Q: I asked the Police Department if a police officer was on administrative leave after being arrested for felony animal cruelty. They said he was still an employee, but wouldn’t say if he was on leave or not. Are they allowed to do that?
A: It is unfortunate that the police department will not answer your very basic question relating to the status of its officer. From a public relations perspective, it would seem that an agency – and particularly a police agency – should be motivated to be transparent in this regard, particularly where the police officer in question is facing felony charges.
That said, there’s nothing that requires public employees to answer questions, and given the police officer’s employment status is likely related to internal disciplinary proceedings, the agency is probably relying on Penal Code § 832.7 as justification for being tight-lipped. Specifically, Penal Code§ 832.7 provides fairly ironclad protection for police personnel records, including records related to administrative proceedings for discipline.
You could argue that you are not seeking any detailed personnel records or specifics on the presumptive internal disciplinary proceedings, but rather more general information related to the employment status of one of the department’s officers. An answer such as “on paid leave” doesn’t reveal anything about what’s going on internally in connection with the PD’s investigation. At the very least, you might want to ask your contact at the PD for its justification for not giving you this information, including the specific statute that it is claiming protects this information (and records).
You will also want to keep a close eye on any pleadings filed in court in connection with the officer’s pending felony charges, as these may contain valuable information that would assist in your reporting. Under the First Amendment, there is a presumptive right of access to court records that can only be overcome if a very high standard is met.
Therefore, a record (or information contained in a particular record) that is exempt from disclosure under the Penal Code or the Public Records Act does not necessarily enjoy the same protection once it is filed with the court.
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.