Vol. 23 No. 11- CPRA & Critical Incidents

June 5, 2008

Recently the California Attorney General published an official opinion (No. 07-208)  concluding that, absent justification, law enforcement agencies are obligated to disclose names of public sector employees involved in critical incidents, such as officer involved shootings.  Based upon statutory and case law we concur with the opinion of the Attorney General.  This issue has become somewhat controversial since there are some who disagree with the Attorney General’s conclusion.

CPRA Exemptions

The California Public Records Act (CPRA) is based on the premise that all documents created and/or generated by the public sector, for purposes of operating the public’s business, are available for inspection by members of the public unless an exemption is specifically set forth in the Act.  Generally speaking, there are relatively few exemptions to the mandate that all public records shall be made available to the public.  (This is very similar to the federal Freedom of Information Act (FOIA), upon which the CPRA was based.)

The CPRA is set forth in Gov.Code §6250 et seq. and is, in many instances, very difficult to read and/or interpret.  Some of the language is convoluted and appears, on occasion, to be contradictory to other provisions of the Act. One category of public records which is, unquestionably, exempt from the mandate of disclosure are those documents considered personnel records and/or personnel information.  There has been significant litigation over the years interpreting what is or is not personnel information.

Administrative vs. Criminal Investigations

The primary issue in the Attorney General’s Opinion focuses on whether or not names of peace officers are exempt from disclosure under the CPRA.  It is well established law in California that peace officers have more protections regarding confidentiality of personnel information than other public sector employees.  As such, it has long been accepted that issues arising out of disciplinary actions involving peace officers are confidential.  Furthermore, the law explicitly states that in order to access
personnel information of peace officers in a criminal, civil or administrative proceeding, one must file a motion pursuant to Evid. Code §1043, known as a “Pitchess motion.”

Penal Code §832.7 establishes the confidentiality of peace officer personnel information and, in fact, in 1999 the Attorney General published an official opinion (No. 99-503) stating that if an employer willfully fails to follow the requirements set forth in Pen. Code §832.7 it could be considered a misdemeanor, pursuant to Gov. Code §1222. The obligation to protect such information, therefore, is obvious.

There have been a series of court decisions recently which have addressed the question of what constitutes personnel information of a peace officer. A clear distinction has been drawn regarding information which is available to the general public versus information which arises out of a personnel action involving peace officers. For example, in the case of New York Times vs. Superior Court (Thomas), 52 Cal.App.4th 97 (1997), the Court of Appeal ruled that, after all relevant investigations had been completed, the identities of uniformed deputy sheriffs who had been involved in a fatal shooting of an individual needed to be made public.  The theory behind the Court of Appeals’ decision focused on (1) the fact that the officers were in uniform and, by law, were wearing name tags on their uniform; (2) the incident occurred in the public; and (3) the subsequent investigation conducted by the sheriff was a criminal investigation to determine whether the use of deadly force was justified pursuant to provisions of the California Penal Code.  As such, the Court concluded that the names of the officers did not come from a “personnel investigation” and, therefore, were not protected under Pen. Code §832.7.

The apparent confusion on the part of some was created as a result of a decision by the California Supreme Court in the case of Copley Press, Inc. vs. Superior Court, 39 Cal.4th 1272 (2006).  That case specifically addressed the question of whether the name of a deputy sheriff, who appealed his termination from employment, was subject to public disclosure.  The newspaper alleged that the name was not protected under Pen. Code §832.7.  However, the Supreme Court ruled that the name of the officer was protected since the officer was appealing the imposition of discipline to the Civil Service Commission.  As such, this was not a matter where the officers name was in the public domain and the Court – in our opinion most correctly – ruled that the identify of the deputy was exempt from disclosure under the California Public Records Act.

The Supreme Court addressed the issues raised by Copley Press, and set forth in the New York Times case, wherein the Court of Appeal had stated that names of individual employees were never exempt under the CPRA.  The Supreme Court, in Copley Press, disapproved that finding, but did so in a very narrow fashion.  The Court stated that the Court of Appeal “is simply incorrect, at least insofar as it applies to disciplinary matters like the one at issue here.  Thus, we disapprove New York Times Co. v. Superior Court…, to the extent it is inconsistent with the preceding discussion….”  The Copley Press decision did not overturn the holding in New York Times, except as to that limited portion.

It is important to note that if a law enforcement agency conducts an internal, administrative, investigation of an officer’s conduct to determine, for example, whether it complied with department policies and procedures, such an investigation would be considered a personnel investigation and all information arising there from would be confidential. However, the investigation conducted by the sheriff in the New York Times case was not an internal, administrative, investigation but was a criminal investigation.  Such investigations are conducted by many agencies, or by the county district attorney, after an officer is involved in using significant force, in particular deadly force, and that investigation is not considered protected personnel information.

Withholding Names

There are multiple reasons which would justify the withholding of the identity of an officer involved in official activity.  The CPRA recognizes that such situations could arise and includes, among other things, justifications based upon the need to be able to complete the investigation of an incident; the need to provide for the safety of an officer involved in such activity; or the need to protect the identity of an undercover police officer. As such, it is imperative that a law enforcement agency seek out advice and guidance from its legal counsel in determining whether or not the disclosure of an officer’s name who was involved in a critical incident could, or should,  be disclosed to the public.  Additionally, the timing of such disclosure, if it is going to occur, must also be considered.


As we have said on many occasions, reasonable minds can differ.  In this particular case there is an obvious difference of opinion but, from our perspective, the conclusion of the Attorney General is totally supported by current law in California.  As stated above, if the employer – the law enforcement agency – is investigating the activities of it’s employee in order to ascertain whether the employee complied with it’s policies and procedures, such an investigation constitutes a personnel matter and, if it involves a peace officer, must be kept confidential.  However,  a criminal investigation, which is conducted to determine whether or not the individual complied with laws of California, would not constitute a personnel matter and would be no more confidential than if it were a criminal investigation of the activities of any individual member of society.

We always urge that you confer with your department’s legal advisor and in a matter such as this, it is unquestionably a necessity.  If you wish to discuss this case in greater detail please feel free to contact me at (714) 446-1400 or via email at mjm@jones-mayer.com.