduction:
Recently this office has had the opportunity to review the legality
of the destruction of police department recordings of radio and
telephone communications in light of the effectiveness of Government
Code Section 34090.6 on January 1, 1982. In particular, this
office has considered whether the Police Department might recycle
its master reel-to-reel tapes each 34 days while retaining cassette
recordings of relevant portions of the master reel and whether
the Police Department might obtain authorization for the destruction
of recordings in advance of their creation.
Question No. 1:
May the Police Department recycle its master reel-to-reel tapes
each 34 days while retaining cassette recordings of relevant portions
of the master reel of very important matters as "permanent" records?
Answer:
No.
Discussion:
The Attorney General opined in 64 Ops.Cal.Atty. Gen. 435 (May,
1981) that tape recordings of police telephone and radio calls
for purposes of recording accident reports, times of police and
ambulance responses to such reports, and for use in internal affairs
investigations, are public records within the meaning of Government
Code Section 6200 and "may not be destroyed except as provided
by [Government Code] Section 34090." An earlier Attorney General
opinion had stated that a tape recording made of a city council
meeting was not a public record and need not be retained if it
was only made to assist the city clerk in the preparation of minutes.
64 Ops.Cal.Atty. Gen. 317 (April, 1981).
Subsequently, in a letter opinion of the Attorney General dated
July 1, 1981, and signed by Chief Deputy Michael Franchetti, the
Attorney General attempted to reconcile the two opinions. At
that time the Attorney General indicated that if the police
Inter-Com to Charles Thayer,
Chief of Police
Page Two
January 21, 1982
recordings were made for a temporary purpose, it might be possible
t~ destroy the tapes after the purpose had been served.
Thereafter, however, AB 1023 became effective January 1, 1982
adding a new section 34090.6 to the Government Code which permits
the destruction of records of telephone and radio communications
maintained by police departments after 100 days, if such destruction
is authorized by both a resolution of the city council and the
written consent of the city attorney. In our opinion, this statutory
procedure must be followed. As stated very recently by the California
Supreme Court in People v. Zamora, 28 Cal.3d 88, 98 (1980), the
destruction of such records "may only be done in the manner provided
for by statute."
Since the master reel-to-reel recording is a public record, it
cannot be destroyed except in compliance with Section 34090.6.
This section does not authorize the selective copying of the original
recording on cassette tape and erasure of the master without compliance
with the destruction statute. Accordingly, such a procedure would
not be appropriate.
Question No. 2:
Is the authorization of the destruction of records in advance
of their creation a valid procedure?
Answer:
No.
Discussion:
Some municipalities in Orange County have adopted a procedure
whereby the city council may adopt a resolution authorizing the
destruction of records created both before and after the adoption
of the resolution. This procedure is of extremely questionable
legal validity.
In the recent case of People v. Zamora, supra, the California
Supreme Court placed great emphasis on the precise technical com-
pliance with Government Code Section 34090 (the predeceasor to
Government Code Section 34090.6) in determining the validity of
the destruction of public records. Although the matter dealt
with the destruction of citizen complaints against police officers,
the case is instructive as to the Court's position with respect
to the destruction of any city record. In that matter, the City
Inter-Com to Charles Thayer,
Chief of Police
Paqe Three
January 21, 1982
Council of the City of Los Angeles, pursuant to request of several
city departments, authorized the destruction of records more than
five years old. Included within the authorization was the authority
to destroy records of citizen complaints against police officers.
Two weeks after the records had been destroyed, the defendant
in People v. Zamora was accused of assault and battery on a police
officer. Predictably, he raised the defense of excessive force
and sought to discover the records as to one of the officers which
had been earlier destroyed. Although there was no evidence of
any bad faith on the part of the City, sanctions were imposed
against the prosecution for the destruction of the records. The
California Supreme Court concluded that the destruction of the
records was not valid under Government Code Section 34090. Although
the destruction of the records had been authorized by the City
Council, the Court concluded that the Council's approval had apparently
been made under the mistaken impression that the records were
no longer useful. The Court characterized the request by the
police department as vague and misleading in that it requested
the destruction of miscellaneous records without disclosing the
significance of the records nor the purpose for which the
destruction was sought. See 28 Cal.3d at 98.
Clearly if records are not even in existence, the City would be
hard pressed to justify a resolution authorizing their destruction
since the significance of the records cannot be evaluated when
they are yet to be created. It would, therefore, appear that
should the City be challenged on the adoption of a resolution
authorizing the destruction of records not yet in existence, the
justification to support the action would most likely be lacking.
Accordingly, such a resolution could result in the dismissal of
valid criminal complaints simply because the procedures of Govern-
ment Code Section 34090.6 may not have been followed precisely.
DKS:cs:D:01/08/82
JGR:DKS:cs:R:01/20/82
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