Can the CPRA be used to obtain records from hearings held by administrative law judges to review the decision whether to decertify a peace officer?

Answer

Records of administrative appeals of decertification of a peace officer are generally subject to public disclosure.

The California Public Records Act (“CPRA”) generally requires a state or local agency to disclose any public record in its possession on request to any member of the public unless the record falls within a specific statutory exemption from disclosure. Govt. Code §§ 7922.525, 7922.530.

The Commission on Peace Officer Standards and Training (“POST”) has the authority to decertify California peace officers. Within POST, the Peace Officer Standards Accountability Division (“Division”) is primarily responsible for reviewing agency investigations and, if necessary, conducting its own investigations into conduct that could result in decertification. If the Division finds that serious misconduct warranting decertification did not occur, it must notify the officer of its findings and close the case with no further action from POST. If, however, the Division finds reasonable grounds to decertify the officer, it must notify the officer involved, in writing, of its intent to decertify, the reasons for the determination, an explanation of the decertification process, and the officer’s right to appeal. See Penal Code § 13510.85(a)(1).

If an officer appeals, the Peace Officer Standards Accountability Board and POST Commission review the matter. See Penal Code § 13510.85(a)(4)-(5). “The commission shall return any determination requiring action to be taken against an individual’s certification to the division, which shall initiate proceedings for a formal hearing before an administrative law judge in accordance with the Administrative Procedure Act.” Penal Code § 13510.85(a)(6).

As a general matter, records of the Board’s hearings, the Commission’s review and any hearing before an administrative law judge are subject to public disclosure. According to the relevant statute, notwithstanding laws that may protect peace officer personnel records in other circumstances, “the hearings of the board and the review by the commission under this section, administrative adjudications held pursuant to paragraph (6) of subdivision (a), and any records introduced during those proceedings, shall be public. These public records may, in the discretion of the division, be redacted for the reasons set forth in paragraphs (6) and (7) of subdivision (b) of [Penal Code] Section 832.7.” Penal Code § 13510.85(b).

According to those paragraphs of Penal Code section 832.7:

(6) An agency shall redact a record disclosed pursuant to this section only for any of the following purposes:

(A) To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.

(B) To preserve the anonymity of whistleblowers, complainants, victims, and witnesses.

(C) To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about possible misconduct and use of force by peace officers and custodial officers.

(D)

(i) Where there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.

(ii) In an action to compel disclosure brought pursuant to Section 7923.000 of the Government Code, in determining whether a redaction made pursuant to clause (i) is appropriate, a court shall consider whether a particular peace officer is currently operating undercover and their duties demand anonymity.

(7) Notwithstanding paragraph (6), an agency may redact a record disclosed pursuant to this section, including personal identifying information, where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information.

Penal Code § 832.7(b)(6)–(7).