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BART POA Wins Injunction Protecting Officer Privacy

Posted on Sunday, June 01, 2014 at 12:00AM

KEVIN A. FLAUTT AND
BRENDON P. PARENTI
Associate Attorneys
Mastagni, Holstedt, Amick,Miller & Johnsen

     In BART Police Officers’ Association v. Bay Area Rapid Transit District et al., the BART Police Officers’ Association (BPOA) successfully defended the privacy rights of its members and prevented the unlawful disclosure of the name of an officer under investigation in a critical incident. The Department sought to release the name of an officer, identifying him as the subject of a disciplinary investigation following a use-of-force incident that gained widespread notoriety.
     Following the use-of-force incident, a citizen made a complaint against the officer, and the Department made statements to the media that the incident was under investigation. The Department informed the officer and BART POA that it intended to release the officer’s name to the media, identifying him as the officer under investigation for the incident.
     BART POA President Keith Garcia and Vice President Tracy Gurecki immediately moved to protect the officer’s privacy. BART POA sent a cease-and-desist letter to the Department, requesting that the officer’s name not be released. After receiving BART POA’s letter, the Department informed BART POA that it nonetheless intended to release the officer’s name. BART POA quickly prepared an application for a Temporary Restraining Order in response to the imminent disclosure. However, before BART POA filed the restraining order, BART POA secured an agreement to preserve the officer’s privacy until the dispute could be heard by a court on an expedited basis.
     On April 17, 2014, the Alameda Superior Court and the parties agreed to a preliminary injunction. The injunction prevents the release of the officer’s name until at least 30 days after the California Supreme Court issues a decision in a closely related case currently on review, Long Beach Police Officers Association v. City of Long Beach.
     In the case of Long Beach, the Los Angeles Times submitted a California Public Records Act (CPRA) request for the names of officers involved in a shooting on December 12, 2010, in addition to the names of all officers involved in officer-involved shootings from January 1, 2005, to December 11, 2010. The Appellate Court held that the names of officers involved in officer-involved shootings did not fall into any exemption and the City must disclose the information requested. The Supreme Court granted review in April 2012. The Supreme Court heard oral arguments in Long Beach on March 4, 2014, and is expected to issue an opinion this summer.
     In addition to Long Beach, the Supreme Court is also considering another important and related case, Federated University Police Officers Association v. Superior Court. In that case, the Los Angeles Times and the Sacramento Bee submitted CPRA requests to force disclosure of peace officers’ names in a report about the use of pepper spray at UC Davis in 2011. The Appellate Court held that exemptions to disclosure could not “reasonably be interpreted to include the identity of officers, who were compelled to give eyewitness accounts of the pepper spray incident in order to assist in the preparation of agency-initiated reports whose avowed purpose was not to discipline individual officers, but to promote accountability and transparency.” The Supreme Court granted review, and deferred further action pending the consideration and disposition of Long Beach. The Supreme Court issued a stay preventing the release of the names of the officers until further order of the court.
     Until the California Supreme Court has issued a decision in Long Beach, there are two important cases that are controlling on the issue of releasing the name and identity of a peace officer: Copley Press Inc. v. Superior Court and Commission on Peace Officer Standards And Training v. Superior Court. In Copley, the California Supreme Court reviewed a case concerning the release of documents from an officer’s disciplinary appeal, including the officer’s name. The court held that an officer’s name is protected and confidential when it is sought in connection with information pertaining to a confidential matter, such as an internal investigation or disciplinary proceeding. Based on this holding, the court held the officer’s name to be confidential and prevented its release.
     The Supreme Court later reaffirmed its holding in Copley in Commission on Peace Officer Standards and Training. There, the court held that officer names, employing departments and dates of employment are not confidential. However, the court specifically distinguished this situation from Copley, stating that while a name on its own is not confidential, it would be if it identified an individual as the subject of a complaint or investigation.
     Based on these two Supreme Court cases, an employer may not release the name of a peace officer if it identifies the officer as the subject of a citizen complaint or disciplinary investigation.
     Cases such as this will establish the legal framework for how these information requests for the names and identifying information of peace officers must be treated in the future. However, until the Supreme Court issues a decision in Long Beach, officers can protect their rights by pursuing injunctions like the one BART POA won in this case.

About the Authors
Mastagni attorneys Kevin A. Flautt and Brendon P. Parenti, along with David E. Mastagni and Jeffrey R.A. Edwards, represented BART POA in this matter. 

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