NAMES OF OFFICERS INVOLVED IN AN OIS ARE SUBJECT TO DISCLOSURE UNDER THE CPRA
On February 7, 2012, the California Court of Appeal, 2d Appellate District, ruled that names of peace officers “are not rendered confidential by any of the statutory exemptions contained in the CPRA (California Public Records Act).” In a unanimous decision the court, in the case of Long Beach Police Officers Association v. City of Long Beach et al. (Los Angeles Times), denied the application by the City and the POA for an injunction to prevent disclosure of such names.
HistoryFollowing the shooting of an unarmed man, who was carrying a garden hose nozzle which officers mistook for a gun, the L.A. Times made a CPRA (Gov. Code 6250 et seq.) demand for the names of those officers and “[t]he names of Long Beach police officers involved in officer involved shootings from Jan. 1[,] 2005 to Dec. 11, 2010.” The City originally agreed to release the names but, ultimately, joined with the Long Beach Police Officers Association (LBPOA) in opposing the demand. The refusal to disclose was based, in part, on a declaration by “LBPOA president Steve James [who] averred he was aware that the shooting review which takes place following an officer-involved shooting can lead to findings resulting in an internal affairs investigation. He [also] expressed safety concerns about releasing the names of shooting officers, … .”
The trial court initially issued a temporary restraining order but subsequently dissolved it and denied without prejudice LBPOA’s request for a preliminary injunction. The trial court held that “the CPRA required disclosure of officer names unless the LBPOA or the City established the names were exempt from disclosure under a statutory exception.” Furthermore, the trial court held that “the release of the names was not an unwarranted invasion of personal privacy (§ 6254, subd. (c)), the names could not be shielded as an investigative report (§ 6254, subd. (f)), and the names were not protected as a part of a police officer’s personnel record (§ 6254, subd. (k); Pen. Code, §§ 832.7 & 837.8). Nor did the trial court find that the public interest in nondisclosure outweighed the public interest served by disclosure of the names. (§ 6255, subd. (a)).”
The trial court also held that “[w]ith respect to the element of irreparable harm, the trial court ruled that neither the LBPOA nor the City had demonstrated that any officer was likely to suffer harmful consequences as a result of disclosure. But it recognized that, potentially, a showing could be made that disclosing the identity of a particular officer would compromise his or her safety.” (Emphasis added.) The City and LBPOA then filed a notice of appeal with the Court of Appeal.
The CPRA
The Court of Appeal addressed the purpose of the CPRA and stated that “[i]n 1968, the Legislature enacted the CPRA ‘for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies.” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1281 (Copley Press).) Consistent with this purpose, the Legislature declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
Nonetheless, said the Court, “the right of access to public records under the CPRA has never been absolute. (Copley Press, supra) In section 6250, the Legislature declared it was “‘mindful of the right of individuals to privacy,’ and the dual concern for privacy and disclosure appears in numerous provisions throughout the CPRA.” The CPRA provides “thatpublic records are open to inspection and must be made available to the public upon request, unless they are exempt from disclosure by an express provision of law.” Section 6254 exempts from disclosure numerous, specifically defined categories of records. Pertinent here, section 6254, subdivision (c) exempts from disclosure “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy . . . .” (Emphasis added.)
Further, “[s]ection 6255, subdivision (a), often referred to as the ‘catchall exemption,’ provides that an otherwise nonexempt record may be withheld if ‘on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.’”
The issue, therefore, focused on whether any of the exemptions contained in the CPRA precluded the disclosure of the information demanded by the L.A. Times—specifically, the names of officers involved in officer involved shootings.
The Court’s Discussion
The Court focused on several prior case decisions: “New York Times Co. v. Superior Court(1997) 52 Cal.App.4th 97, 99 (New York Times), . . . held that the CPRA required disclosure of the names of officers who fired shots at a specific victim.” In that case, “the appellate court rejected the argument that the officers’ names were exempt from disclosure as part of those files, reasoning that what was sought ‘are simply the names of officers who fired their weapons while engaged in the performance of their duties’ and concluding that a public agency may not avoid disclosure ‘by placing into a personnel file what would otherwise be unrestricted information.’”
Subsequently, the California Supreme Court in Copley Press, (Copley Press v. Superior Court (2006) 39 Cal.4th 1272), reached a contrary conclusion regarding the disclosure of civil service commission records relating to a deputy sheriff’s administrative appeal of a disciplinary matter . . . .” The Copley court concluded that records of a disciplinary appeal qualified as personnel records and, furthermore, rejected that part of the New York Timesdecision which had held “that ‘[u]nder [Penal Code] sections 832.7 and 832.8, an individual’s name is not exempt from disclosure.’”
However, “[o]ne year later, the Supreme Court in POST, (Commission on Peace Officers Standards & Training (POST) v. Superior Court (2007)) 42 Cal.4th 278, held the CPRA required the disclosure of officer names, employing departments and hiring and termination dates . . . . Examining both the language and legislative history of Penal Code section 832.8, the Court found no basis to conclude that type of information constituted components of a peace officer’s personnel record.”
In reference to the POST decision, the Court of Appeal stated that “[f]urther, the Court declined to construe any of the categories of information identified in Penal Code section 832.8 to encompass officer identities, finding it “unlikely that the Legislature contemplated that the identification of an individual as a peace officer, unconnected to any of the information it defined as part of a personnel record, would be rendered confidential by section 832.8.”
The Court also referenced a published Opinion of the Attorney General (91 Ops.Cal.Atty.Gen. 11) which concluded “that, in response to a request made under the [CPRA] for the names of peace officers involved in a critical incident, such as one in which lethal force was used, a law enforcement agency must disclose those names unless, on the facts of the particular case, the public interest served by not disclosing the names clearly outweighs the public interest served by disclosing the names.” (Emphasis added.)
Finally, the Court stated that “[w]e share the view that relevant case law leads to the inexorable conclusion that the names of officers involved in officer-involved shootings over a five-year period must be disclosed under the CPRA, absent any particularized showing of the interests served by nondisclosure.”
The Court then analyzed each of the claimed exemptions, set forth by the City and LBPOA, and concluded that, absent particularized facts applying to a specific officer which create potential harm, “officer names are not rendered confidential by any of the statutory exemptions contained in the CPRA.”
HOW THIS AFFECTS YOUR AGENCY
There have now been a series of significant court decisions involving whether or not names of officers involved in critical incidents are subject to disclosure under the CPRA. Many of us who represent law enforcement have fought to protect the confidentiality of personnel records of peace officers and have been fairly successful.
For example, Jones & Mayer prepared and presented briefs in several of these decisions, including filing an amicus curiae brief in the case of POST v. Superior Court (L.A. Times), where the California Supreme Court limited the disclosure of information demanded by the L.A. Times, to just officers’ names, agencies, date of hire and date the officer left the agency. The CPRA demand had included information which the Court agreed was personal information (e.g. date of birth and reason for leaving an agency) and denied the demand for disclosure.
However, the courts have been fairly consistent in holding that names of officers involved in official acts was not confidential, especially uniformed officers. It is important to note, however, that all of the decisions recognize that withholding such names may be appropriate under specific circumstances. The Court of Appeal, in the instant case, stated that although “an officer could demonstrate that privacy interests predominate—for example, by showing a particularized threat to his or her safety—the trial court further concluded that appellants’ evidence of speculative and generalized threats was inadequate to outweigh the public interest in disclosure.” The public interest in the conduct of peace officers is substantial: “Peace officers ‘hold one of the most powerful positions in our society; our dependence on them is high and the potential for abuse of power is far from insignificant.’”
Furthermore in the New York Times decision, the court stated that “[w]e find no well-established social norm that recognizes a need to protect the identity of all peace officers. Peace officers operate in the public realm on a daily basis, and identify themselves to the members of the public with whom they deal. Indeed, uniformed peace officers are required to wear a badge or nameplate with the officer’s name or identification number.”
However, it was also recognized that “in certain circumstances protecting the anonymity of a peace officer may outweigh the public interest in disclosure.” But those “circumstances” must be justified based on specific facts. Whether or not your agency decides to disclose names of officers involved in critical incidents requires a review from a factual and legal basis. As such, it is imperative that you confer with your agency’s legal advisor to secure guidance before making that decision. As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714-446-1400) or via e-mail at mjm@jones-mayer.com.
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