Q: For the last few weeks, I’ve been investigating an officer-involved shooting: Needless to say, there are ton of issues involved here, but I keep running into walls finding documents because of the Peace Officer’s Bill of Rights here in Calif. I wondered if you could give me a call for a few minutes and chat about some background and what information I may or may not be entitled to.
A: Here is detailed information on the applicable law related to the police records you are trying to get. Again, the bottom line is that it should be hard for the agency to refuse to disclose statistical information that is not linked to a particular individual and, especially after this hot-off-the-presses case, you may also be able to learn some specifics of particular officer shootings to the extent the information is not directly linked to disciplinary records.
California has enacted fairly strong statutory protections against release of records related to peace officers. The Penal Code, which is incorporated into the Public Records Act via Gov’t Code § 6254(k), provides that “[p]eace officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceedings …” Penal Code § 832.7. “Personnel records” is defined to include the records of investigations of complaints against a named officer. See, e.g., City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1423 (1995). The court in City of Hemet found that this Penal Code section creates a general privilege (and one that is not limited to judicial proceedings) with respect to personnel records related to police officers, with a limited exception in the context of discovery in connection with court proceedings. Id. Subsequent decisions have generally upheld the denial of access to records related to complaints against police officers, at least where the officers were named in the relevant records. See, e.g., Police Assn. v. City of Berkeley, 167 Cal. App. 4th 385, 405 (2008) (the “records and findings” of Berkeley’s Police Review Commission protected from disclosure under Penal Code § 832.7(a)); Davis v. City of San Diego, 106 Cal. App. 4th 893, 901 (2003) (Penal Code § 832.7 precluded San Diego from releasing its citizen’s review board’s narrative report about a police shooting).
Note, however, that the same Penal Code provision states that “a department or agency that employs peace or custodial officers may disseminate data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its officers if that information is in a form which does not identify the individuals involved.” Cal Pen Code § 832.7(c). This provision was added in 1989, probably in reaction to a California Attorney General opinion that had concluded the year before that “Section 832.7 of the Penal Code by its confidentiality and disclosure provisions bars a public agency from compiling and releasing to the public statistical information concerning the types of citizens’ complaints filed pursuant to section 832.5 of the Penal Code and the disposition of such complaints.” 71 Ops. Cal. Atty. Gen. 247 (July 13, 1988). While the word “may” in this provision may limit its usefulness in forcing the release of these records, it may be helpful to point it out to the police department. Although it would not assist you with respect to which officers were involved, it may at least get you some of the related information.
To the extent you are not seeking the names of officers involved (or would find records useful even if the names were not included), you might also support your position by citing to the 2007 case Commission on Peace Officer Standards & Training v. Superior Court, 42 Cal. 4th 278 (2007), in which the Supreme Court considered whether the Penal Code provisions permitted withholding the names and basic employment information about peace officers listed in a particular Commission database. That case is something of the converse of what you are looking at here in that the court said that basic employment information was not included within the prohibition against dissemination of peace officer personnel records even if the employees’ names were disclosed. In reaching that decision, the court noted that “the legislative concern [in enacting the peace officer personnel record statutes] appears to have been with linking a named officer to the private or sensitive information listed in section 832.8. The latter statute applies to files ‘maintained under that individual’s name by his or her employing agency and containing records relating to’ the enumerated types of information. (§ 832.8.) Thus, the statute prevents the unauthorized disclosure of the specified types of information concerning a named officer. Conversely, a law enforcement agency “may disseminate data regarding the number, type, or disposition of complaints” against its officers “if that information is in a form which does not identify the individuals involved.” (§ 832.7, subd. (c).).” Id. at 295 (emphasis added). This analysis would seem to support an argument that complaint records that do not name or otherwise identify a particular individual should not be exempt from disclosure. See also Davis v. City of San Diego, 106 Cal. App. 4th 893, 900 (2003) (“[R]easonably read in its entirety, section 832.8 defines as a personnel record any report naming an individual officer and relating to a complaint or investigation of complaint about an event the named officer participated in or perceived and that concerned the manner of the officer’s performance of duty.”) (emphasis added). There may be a decent argument, though, that the specific language of Penal Code 832.7(c), identifying particular statistical information that may be released as long as the officer is not named, precludes an interpretation that any information may be released as long as the officer is not named.
This doesn’t necessarily mean that you can’t learn anything about specific incidents, though. In 1997, the Court of Appeal said that a sheriff’s department could not refuse to disclose the names of officers who had been involved in a shooting based on various PRA exemptions, including the personnel provisions of the Penal Code. In ordering the release of these names, the court observed that “[l]aw enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state. In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers. Disclosure is all the more a matter of public interest when those officers use deadly force and kill a suspect.” New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 104-105 (1997). Note that no disciplinary records were sought in this case — just the names of those involved. Subsequent decisions arguably called into question this decision, including a California Supreme Court case holding that the PRA did not require an agency to disclose records related to a terminated police officer’s disciplinary records, including the officer’s name. Copley Press, Inc. v. Superior Court, 39 Cal. 4th 1272, 1280 (2006). But just last week, the Court of Appeal ruled that neither the PRA nor the Penal Code provisions authorize an agency to refuse to release the names of officers involved in shootings where no citizen complaint is involved. Long Beach Police Officers Assn. v. City of Long Beach, 2012 Cal. App. LEXIS 109 (Cal. App. 2d Dist. Feb. 7, 2012). The court did say that in some instances, legitimate safety concerns might militate against disclosing such names but it said specific evidence supporting such an assertion was required.
Finally, keep in mind that under the PRA, “disclosure is favored,” and therefore “all exemptions are narrowly construed.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321 (2009). Thus, if there are any valid exemptions that apply to the records that you seek, but the agency could, for example, redact that information, then the agency should release the records in a redacted form. Gov’t Code § 6253(a).
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.