Police claims officer ‘use of force’ reports personnel not public issue

Answer

Public agencies routinely invoke the Public Records Act’s “personnel” exemption when they believe a request seeks information pertaining to identifiable public officials or employees that is private or controversial.Gov’t Code § 6254(c).

However, this exemption — which was developed to protect intimate details of personal and family life, not official business judgments and relationships, Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045 (2004)– applies only to “personnel files … the disclosure of which would constitute an unwarranted invasion of personal privacy.”Gov’t Code § 6245(c) (emphasis added).

California has enacted stronger statutory protections against release of records related to peace officers, however.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.

While the protections against release of peace officer records are broad and can be difficult to overcome, see e.g., Berkeley Police Assn. v. City of Berkeley, 167 Cal. App. 4th 385, 406 (2008):
“By its enactment of [Penal Code §§ 832.7 and 832.8], the Legislature has weighed the competing interests involved and come down on the side of protecting the confidentiality of records and information gathered in the course of investigating citizen complaints against police officers.”
The authority outlined above may give you a basis for at least pushing back on your request to the extent it does not seek disclosure of individual names.

In addition, as you point out, there would seem to be a strong public interest in having this kind of information disclosed, and any countervailing privacy interests would seem to be undermined by disclosure that would not implicate any particular individual.Keep in mind that under the Act, “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).

Holme Roberts & Owen 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.