Peace Officer Personnel Files and the California Public Records Act

ZACHERY LOPES, ESQ.
Associate

ROBERT M. WEXLER, ESQ.
Partner
Rains Lucia Stern, PC

Peace officers are experiencing an unprecedented level of public scrutiny generally, and in California specifically. Today, it is not uncommon for officers’ actions to be reviewed not only internally by their supervisors, but also by a number of “review boards” both internal and external to the law enforcement agency. What’s more, public interest groups have progressively inserted themselves into the fray by demanding access to audio, video and documentary evidence concerning peace officer conduct during arrests, uses of force, critical incidents and other law enforcement activities. With police actions being increasingly captured on video, and given the inescapably sensational and emotional nature of much of that footage, the public’s scrutiny of law enforcement actions will likely continue its skyward trend.

As a result, it is more important than ever for law enforcement association leaders to understand the laws governing public requests for information and the proactive role they must play in protecting the confidentiality rights of their members. This article examines various aspects of the California Public Records Act (California Government Code section 6250, et seq.; CPRA) and discusses how association leaders should work with their respective departments to ensure full compliance with their members’ rights, keeping in mind the interplay between three often competing factors with each CPRA request: 1. The public’s right to access “public records,” 2. Peace officers’ right to the confidentiality of certain information and 3. Employing agencies’ political need to appear open and transparent.

CPRA Requirements and Exemptions

The CPRA1 was enacted in 1968 in response to the legislature’s finding that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state” (Gov’t Code section 6250). It is premised upon the foundation that all public records are open for inspection and copying, except those categories of records specifically designated as “exempt” from disclosure (Gov’t Code sections 6253[b], 6254). Public records are broadly defined as “any writing containing information relating to the conduct of a public’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristic,” including “any handwriting, typewriting, printing, photo stating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored” (Gov’t Code sections 6252[e] and [g]).

In practice, a police or sheriff’s department, or its respective city or county, will receive a “request” for certain categories of information under the CPRA by a public citizen or group of citizens, such as the ACLU. The agency then has 10 days to inform the person(s) making the request whether or not the request seeks records “disclosable” under the CPRA or whether such records are exempt from disclosure (Gov’t Code section 6253[c]).
For many peace-officer-related public record requests, the CPRA’s exemptions for “personnel … or similar files,” “investigatory files” or “records of … investigations,” and “records, the disclosure of which is exempted or prohibited pursuant to federal or state law” are the most relevant, and the exemptions most readily employed to protect confidential law-enforcement-related information (Gov’t Code sections 6254[c], [f] and [k]). Penal Code section 832.7 designates as confidential the contents of a peace officer “personnel records,” and any information “obtained from these records.” Such information generally may only be obtained in court through a Pitchess motion, pursuant to Evidence Code sections 1043 and 1046.
What exactly constitutes a confidential “personnel record,” however, is not always clear. Penal Code section 832.8 defines “personnel records” as “any file maintained under” a peace officer’s name “by his or her employing agency and containing records relating to … personal data … medical history … employee benefits, employee advancement, appraisal, or discipline, complaints or investigation of complaints,” and other information the disclosure of which would constitute an invasion of personal privacy. Thus, the spate of recent CPRA requests seeking access to records relating to employee discipline is exempt from disclosure.

Significantly, however, the “personnel files” exemption protects from disclosure only those records or information found within a personnel file that is “generated in furtherance” of reviewing officer conduct (Commission on Peace Officer Standards and Training v. Superior Court [2007] 42 Cal.4th 278). A strictly factual summary of an incident being investigated by an employing agency arguably might not fall within this exemption, nor might information derived from a source independent of a confidential personnel file, even if the information is also contained in a protected file. Moreover, the name and badge number of peace officers are generally public information, including those officers involved in on-duty shootings, absent particular circumstances where an officer may demonstrate evidence of a “particularized” threat of harm (Long Beach Police Officers Assn. v. City of Long Beach [2014] 59 Cal.4th 59).

Another major exemption for law-enforcement-related information is the “investigatory” or “investigation files” exemption (Gov’t Code section 6254[f]). This exemption covers “[r]ecords of … investigations conducted by … any state or local police agency, or any investigatory or security files compiled by any … state or local police agency for … law enforcement … purposes,” among other categories. This exemption has a broad application in the peace officer context. 

Of note, this exemption may be particularly relevant to CPRA requests for data obtained from a peace officer’s body-worn camera (BWC). This is a largely untested, but interesting, legal question and there exist cases that shed light on how a court might view a challenge to the disclosure of such information under the CPRA. In Haynie v. Superior Court of Los Angeles County (2001) 26 Cal.4th 1061, the Supreme Court considered a CPRA request filed by a man detained by police officers, which sought all audio recordings of his conversations and interactions with the officers during the detention. The requestor’s petition asked the court to exclude “routine” and “everyday police activity” from the exemption for “records of … investigations conducted by” law enforcement agencies, which the police department cited in its refusal to release the information (Gov’t Code section 6254[f]). The court refused the petition’s request and stated: “we do not mean to shield everything law enforcement officers do from disclosure. Often, officers make inquiries of citizens for purposes related to crime prevention and public safety that are unrelated to either civil or criminal investigations. The records of investigation exempted under section 6254(f) encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency. Here, the investigation that included the decision to stop Haynie and the stop itself was for the purpose of discovering whether a violation of law had occurred and, if so, the circumstances of its commission. Records relating to that investigation are exempt from disclosure by section 6254(f).”

The court’s broad definition of what falls within the “investigation files” exemption is insightful. Moreover, the court’s refusal to exclude “routine” or “everyday police activity” from the exemption further broadens its reach. So, too, does the fact that the exemption extends indefinitely, even after an investigation is closed (Rivero v. Superior Court [1997] 54 Cal.App.4th 1048; Williams v. Superior Court [1993] 5 Cal.4th 337). This line of cases appears to favor allowing public agencies to claim that video from BWCs is exempt from the disclosure requirements of the CPRA.

Association Leaders Must Play an Active Role in Protecting Their Members’ Rights

Although it is the government agency that determines whether to disclose or withhold requested information, there is a role for a proactive law enforcement association to play in these matters. There is nothing that precludes a POA, DSA or other law enforcement association from partnering with the respective employing agency to review CPRA requests and discuss the applicability of any relevant exemption from disclosure. Often, the interests of the employing agency and those of the association are aligned. However, the public agency is saddled with the political need to appear open and transparent.

Where it may not be politically expedient for a police agency to publicly fight a CPRA request to disclose information, a law enforcement association is often unencumbered in that regard. Associations may seek injunctive relief in court, preventing the disclosure of arguably confidential information where a governmental entity may be politically unwilling to do so. For such action to prevail, however, this option must be invoked prior to the public agency’s release of the information. For this reason, associations must ensure that they are involved in and informed of the process from the beginning.

About the Authors

Zachery Lopes is an associate with Rains Lucia Stern and is based out of the firm’s Pleasant Hill office. Zach represents clients in civil, criminal and administrative matters. Robert Wexler is a partner with the firm in its Los Angeles office. Rob heads the Southern California Collective Bargaining Practice Group. A copy of this article can be obtained on the firm’s website, www.RLSlawyers.com.

1Federal law also governs requests for public disclosure, through the Freedom of Information Act (5 U.S.C. § 522). The FOIA is beyond the scope of this article, as the vast majority of public requests for information will be brought and construed under the CPRA. However, know that the provisions of the FOIA and the CPRA are similar, and that federal law construing the FOIA is “persuasive authority” for construing the CPRA.