California Criminal Lawyer Blog

ANALYSIS : Existing law provides that any agency in
California that employs peace officers shall establish a
procedure to investigate complaints by members of the
public against the personnel of these agencies, and shall
make a written description of the procedure available to
the public.

Existing law provides that complaints and any reports or
findings relating to these complaints shall be retained for
a period of at least five years. All complaints retained
pursuant to this subdivision may be maintained either in
the officer's general personnel file or in a separate file
designated by the agency, as specified. However, prior to
any official determination regarding promotion, transfer,
or disciplinary action by an officer's employing agency,
the complaints determined to be frivolous shall be removed
from the officer's general personnel file and placed in
separate file designated by the department or agency, as
specified.

Existing law provides that complaints by members of the
public that are determined by the officer's employing
agency to be frivolous, as defined, or unfounded or
exonerated, or any portion of a complaint that is
determined to be frivolous, unfounded, or exonerated, shall
not be maintained in that officer's general personnel file.
However, these complaints shall be retained in other,
separate files that shall be deemed personnel records for
purposes of the California Public Records Act and Section
1043 of the Evidence Code (which governs discovery and
disclosure of police personnel records in legal
proceedings).

Existing law provides that peace or custodial officer
personnel records and records maintained by any state or
local agency pursuant to Section 832.5, or information
obtained from these records, are confidential and shall not
be disclosed in any criminal or civil proceeding except by
discovery pursuant to Sections 1043 and 1046 of the
Evidence Code. This section shall not apply to
investigations or proceedings concerning the conduct of
peace officers or custodial officers, or an agency or
department that employs those officers, conducted by a
grand jury, a district attorney's office, or the Attorney
General's office.

This bill expands the exception to confidentiality of peace
officer personnel records regarding investigations or
proceedings involving peace officer conduct to include such
investigations or proceedings when conducted by a civilian
review board, personnel board, police commission, or civil
service commission.

Existing law states that a department or agency shall
release to the complaining party a copy of his or her own
statements at the time the complaint is filed.

Existing law provides that a department or agency that
employs peace or custodial officers may disseminate data
regarding the number, type, or disposition of complaints
(sustained, not sustained, exonerated, or unfounded) made
against its officers if that information is in a form which
does not identify the individuals involved.

Existing law provides that a department or agency that
employs peace or custodial officers may release factual
information concerning a disciplinary investigation if the
officer who is the subject of the disciplinary
investigation, or the officer's agent or representative,
publicly makes a statement he or she knows to be false
concerning the investigation or the imposition of
disciplinary action. Information may not be disclosed by
the peace or custodial officer's employer unless the false
statement was published by an established medium of
communication, such as television, radio, or a newspaper.
Disclosure of factual information by the employing agency
pursuant to this subdivision is limited to facts contained
in the officer's personnel file concerning the disciplinary
investigation or imposition of disciplinary action that
specifically refute the false statements made public by the
peace or custodial officer or his or her agent or
representative.

Existing law provides that, as used in Section 832.7,
"personnel records" means any file maintained under that
individual's name by his or her employing agency and
containing records relating to any of the following:

1.Personal data, including marital status, family members,
educational and employment history, home addresses, or
similar information.

2.Medical history.

3.Election of employee benefits.

4.Employee advancement, appraisal, or discipline.

5.Complaints, or investigations of complaints, concerning
an event or transaction in which he or she participated,
or which he or she perceived, and pertaining to the
manner in which he or she performed his or her duties.

6.Any other information the disclosure of which would
constitute an unwarranted invasion of personal privacy.

Existing law states that the Legislature, mindful of the
right of individuals to privacy, finds and declares that
access to information concerning the conduct of the
people's business is a fundamental and necessary right of
every person in this state.

Existing law provides that public records are open to
inspection at all times during the office hours of the
state or local agency and every person has a right to
inspect any public record, except as hereafter provided.
Any reasonably segregable portion of a record shall be
available for inspection by any person requesting the
record after deletion of the portions that are exempted by
law.

Existing law provides that any public agency must justify
withholding any record by demonstrating that the record in
question is exempt under express provisions of this chapter
or that 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.

Existing law provides that records exempted or prohibited
from disclosure pursuant to federal or state law,
including, but not limited to, provisions of the Evidence
Code relating to privilege, are exempt from disclosure
under the California Public Records Act.

Existing case law provides that a public administrative
body responsible for hearing a peace officer's appeal of a
disciplinary matter is an "employing agency" relative to
that officer, and therefore exempt from disclosing certain
records of its proceedings in the matter under the
California Public Records Act.

This bill expressly abrogates the decision of the
California Supreme Court in Copley Press v. Superior Court ,
39 Cal.4th 1272 (2006).

This bill provides that any charter city may elect, as
specified, to follow the practices it followed before the
Copley Press decision with respect to the release of
limited information regarding certain personnel
investigations.

This bill permits departments or agencies employing peace
officers or custodial officers to release specified
information with respect to disciplinary matters, as
specified.

This bill permits, in cases in which a governmental body
outside the department or agency makes a finding adverse to
an officer, as specified, and the finding is overturned or
the recommendation is not followed by the department or
agency that employs the peace officer, the department or
agency, in its discretion, to release any information
already released by the outside body, as well as a summary
of the grounds for overturning the outside body's finding
or not following its recommendation.

This bill provides that information disclosable pursuant to
this section shall be made available pursuant to the Public
Records Act.

FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes

SUPPORT : (Verified 5/7/07)

Los Angeles Mayor, Antonio Villaraigosa
Los Angeles Police Chief William Bratton
Los Angeles City Councilmember Bernard Parks
Los Angeles City Councilmember Jan Perry
Asian Pacific American Legal Center of Southern California
American Civil Liberties Union
American Friends Service Committee
Board of Supervisors of the City and County of San
Francisco
Californians Aware
California First Amendment Coalition
California Newspaper Publishers Association
Central American Resource Center
Central California Criminal Justice Committee
City of Newark Chief of Police Ray Samuels
City of Oakland Citizens' Police Review Board
Coalition for Humane Immigrant Rights of Los Angeles
Community Call to Action & Accountability
Ella Baker Center for Human Rights
Families to Amend California's Three Strikes
Homeboy Industries
Hunger Action Los Angeles
Idriss Stelley Foundation
La Raza Centro Legal, Inc.
Lawyers Committee for Civil Rights
Los Amigos of Orange County
Los Angeles Coalition to End Hunger and Homelessness
Merrick Bobb, President & Founder, Police Assessment
Resource Center
Mexican American Legal Defense and Educational Fund
National Association for Civilian Oversight of Law
Enforcement
National Black Police Association, Inc.
National Korean American Service and Education Consortium
Paul Robeson Chapter of the American Civil Liberties Union
of Northern California
People United for a Better Oakland
Petra DeJesus, San Francisco Police Commissioner
Progressive Jewish Alliance
San Francisco City and County Sheriff, Michael Hennessey
San Francisco Village Voice Community Radio
Santa Clara Valley Chapter of the ACLU
Taxpayers Improving Public Safety
Transgender Law Center

OPPOSITION : (Verified 5/7/07)

Association for Los Angeles Deputy Sheriffs, Inc.
California Association of Highway Patrolmen
California Fraternal Order of Police
California Narcotic Officers' Association
California Peace Officers' Association
California Police Chiefs Association
California School Employees Association
California State Employees Association
California Statewide Law Enforcement Association
League of California Cities
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Orange County Employees Association
Organization of SMUD Employees
Peace Officers Research Association of California
Riverside Sheriffs' Association
Sacramento County Deputy Sheriffs Association
San Bernardino Public Employees Association
San Diego County Court Employees Association
San Luis Obispo County Employees Association
Santa Ana Police Officers Association
Santa Rosa City Employees Association
Southern California Alliance of Law Enforcement

ARGUMENTS IN SUPPORT : The American Civil Liberties Union
states, "While the police associations have framed the
provisions in Section 832.7 and 832.8 as important to
protect officer privacy, it is really about their efforts
to preserve unique secrecy provisions that exist only for
law enforcement and not for any other public employees. To
be clear, there is no privacy interest in sustained
misconduct by a public employee. Police officers work in
public, they interact with the public, they are paid with
public funds, and, occasionally, they receive complaints
from the public. When complaints are filed and found to be
true, the public should have a right to know as there is
for all other public employees. (Emphasis in original.)

"The importance of transparency and problem with secrecy is
best illustrated by the controversy over the shooting of 13
year old Devin Brown by an officer with the Los Angeles
Police Department. There, the Police Commission found the
shooting out of policy, but the Board of Rights for the
Police Department - previously open to the public but now
closed due to Copley Press - found the police action within
policy. The secrecy around the proceeding resulted in
community protest. Police Chief William Bratton wanted to
have a public process and release information, but was
prohibited from doing so as a result of Copley Press .
Chief Bratton has subsequently called for Copley Press to
be overturned, stating, 'I am in support of change ... I am
very frustrated by [the current process]. The public has
no access to it. The media has no access to it. That's
crazy, absolutely crazy. We have nothing to hide in the
Los Angeles Police Department.'"

ARGUMENTS IN OPPOSITION : The Riverside Sheriffs
Association states, In 1978, the California Legislature
enacted Penal Code Sections 832.7 and 832.8 and Evidence
Code Section 1043 through 1046 in response to the Court's
1974 decision in Pitchess v. Superior Court . The
Legislature designed these so-called ' Pitchess Statutes' to
limit 'fishing expeditions' into peace officers' personnel
files by criminal defendants and their defense attorney by
providing that peace officer personnel records 'maintained'
under the officer's name 'by his or her employing agency'
are all confidential cases and may be disclosed only after
a judge finds good cause for the disclosure and that the
requested records are material to the case before the
court." (Emphasis in original.)

RJG:cm 5/8/07 Senate Floor Analyses