NAMES OF UC DAVIS OFFICERS INVOLVED IN PEPPER SPRAY CASE ARE SUBJECT TO DISCLOSURE
On July 23, 2013, the First Appellate District of the California Court of Appeal held, in the case of The Federated University Police Officers’ Association v. Superior Court of Alameda County (LA Times Communications, et al.), that the names of the UC Davis police officers involved in the infamous pepper spray incident were not exempt from disclosure under the California Public Records Act (CPRA).
Facts
“On November 18, 2011, a UC Davis police officer, later identified as Lieutenant John Pike (Pike), was videotaped methodically pepper spraying a row of nonviolent, seated protestors at close range after they failed to obey orders to disperse. The pepper spray incident took place after the students and their supporters had gathered on the campus to protest rising college costs.”
Following the incident, “UC President Mark Yudof announced that he had hired former New York City Police Commissioner and Los Angeles Police Chief William J. Bratton and his consulting company, Kroll, “to provide the chancellor and the entire University of California community with an independent, unvarnished report about what happened at Davis.” Yudof also announced the appointment of former California Supreme Court Justice Cruz Reynoso to chair a task force (the Reynoso Task Force) to examine the pepper spray incident.”
[For full transparency, it should be noted that, in addition to the Kroll investigation, the UC Davis Police Department initiated an internal affairs investigation pursuant to state law. Martin J. Mayer, of the firm of JONES & MAYER, was retained by the Office of General Counsel to provide legal advice and guidance to the outside investigators conducting the IA investigation.]
The Reynoso Task Force reviewed the Kroll report and relied up the facts and conclusions set forth therein to issue findings regarding responsibility, and “to provide recommendations to UC Davis Chancellor Linda Katehi and President Yudof on improvements to police procedures, command protocols, and campus policies that would ‘help ensure the rights and safety of nonviolent protestors’ in the future.”
“In preparing its report, Kroll interviewed approximately 14 UC police officers about the pepper spray incident. The officers were ordered by the UC Davis acting chief of police ‘to appear for an interview with Kroll and to cooperate with their [sic] investigation . . . .’”
“Kroll did not interview police officers who were the target of any citizen complaints, or the subject of any internal affairs investigations with respect to their role in the pepper spray incident.” The Kroll report states that “the IA investigative team has not provided or shared any information with the Kroll team including a witness list” and, furthermore, “(t)he report of the Internal Affairs investigation will be confidential, pursuant to California law, while the Kroll report is intended to be public.”
The Reynoso Task Force Report found fault with nearly all involved in the pepper spray incident and “assigns responsibility to specific individuals, including police officers, for these failed decisions.”
On April 12, 2012, the Kroll and Reynoso reports were issued. “When issued, the names and ranks of all of the officers – both witness and subject officers – were redacted with the exception of two individuals whose identities were widely known, Pike . . . and then-UC Davis Police Chief Annette Spicuzza.”
FUPOA and Pike filed suit to prevent the release of the reports in their entirety claiming that it would be an “unlawful release of confidential peace officer personnel information as protected by section 832.7, subdivision (a).” Eventually, the University Regents agreed to settle the litigation by allowing “for the release of the reports as long as the names and ranks of the police officers were redacted, other than Pike and Spicuzza.” The agreement specifically stated it did not address disclosure under the CPRA.
The press ultimately filed CPRA demands for complete, unredacted, versions of the reports and petitioned for a writ of mandate to compel UC to disclose them. The superior court, following a hearing, concluded that “the names of officers were not made confidential by section 832.7, subdivision (a), because the names were not records relating to complaints or investigations of complaints concerning an individual officer’s performance of duties.”
The trial court stayed its order to allow FUPOA to petition for extraordinary writ relief and the Court of Appeal denied that petition but “granted a stay so that FUPOA could seek review of the matter by the California Supreme Court.” The Supreme Court granted review of the case and transferred it back to the Court of Appeal “with directions to vacate its order denying the petition for writ of mandate and to issue an order directing respondent superior court to show cause why the relief sought in the petition should not be granted.”
The Supreme Court also stayed the trial court’s June 26, 2012 order directing the Regents to disclose the unredacted reports, including the names of police officers identified in the reports, pending further order of the Court of Appeal.
The CPRA
The Court of Appeal first focused on the purpose behind the CPRA, stating that the CPRA is based on the principle that “access to information concerning the conduct of the public’s business is a fundamental and necessary right of every person in this state.” (Gov. Code, § 6250.)
“As the California Supreme Court has explained: ‘Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.’ To achieve these goals, the Supreme Court has declared that ‘[m]aximum disclosure of the conduct of governmental operations’ is necessary.”
But the Court recognized the exceptions set forth in the law and stated that “the right to obtain public records is not absolute, and in adopting the CPRA, the Legislature also declared it was ‘mindful of the right of individuals to privacy.’ (Gov.Code § 6250.) Accordingly, the Legislature enacted a number of exceptions that are designed to protect an individual’s privacy rights.”
The Court noted that “the information requested by the newspapers must be disclosed unless the proponent of nondisclosure, in this case FUPOA, meets its burden of showing that one of the exemptions to the CPRA applies.”
Furthermore, the Court stated that “exemptions from the general rule of disclosure are construed narrowly.” As such, “(t)his well-settled rule of construction serves as the predicate for this court’s determination of whether the statutory exemption for peace officer personnel records codified in section 832.7, subdivision (a), can be interpreted as exempting the names of officers interviewed and referred to in the reports.”
Confidentiality of Police Personnel Records
The Court of Appeal focused its attention on the various laws which create confidentiality regarding certain documents involving law enforcement officers. “California law governing the protection of police personnel records is found in a series of statutes enacted in 1978, specifically sections 832.7 and 832.8, and Evidence Code sections 1043 through 1045.” The Court discusses confidentiality of citizen complaints, internal affairs investigations, and the list of police personnel records set forth in the statute, as well as the “Pitchess” process which is needed to access such confidential information.
But the Court concludes that “(o)ur Supreme Court has held that a police officer’s identity and conduct while on the job are not private, intimate, personal details of the officer’s life. Rather, they are matters with which the public has a right to concern itself.”
As such, states the Court, “it is clear that the names of officers interviewed or involved in the pepper spray incident are not within the classes of information designated “[p]ersonal data” protected from disclosure by section 832.8, subdivision (a). Indeed, police officers release their names to the public every day when they put on their uniforms, which are required to have name tags (see § 830.10) unless anonymity is required, such as officers who are working undercover. They routinely identify themselves when they go about their official duties – such as signing the tickets and citations they issue, writing police reports, and stating their names when they testify in open court.”
“FUPOA relies on section 832.8, subdivision (e), which states that information is an exempted personnel record if it consists of ‘[c]omplaints, or investigations of complaints, concerning an event or transaction in which [an officer] participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.’ Furthermore, because the reports examine certain officers’ conduct during the pepper spray incident and draw conclusions about the propriety of this conduct, FUPOA claims that this case involves information about ‘[e]mployee . . . appraisal, or discipline” bringing it within the category of exempted information provided by section 832.8, subdivisions (d).’”
The Court rejected those arguments by stating, in part, that “(d)isclosing the names of the officers who gave their own eyewitness accounts of the pepper spray incident does not fit within section 832.8, subdivision (e)’s prohibition against disclosing information regarding, “[c]omplaints or investigations of complaints,” nor do these third party accounts pertain “to the manner in which he or she performed his or her duties.” (Italics in original.)
The Court concluded that “Section 832.7, subdivision (a) – the sole exemption relied upon by FUPOA – defines two categories of information protected from disclosure under CPRA. They are: (1) records relating to a mandated investigation of citizens’ complaints as defined in section 832.5, and (2) police personnel records, as defined in section 832.8, subdivisions (a) through (f). Giving these categories of information the requisite narrow construction the law requires, we conclude that FUPOA has failed to meet its burden of proving that the information the newspapers seeks is exempt from disclosure.”
HOW THIS AFFECTS YOUR AGENCY
It appears that this case, absent contrary actions by the Supreme Court, will allow disclosure of names of officers involved in an incident, when the investigation is one intended to be an overview of the incident, as opposed to an internal affairs investigation of an individual officer’s actions, even though it appraises the actions of individual officers involved.
The Court focuses on the fact that the reports “disclosure of the officers’ names [did not] reveal any information about the “advancement, appraisal, or discipline” of any particular officer, as described in section 832.8, subdivision (d).” (Emphasis added.)
However, the report does, in fact, reveal information appraising the performance of each of the officers involved.
The Court states that “the Reynoso report assigns responsibility to nearly everyone involved in the pepper spray incident, from the UC Davis campus administration to the police officers who were on duty that day. After considering various decision points occurring during the incident, the Reynoso report describes how and why those decisions were made by specific individuals. The report then assigns responsibility to specific individuals, including police officers, for these failed decisions.” (Emphasis added.)
FUPOA has been granted time to decide whether or not to appeal this decision to the California Supreme Court. Its attorney is quoted in a news article as stating the union “will consider its options” in deciding whether to appeal the case. If it does not, this case appears to further broaden the scope of information which will be subject to disclosure under the CPRA.
As in all matters involving the law, we urge that you confer with your agency’s legal counsel and seek advice and guidance when applying court decisions. As always, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via email atmjm@jones-mayer.com.
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