CSSA Magazine Article- Confidentiality of Peace Officer Personnel Files Under Attack

The law in the State of California explicitly states that peace officer personnel records and information contained therein are confidential.  Government Code §832.7 has, for years,  mandated confidentiality of personnel records of law enforcement officers.  Periodically, efforts are undertaken to change those laws and to open them to public scrutiny.  Just such efforts are under way once again.

Whether one agrees or disagrees with the law, Penal Code §832.7 explicitly creates confidentiality of police personnel information which includes police disciplinary records, as well as citizen complaints filed against officers.  The state law, in addition to maintaining confidentiality of such information, also mandates that procedures be in place, in all law enforcement agencies, to facilitate and receive complaints filed by members of the public against law enforcement officers.  Penal Code §832.5 requires that law enforcement agencies not only have such policies in place, but that written documents be made readily available to members of the public to assist them in filing such complaints.

The law also states that if information contained in personnel files of peace officers is to be disclosed in court proceedings, whether civil or criminal proceedings, the procedures set forth in Evidence Code §1043 must be followed.  Although such procedural requirements exist, the personnel files are relatively easy to access, however, there are certain basic requirements which must be met, and approved by a judge, before such information is disclosed, even in a court proceeding.

There are some who claim that these procedural requirements create secrecy surrounding how peace officers perform their duties.  The implication is that without complete public access to personnel records, officers engage in the performance of their duties without any oversight or review.  In fact, quite the opposite is true.

The manner in which peace officers carry out their duties is subject to review and analysis not only by superiors in their own law enforcement agencies, but by the individual County District Attorneys, County Grand Juries, the State Attorney General, the Federal Department of Justice, and Federal Grand Juries, to name just a few.  Supervision and oversight of law enforcement personnel is substantial and broad-based.  Once again, whether one agrees or disagrees with the protections the State of California has applied to information arising out of police personnel records, there are numerous individuals and entities who have access to those very records, review them and take appropriate action when necessary on behalf of the general public.

Additionaly, California, along with many other states, has a Public Records Act (Government Code §§ 6250 et seq.) which is premised upon the theory that records generated and maintained by the public sector should be available to members of the public.  However, even in the California Public Records Act, there are some, albeit few, limitations to the access of public documents by members of the public.  Among those limitations are access to personnel records – not just peace officer personnel records, but personnel records of all public employees.

CURRENT CASES:

Very recently we have seen three situations receive some degree of press attention involving law enforcement personnel and the public’s right to access their personnel records.  In the case of L.A. Times v. The Commission on Peace Officers Standards and Training (POST), the L.A. Times sued the POST Commission for material maintained by POST on virtually all peace officers in the State of California.  The case is currently pending before the California Supreme Court.

In order for a law enforcement agency to qualify as a POST certified agency, which means, among other things, that the agency must meet all of the standards and training requirements established by POST, the individual law enforcement agency must provide otherwise confidential personnel information about its officers to the POST Commission.  Those records include information regarding dates of hire, promotions, disciplinary actions, assignments and training received by the individual officers terminations from employment and transfers to other agencies.  Although there is no doubt that all of those documents are defined by state law as confidential personnel documents, the L.A. Times argues that once the information is transferred to POST, it is no longer in the possession of the employer and, therefore, no longer confidential.

The L.A. Times also argues that a law enforcement agency need not participate in the POST process and, therefore, would not be obligated to provide POST with the information now being sought by the press.  Law enforcement agencies participation in the POST process ensures the public that California peace officers will meet mandatory minimum standards and ongoing training requirements established by POST.  The argument presented by the Times, creates the proverbial “rock and a hard place.”  If a law enforcement agency wants to participate in the POST program, it must provide the confidential material to the POST Commission.  If the agency refuses to disclose it to the POST Commission, in order to protect the confidentiality as set forth in state law, then it cannot participate in the POST process.

The office of Jones & Mayer, as General Counsel to the California State Sheriffs’ Association, the California Police Chiefs’ Association, and the California Peace Officers’ Association, has filed an Amicus Curiae brief with the California Supreme Court supporting the position taken by POST, urging the Court to continue to maintain the confidentiality of the personnel information provided to POST, pursuant to their rules and regulations.

LAPD RECORDS:

Recently, newspaper articles have reported that the Los Angeles Police Commission, which oversees the operation of the Los Angeles Police Department, has changed a long-standing policy whereby it made available to the public investigations it conducted regarding the use of force by members of LAPD.  Unfortunately, the manner in which the press has reported this change is misleading and inaccurate.  The newspaper articles indicate that the Police Commission has decided to withhold the names of officers involved in shooting incidents.  In fact, the names of officers involved in shooting incidents is public information.

Several years ago in the case of New York Times v. Superior Court (Thomas) (1997) 60 Cal.App.2d 410, the Court of Appeal ruled that the identity of officers involved in officer-involved shootings would be made public upon the completion of the appropriate investigations regarding the incident.  Among other things, the Court pointed out that uniformed officers in the State of California are required to wear nameplates on their uniforms which, obviously, identifies them.  What, in fact, will be withheld are the personnel investigations conducted by LAPD.

Based upon a legal interpretation by the Los Angeles City Attorney, it was determined that after the Police Commission reviews those personnel investigations, they will no longer continue to publish the names of the individual officers.  It is only in respect to the personnel investigation which, once again, by law must be maintained as confidential, that the names of the individual officers will be withheld.  It is not a matter of choice, it is a matter of law.

CIVIL SERVICE COMMISSIONS:

One last item which has surfaced recently involves an attempt by the Association of Los Angeles Deputy Sheriffs to prevent the Los Angeles County’s Civil Service Commission from disclosing records received from the personnel files of peace officers who appeal disciplinary actions taken against them.  The most recent case involved allegations of misconduct against several Sheriff’s deputies which, in fact, resulted in the Civil Service Commission concluding that the deputies engaged in absolutely no inappropriate behavior and should not be disciplined.  Nonetheless, the information that the Commission had reviewed in arriving at that decision, was to be turned over to the media, as it had been routinely done in all other cases.

The deputies union obtained a temporary restraining order barring the media from obtaining those records. The Superior Court judge, however, vacated the restraining order, stating that after the documents were admitted into evidence at the Civil Service Commission appeal hearings, they became public records.  The Court, however, made a point of noting that neither the employees, nor their union, had objected to the media’s access to the information when the case first proceeded to hearing before the Civil Service Commission.  Judge David P. Yaffee is quoted as saying that his decision would have been different had the union objected to the access by the media when the case first proceeded.  “Having heard no such objections, the officers cannot impose a duty upon the Commission to control public access to such information.”

A peace officer who is appealing a disciplinary action to a Personnel Board, a Civil Service Commission, or an arbitrator can demand, pursuant to state law, that the hearing be held as a closed personnel session.  In that way, the information arising from his or her personnel file would be offered as evidence in a closed, not a public, appeal process.  Once the employee demands a public hearing, then the information arising from his or her personnel file cannot be claimed by the employee to be confidential and not available to the public.

CONCLUSION:

Although it appears that the law is clear, it is always subject to interpretation and to challenge.  That is the essence of our judicial system.  We are currently seeing just such challenges to the law, which has been in place for 30 years, creating confidentiality of personnel records of peace officers.  The issue is not whether the law should exist as it currently stands; the issue is whether the law should be enforced as it is currently written?