Police Background Investigation
Q: I was told I failed a background investigation for a volunteer job at my local police department. Later I was given inside information that, only days before, the PD had decided they didn’t want people with disabilities volunteering, because they felt it would involve too much liability. I believe I “failed the background investigation” because it was easier than telling me that they didn’t want disabled people. They will not give me any information on the background investigation, saying that they have to protect the confidentiality of the people who spoke against me. I believe that no one spoke against me and they are hiding behind confidentiality to deny me information. Is there any way I can force them to show me papers on the investigation, even if only to prove that they did do one and I did fail it?
A: It sounds like the police department is relying (at least implicitly) on Section 6255 of the California Public Records Act (“PRA”), which provides that an agency can withhold records by demonstrating “that on the facts of the particular case the public interest served by not making the public record clearly outweighs the public interest served by disclosure of the record.” Cal. Govt. Code Section 6255.
In a case called Johnson v. Winter, an applicant for special deputy status sued for access to his application file after he was denied the special status. 127 Cal.App.3d 435 (Cal. Ct. App. 1982). The sheriff’s department in that case argued that the public’s interest in maintaining the confidentiality of background investigations outweighed the public’s interest in disclosing such application information. The court agreed that “to the extent the file contains matters obtained with the understanding implicit or explicit that such matters would be kept confidential,” the records need not be disclosed. Id. at 439. But the court insisted that the file be examined for information that is not confidential and that such information must be disclosed.
The court noted that the PRA had been interpreted to require that “where nonexempt materials are not inextricably intertwined with exempt materials and are reasonably segregable, segregation and disclosure of the nonexempt materials are required to satisfy the objectives of the act.” Id. at 440. Moreover, the PRA specifically provides that “[a]ny reasonable 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.” Cal. Govt. Code Section 6253(a).
In other words, the police department may be entitled to withhold information related to its background investigation of you to the extent that such information was obtained under a promise of confidentiality. But to the extent that the confidential information (e.g., the identity of the person interviewed) can be redacted or otherwise removed from your application file/background investigation records, you may be entitled to the remaining information.
You might find the information on the CFAC web site about making PRA requests useful. In particular, there is a model PRA request letter here. If you are interested in retaining the services of an attorney to follow up on your request, you might try the CFAC Lawyer Assistance Request Service here.
You might also want to consider contacting an organization such as Disability Rights Advocates (http://www.dralegal.org/), which may be able to offer information or advice with respect to the possible disability discrimination aspect of this issue.
Good luck to you in your efforts.