LESS PRIVACY FOR PERSONNEL INFORMATION
On Monday, August 27, 2007, the California Supreme Court issued two opinions which declared certain peace officer personnel information available to the public. In the case of Commission on Peace Officer’s Standards and Training vs. Superior Court of Sacramento County (L.A. Times), the California Supreme Court ruled that the “names, employing departments, and hiring and termination dates of California peace officer’s…” are not confidential and are subject to disclosure under the California Public Records Act (CPRA).
In addition, in the case of the International Federation of Professional and Technical Engineers vs. Superior Court of Alameda County (Contra Costa Newspapers), the Supreme Court ruled that the “names and salaries of public employees earning $100,000 or more per year, including peace officers,…” are not exempt from public disclosure under the CPRA.
In the L.A. Times case, the newspaper made a demand, under the CPRA, that the Commission release information pertaining to all appointments of peace officers dating from 1991 through 2001 which were contained in the Commission’s data base. “The information requested was the officer’s name and birth date, employing department, appointment dates, termination dates, and reasons for termination.”
POST denied that request and the L.A. Times took the matter to the superior court which ordered the release of the information. Subsequently POST appealed to the California Court of Appeal which overturned the superior court’s order and ruled that the requested information had been obtained from personnel records maintained by the employing agency and,
therefore, pursuant to 832.7 and 832.8 was confidential and not subject to disclosure.
It is important to note that the superior court did not require the Commission to disclose birth dates of the officers or the reasons for their terminations and that decision was not challenged by the L.A. Times.
The Supreme Court concluded that “the Court of Appeal’s construction of section 832.8, although consistent with the statute’s language, is unreasonable because it would lead to arbitrary anomalous results. Under the Court of Appeal’s interpretation, the circumstance that a document was placed into a file that also contained the type of personal or private information listed in the statute would render the document confidential, regardless of whether the document at issue was of a personal or private nature, and regardless of whether it was related to personnel matters.”
The Supreme Court further stated that, “we do not believe that the Legislature intended that a public agency be able to shield information from public disclosure simply by placing it in a file that contains the type of information specified in section 832.8.”
NAMES OF OFFICERS
The Supreme Court pointed out that the name and employing agency of most peace officers is already public information and publicly known. “Indeed, uniformed peace officers are required to wear a badge or name plate with the officer’s name or identification number.” The badge, as well as the patch worn on the uniform, identifies the employing agency of that officer.
Fortunately, the Court recognized that there are some officers who are not so publicly identified and whose identity must be withheld. The Court ruled that the disclosure of the names of officers who, for example, are working undercover would not be appropriate and that information could be withheld. “We readily acknowledge that throughout the State there are some officers working in agencies who, because of their particular responsibilities, require anonymity in order to perform their duties effectively or to protect their own safety.”
The Times had originally claimed that when a law enforcement agency transferred the information to the POST Commission it was no longer confidential since the Commission is not the employing agency of the officer. The Supreme Court rejected that argument and ruled that “although the Commission is not the “employing agency” of the peace officer whose information it maintains, it’s records nonetheless would be confidential under section 832.7 if they were “obtained from” personnel records maintained by the employing agency.”
That is an important ruling since a decision to the contrary would mean if a law enforcement agency complied with POST regulations, it would be waiving the confidentiality of the peace officer’s personnel records.
SALARIES OF PUBLIC EMPLOYEES
In the Contra Costa Newspaper case, the issue is much more narrow. In that case, the Contra Costa newspaper had requested, under the CPRA, that the City of Oakland provide them “with the names, job titles, and gross salaries of all city employees who earned $100,000 or more in fiscal year 2003-2004….” The request included those whose base salary was less than $100,000 but, because of overtime, the ultimate
amount paid exceeded that amount. The City of Oakland refused to disclose the information claiming that it was exempt from disclosure.
The newspaper filed suit, the superior court allowed two employee unions to intervene, and the court ultimately concluded that, “even assuming a privacy interest existed, that interest is outweighed by the public interest in disclosure.” The City of Oakland chose not to appeal the superior court’s decision but the two unions filed a petition for a writ of mandate in the Court of Appeal. The Court denied the union’s petitions and this matter then came before the California Supreme Court.
All parties agreed that the requested records meet the definition of public records and, therefore, must be disclosed unless one of the statutory exceptions to the CPRA applied. The Court concluded that even if payroll records constituted personnel files, “the disclosure here does not constitute an unwarranted invasion of personal privacy,” and, therefore, the exemption would not apply.
The parties were also in agreement “that individuals have a legally recognized privacy interest in their personal financial information.” However, the Court ruled, the information requested in the instant case does not require disclosure of personal financial matters but rather “involves disclosure of financial matters directly related to the individual’s public employment.”
The Court went on to say that “an individual’s expectation of privacy in a salary earned in publicemployment is significantly less than the privacy expectation regarding income earned in the private sector.” (Emphasis added.)
As in the L.A. Times case, the Supreme Court recognized the need for confidentiality of names of officers under certain circumstances. The union argued that officers working undercover, who receive large amounts of overtime pay, would face disclosure of their identities, and endanger their safety, if they exceeded the $100,000 limit. However, the Supreme Court stated that “if an officer’s anonymity is essential to his or her safety, the need to protect the officer would outweigh the public interest in disclosure and would justify withholding the officer’s name.”
As to peace officers in particular, the union argued that salary information constitutes “personal data” and is, therefore, deemed confidential under Penal Code §832.8. The Supreme Court reiterated the conclusion it reached in the L.A. Times case by stating that “personal data” doesn’t include salary information which arises from the officer’s employment. The Supreme Court goes on to state that “the Legislature easily could have added “salary” to the list of personnel records set forth in Penal Code §832.8. Indeed, the Legislature’s inclusion of one form of compensation – “election of employee benefits” – is a strong indication that the omission of “salary” was deliberate.”
The Supreme Court also rejected the union’s argument that the salary information was “obtained from” the personnel file. The Court stated that city payroll records reflect the salary information of a peace officer and that such information is not excluded from disclosure “merely because some of the facts relied upon in determining the amount of salary may be recorded in the agency’s personnel files.”
As such, the Supreme Court concluded that, “Penal Code §§832.7 and 832.8 do not mandate that peace officer’s salary information be excluded from disclosure under the (Public Records) Act.” The Court’s conclusion is that “because well established norms of California public policy and American public employment exclude public employee names and salaries from the zone of financial privacy protection,” the names and salaries of public employees (including peace officers) earning $100,000 or more per year are subject to public disclosure under the CPRA.
HOW THIS EFFECTS YOUR AGENCY
In both cases, the conclusions are fairly straight forward: the names of peace officers, their employing departments, their hiring and termination dates, and their compensation (if it exceeds $100,000 per year, including overtime pay) are subject to public disclosure under the California Public Records Act. As such, if a CPRA demand is made upon an agency for the information set forth above, that information must be made public.
It is imperative, however, that a determination be made on a case by case basis as to whether or not the disclosure of any or all of this information would pose a danger to any specific peace officer whose records are being requested. As the California Supreme Court pointed out in both the L.A. Times and Contra Costa Newspaper cases, the withholding of such information is proper when anonymity is required “in order (for officers) to perform their duties effectively or to protect their own safety.”
It is important to recall that, just a few short months ago, the California Supreme Court issued a ruling in the case of Copley Press vs. Superior Court (2006) 39 Cal.4th 1272, which held that disciplinary records involving peace officers were confidential and exempt from disclosure under the Public Records Act.However, the Supreme Court makes a specific distinction between the type of information requested under the Copley Press decision and the type of information requested in the instant cases.
As always, we urge that you confer with your agency’s legal counsel before taking any action arising out of the information set forth in this memo. Should you wish to discuss this matter in greater detail, please feel free to contact me at 714 – 446-1400 or via e-mail, mjm@jones-mayer.com.