Vol. 21 No. 14- Peace Officer Personnel Information And The Public Records Act


September 11, 2006

On August 31, 2006 , the California Supreme Court, affirmed that peace officer personnel information is confidential, even if the officer appeals discipline administratively. In the case ofCopley Press v.Superior Court (County of San Diego), 2006 DAR 11839, the Supreme Court reversed the decision by the California Court of Appeal which had ordered the San Diego County Civil Service Commission to release certain records and information, including the name of a deputy sheriff who was the subject of disciplinary action, pursuant to a request under the California Public Records Act (CPRA).

The Supreme Court ruled that Penal Code sections 832.7 and 832.8 create confidentiality of personnel records, and information contained therein, which are maintained by any state or local agency. Copley Press argued that Penal Code section 832.7 “applies only to records kept by departments or agencies that employ peace officers or are maintained by the employing agency, and that the Commission neither employs peace officers nor creates or maintains…(such) records.” The Court of Appeal had agreed and ruled that the Civil Service Commission was not the “employing agency” of the deputy and, therefore, information presented during the deputy’s appeal of discipline was not personnel information which had to be kept confidential. The Court of Appeal held that since such information was not “personnel information,” the CPRA required disclosure of the material.

The Supreme Court also disagreed with the argument, set forth by Copley Press that the confidentiality referred to in Penal Code section 832.7 applies only to a “criminal or civil proceeding,” and stated that the language in P.C. Section 832.7 established a “general condition of confidentiality.” The Court held that, “it would be unreasonable to assume the Legislature intended to put strict limits on the discovery of police personnel records in the context of civil and criminal discovery, and then to broadly permit any member of the public to easily obtain those records through the CPRA.”

In addressing Copley’s argument that the Civil Service Commission “does not employ peace officers and, therefore, the file it maintains regarding a peace officer’s disciplinary appeal is not a file “maintained…by (the officer’s) employing agency,” the Supreme Court pointed out that the Civil Service Commission is a division of the County and had been designated to hear the appeal in connection with the employer taking punitive action against the officer. Therefore, “it is reasonable to conclude that for purposes of applying the relevant statutes in this case, the Commission is functioning as part of “the employing agency” and that any file it maintains regarding a peace officer’s disciplinary appeal constitutes a file “maintained…by (the officer’s) employing agency” within the meaning of section 832.8.”

The Supreme Court basically concluded that the Court of Appeal had too narrowly interpreted what constitutes an employing agency. “…(F)or purposes of applying section 832.5, the Commission, in hearing disciplinary appeals, is functioning as part of the department or agency that employs peace officers and that any records it maintains regarding such appeals are being maintained by such a department or agency.”

The Court also recognized that the position taken by the Copley Press would put a peace officer who chose to appeal disciplinary action between the proverbial rock and a hard place. “Copley’s interpretation presents peace officers with a Hobson’s choice between their right of confidentiality under Penal Code section 832.7 and their right of administrative appeal (of punitive action) under Government Code section 3304.”

The Supreme Court also rejected Copley’s argument that public policy mandates this information to be made public. Copley argued that because of wide spread concern about police misconduct, “public scrutiny of disciplined officers is vital to prevent the arbitrary exercise of official power by those who oversee law enforcement….” The Court stated that “there are, of course, competing policy considerations that may favor confidentiality, such as protecting complainants and witnesses against recrimination or retaliation, protecting peace officers from publication of frivolous or unwarranted charges, and maintaining confidence in law enforcement agencies by avoiding premature disclosure of groundless claims of police misconduct.” The Supreme Court goes on to state that “… the legislature, though presented with arguments similar to Copley’s, made the policy decision that the desirability of confidentiality in police personnel matters doesoutweigh the public interest in openness.” (Emphasis in original.)

How Does This Affect Your Agency?

This decision, in which this firm, as legal counsel for law enforcement management, totally concurs, reaffirms that Penal Code section 832.7 creates confidentiality of peace officer personnel records and information, in criminal proceedings, in civil proceedings and in administrative proceedings, as well. As such, if a peace officer appeals punitive action, which includes disciplinary action, it is the officer’s choice as to whether or not the appeal will be held in public. The officer could, obviously, waive his or her right to the confidentiality, created under Penal Code section 832.7, in which case the administrative appeal would be held in an open session. And, as the Supreme Court stated, “… although a particular local agency might have good reasons for wanting to grant public access to disciplinary records regarding peace officers…the statutes do not give the employing agency discretion to disclose disciplinary records without the consent of the involved peace officer.”

It is the duty and obligation of the employing entity to insure that the legislatively created rights and protections afforded peace officers are provided to those officers. That includes protecting the confidentiality of peace officers’ personnel information, unless the officer waives his or her right of confidentiality.

Note: This Supreme Court decision will undoubtedly have additional impact upon other cases pending before the Court at this very moment. One of the most significant cases is L.A. Times v.POST which has been pending before the California Supreme Court for a significant period of time. In the L.A. Times v. POST matter, the Times has demanded that the POST Commission release information provided to it by law enforcement agencies (in order to comply with POST requirements and continued membership as a POST agency) regarding personnel actions involving peace officers. The argument of the L.A. Times was that once that material was transferred to the POST Commission it was no longer in the possession of an agency employing the peace officer and, therefore, it was subject to disclosure under the CPRA. It appears the Supreme Court’s decision in the Copley Press case will result in a similar decision in the L.A. Times v. POST case. Obviously, only time will tell.

As always, we urge that before any legal action is taken, you confer with your department’s designated legal advisor. If you wish to discuss this matter in greater detail please feel free to contact me at 714- 446-1400 or by e-mail at mjm@jones-mayer.com.