Are law enforcement officers exempt from having their court proceedings made public?

Answer

Court records are subject to the First Amendment right of access, and can generally only be withheld from the public if a very high standard is met:

 “Under the First Amendment, the press and the public have a presumed right of access to court proceedings and documents.  This presumed right can be overcome only by an overriding right or interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.  The question we consider is whether this presumed right of access under the first amendment should be extended to plea agreements and related documents in criminal cases.”  Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Oregon, 920 F.2d 1462, 1465 (9th Cir. 1990)(citations and quotations omitted).

“It is…well-established that the right of access to public records and proceedings is ‘necessary to the enjoyment’ of the right to free speech.”  Courthouse News Serv. v. Planet, 750 F.3d 776, 786 (9th Cir. 2014).

However, when disclosure is sought of certain types of peace officers records, including records pertaining to complaints against peace officers, the party seeking disclosure must file a motion and provide notice to the governmental agency holding the records.  The specific requirements for the motion can be found in Evidence Code Section 1043 .

This does not mean law enforcement officers are not automatically exempt from having their information of court proceedings available to the public.

“Nothing in this article shall be construed to affect the right of access to records of complaints, or investigations of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which the peace officer or custodial officer participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties, provided that information is relevant to the subject matter involved in the pending litigation.”  Evidence Code Section 1045(a).  It does mean, however, that the court may limit the purposes for which such records may be examined or used.  See Evidence Code Section 1045(d)-(e).

 Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC 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.