Investigative and disciplinary records pertaining to police officers
Q: I requested information from the Police Department on an elder abuse investigation in the community. Through my open records request I was hoping to determine why the detective assigned to investigate, arbitrarily dismissed the case. The department gave no reason. I also asked whether there was any disciplinary action ever taken against the detective. But the department has declined to respond to my request.
A: Under the California Public Records Act, records in the possession of public entities are presumed to be public unless one of the Act’s enumerated exceptions to disclosure applies. Although you do not specify the exact information you requested from the police department, it appears from your email that you are already aware that the Act contains an exemption for records of investigations conducted by state or local police agencies, as well as documents in a policy agency’s investigatory files. (Cal. Government Code section 6254(f)).In addition, as you may already know, obtaining disciplinary records concerning a police officer is not a simple matter.
The Public Records Act provides that “records the disclosure of which is exempted or prohibited pursuant to federal or state law” are not required to be disclosed under the PRA. Govt. Code section 6254(k). Section 832.7(a) of the California Penal Code states that “peace officer or custodial officer personnel records . . . are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” Under California Penal Code Section 832.8, “personnel records” includes “complaints, or investigations of complaints,” as well as records of employee discipline. Sections 1043 and 1045 of the California Evidence Code (reproduced in full below) set forth a procedure for making a written motion to obtain police officer personnel records (known as a Pitchess motion) in the context of litigation.
To date, courts interpreting these Penal Code sections in the context of the Public Records Act have concluded that they provide an exception to the Act’s presumption of disclosure.All this being said, you are still entitled to a response to your Public Records Act request. Under Government Code section 6253(c), “[e]ach agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.” In addition, under Government Code section 6255(b), if your request was made in writing, a determination by the public agency that the request will be denied must also be in writing.