PEACE OFFICER PERSONNEL RECORDS STILL CONFIDENTIAL
April 11, 2005
On April 7, 2005, the California Court of Appeal (Third Appellate District) ruled, in the case ofCalifornia Commission on Peace Officer Standards and Training (POST) v. Superior Court (L.A. Times), that data provided to POST by law enforcement agencies, regarding whether an officer is hired, promoted or terminated, is confidential personnel information. The L.A. Times made a demand under the California Public Records Act (CPRA) for such information. POST refused to disclose it, stating it was privileged and exempt from disclosure under the CPRA. The Times sued and the California Attorney General successfully represented POST.
The CPRA states that “…access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” In order to deny a request for disclosure, the holder of the records must identify an exemption set forth in the Act, if one exists. One such exemption is for personnel records. The Court held that “(t)here is no dispute that the records sought in this case constitute ‘public records’ within the meaning of CPRA.” The primary issue was whether or not they were exempt as personnel records since, among other things, since they were not held by the officer’s employer.
Penal Code section 832.8 defines an officer’s personnel records, and P.C. 832.7 states that such records are confidential and cannot be disclosed in a civil or criminal proceeding except in accordance with Evidence Code sec. 1043 (“Pitchess” motion). This Court affirmed prior decisions that the Pitchess motion is only applicable in pending litigation. Nonetheless, the Court ruled that “…the term ‘confidential’ has independent significance and imposes a general privilege of confidentiality in peace officer personnel records.”
Peace officer personnel records are defined in P.C. 832.8, in part, as “…any file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following…” items set forth in the section. Although POST is, obviously, not the employing agency, “…its data is derived from forms submitted by participating departments, which are the employing agencies.” Since P.C. 832.7 protects both personnel records and “information obtained from those records,” the information sought by the Times is, in fact, privileged peace officer personnel information.
Another significant point made by the Court is that the privilege is not limited to the specific items set forth in P.C. 832.8 but, rather, any file which contains records relating to items specified in that section. If it does, “…then the entire file is a personnel record and all of the items in the file are confidential.” The Court concluded, after discussing and distinguishing prior court decisions which appeared to limit the definition of peace officer personnel files, by stating that those cases do “…not sanction the release of employment information from the personnel records of thousands of peace officers throughout the state.” Those other cases merely hold that “…information to which the public is otherwise entitled may not be shielded by placing it inside a personnel file.” The data sought by the Times from the POST database, however, “…is derived from employing agencies’ existing personnel records and is comprised of information ordinarily found in personnel files.”
The firm of Jones & Mayer was honored to have been consulted by POST on this matter and hope that our input was of some assistance in reaching this positive outcome.
HOW THIS AFFECTS YOUR AGENCY:
There were serious concerns raised as a result of the trial court’s decision, which declared these items were subject to public disclosure, as to whether department’s could, or should, continue to report such information to POST. That concern is now resolved and agencies can continue to comply with the POST requirements without the concern that such material would be available for public disclosure.
It is imperative that agencies protect the confidentiality of its peace officers personnel records including, but not limited to, defending against demands for disclosure through a variety of means, such as CPRA demands and Pitchess motions. Unless, and until, the law changes, employers have a duty to act in this manner.
Kudos must go to POST for recognizing this as an important issue and to the Attorney General and his legal staff for their successful advocacy in this case.
As always, we urge law enforcement management to confer with legal counsel before undertaking action which requires legal interpretation. If you wish to discuss this matter in greater detail, please feel free to contact me by phone (714 – 446-1400) or by e-mail mjm@jones-mayer.com .