ATTORNEY GENERAL OPINION: 07-208, (April 27, 2007)

Marc Nolan
Deputy Attorney General         
300 S. Spring Street
Los Angeles, CA 90013
                                   
RE:       Opinion No. 07-208

Dear Deputy Attorney General Nolan:

            Thank you for seeking input from the California State Sheriffs Association ("CSSA") and the California Chiefs Association ("CPCA") regarding the captioned matter. As you know, these organizations represent, virtually, all of the Police Chiefs and Sheriffs in the State of California. As such, the issues presented for consideration by the Attorney General are of major importance to these associations and, as counsel to the Associations, I have been asked to respond to your request.

Issue
In response to a Public Records Act (Gov. Code, §§ 6250-6276.48)       request, must a law enforcement agency disclose the names of officers involved in a critical incident, such as the use of lethal force, in the course and scope of their duties as police officers?

Summary of Conclusions

            We conclude the disclosure of the names of officers may or may not be released depending upon the particular circumstances of each case.

             If the names are released from the police officer’s personnel file Penal Code section 832.7 will prevent the disclosure of such names.  If an exemption from the Public Records Act does not apply, the names of police officers will be considered public records and thus, a law enforcement agency would be required to disclosure.

Analysis

Penal Code §832.7 states, in pertinent part, the following:

“(a) Peace officer personnel records and records maintained by any state or local     agency or information obtained from these records, are confidential and shall                not be disclosed in any criminal or civil proceeding except by discovery pursuant            to Section 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of police officers or a police  agency conducted by a grand jury, a district attorney’s office, or the Attorney       General’s office.”

            The statute applies to two categories of records. The first is “personnel records” (Section 832.7(a)) which section 832.8 defines as “any file maintained under [an officer’s] name by his or her employing agency and containing records relating to “among other things, “personal data”. The second category of records to which 832.7 (a) applies is “records maintained by any state or local agency pursuant to section 832.5".

            In the case of Copley Press v. Superior Court of San Diego County (2006) 39 Cal.4th 1272, 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 §§832.7 and 832.8 create confidentiality of personnel records, and information contained therein, which are maintained by any state or local agency.

            However, Penal Code §832.7' s “confidentiality provision has a fundamental limitation [under Penal Code §832.8]: it applies only to files maintained by the employing agency of the peace officer,” i.e., “written material maintained in the peace officer’s personnel file or oral testimony that is a recitation from material in that file.”  Thus, it “does not apply to information about a peace officer, the source of which is other than the employing agency’s file maintained under the individual’s name, even if that information is duplicated in that file.”

            The California Supreme Court has recognized that a public agency may not shield a record from public disclosure merely by placing it into a file labeled “ investigatory” (Williams v. Superior Court (1993) 5 Cal.4th 337,355. The labels of “personnel records” and “internal investigation” are captivatingly expansive, and present an elasticity menacing to the principle of public scrutiny of government. A public servant may not avoid such scrutiny by placing into a personnel file what would otherwise be unrestricted information. A conclusion to the contrary would weaken and bespoil the Public Records Act.

            Thus, Penal Code §832.7 will apply only if the information to be disclosed comes from the peace officer’s personnel file. Insofar as the information to be disclosed “are not documents from a personnel file or recited from documents in a personnel file,” they are outside the definitional limitations applicable to Penal Code §832.7 and a CPRA request for those records may not be denied.

            The California Public Records Act was enacted  “for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies.”

            However, the right of access to public records under the CPRA is not absolute. The Act states a number of exemptions that permit government agencies to refuse to disclose certain public records (Gov. Code §§ 6254-6255). Pertinent here are exemptions of  “personnel... files, the disclosure of which would constitute an unwarranted invasion of personal privacy” (Section 6254(c)); “records of complaints to, or investigations conducted by, ... any state or local police agency...” (Section 6254 (f)); and “Records the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to provisions of the Evidence Code relating to privilege.” (Section 6254 (k)).

            Because exceptions to the general rule of disclosure are construed narrowly, the burden is upon the public agency to show that the record should not be disclosed. (Rogers v. Superior Court,19 Cal. App.4th 469, 476. The Officer’s personnel file is protected there and specifically state law Penal Code section 832.7.

            Thus, if an exemption of the CPRA does not apply, the names of the police officers should be disclosed.

            However, it must also be discussed whether such disclosure would create vulnerability on the police officer. Here, what is sought is simply the names of police officers who are involved in a critical incident. When officers are engaged in the performance of their duties, and in uniform, officers are statutorily mandated to wear identification. (Penal Code §830.10) thus, no vulnerability would be created in a police officer since he would be required to wear a name plate in the first place.

Conclusions

            Based upon the foregoing we must conclude that the disclosure of the names of officers may or may not be released depending upon the particular circumstances of each case.  If the names are released from the police officer’s personnel file Penal Code §832.7 will apply preventing the disclosure of such name.

            If an exemption from the Public Records Act does not apply, the names of police officers will be considered public records and thus, a law enforcement agency would be required to disclosure.
            The California State Sheriffs’ Association and the California Police Chiefs Association  appreciates the opportunity to be heard on this issue. We sincerely hope these comments assist you in arriving at an opinion. If you have any questions, or if we can be of any further assistance, please do not hesitate to call.

                                                                                    Very truly yours,
                                                                                    Martin J. Mayer