In Wyatt v. Kern High Sch. Dist., 80 Cal. App. 5th 1116 (5th Dist. 2022), a California Court of Appeal concluded that a peace officer’s personnel records were not subject to disclosure under the 2018 amendments to Penal Code sections 832.7 & 832.8. In reaching its conclusion, the Court explained that the officer was never provided notice and an opportunity to challenge internal affairs findings by way of an administrative appeal.
Background
Kern High School District (“KHSD”) maintains a police department. Jerald Wyatt was previously employed by KHSD as a peace officer in the KHSD police department. While Wyatt was employed by KHSD, an internal affairs (“IA”) investigation was opened into certain allegations involving Wyatt. However, by the time the IA investigation was completed at the end of June 2017, KHSD no longer considered Wyatt an active KHSD employee.[1]
In November 2017, Wyatt requested to review his KHSD personnel records. While reviewing his records, he discovered a document described as an IA findings document that listed two sustained IA allegations, including one for “Dishonesty.” However, Wyatt would later argue that he was never informed nor notified of any such findings.
In early 2019, KHSD received several record requests pursuant to the California Public Records Act (Government Code, section 6250 et seq.) (“CPRA”) from various news agencies and others. The CPRA requests sought information concerning KHSD officer involved events including records pertaining to, among other things, sustained findings of dishonesty-related misconduct by an officer. In April 2019, KHSD notified Wyatt by letter that that it had received CPRA requests related to the investigation and discipline of peace officers employed by the KHSD police department “pursuant to [Senate Bill] 1421.” The letter stated that KHSD had identified documents from his personnel file responsive to the CPRA requests, and that KHSD would produce the documents unless Wyatt provided a court order precluding their production.
Prior to January 1, 2019, access to such records was only permitted through a Pitchess[2] motion. With the passage of Senate Bill No. 1421[3] in 2018 (“2018 amendments”), Penal Code sections 832.7 and 832.8 were amended to allow disclosure of such records pursuant to a CPRA request under specified circumstances.[4]
Wyatt petitioned the Kern County Superior Court for a writ of mandate, temporary restraining order, and preliminary injunction seeking to enjoin KHSD from disclosing the records, arguing in part that the records did not relate to “sustained” findings as defined in Penal Code section 832.8(b), because Wyatt was never notified of the findings or afforded an opportunity for an administrative appeal as required by statute. The trial court granted Wyatt’s petition, ordered the issuance of a writ of mandate, and issued an injunction prohibiting disclosure of the subject records. KHSD appealed.
Discussion
The Fifth District Court of Appeal explained that the issue here was whether the subject records related to “sustained” findings under the 2018 amendments to Penal Code sections 832.7 and 832.8, which would render the records subject to disclosure under the CPRA.
The Court observed that before the 2018 amendments effected by Senate Bill 1421, Penal Code section 832.7 prohibited disclosure of peace officer and custodial officer personnel records and certain other related records maintained by state and local agencies except when obtained through law and motion procedures identified in Evidence Code sections 1043 and 1046, i.e. a Pitchess motion. In 2018, the California Legislature passed Senate Bill 1421 to amend section 832.7. The 2018 amendments became effective January 1, 2019 and allowed disclosure of a specified subset of such records pursuant to a CPRA request. “[T]he legislative intent behind Senate Bill 1421 was to provide transparency regarding instances of an officer’s use of significant force and sustained findings of officer misconduct by allowing public access to officer-related records maintained either by law enforcement employers or by any state or local agency with independent law enforcement oversight authority.”[5] Senate Bill 1421’s Legislative history showed that in enacting the bill, the Legislature attempted to strike an appropriate balance between the competing considerations of peace officer privacy and public disclosure of peace officer misconduct.[6]
When the CPRA requests were made in 2019, the version of Penal Code section 832.7 in effect at that time provided in relevant part that peace officer personnel records “relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer” shall be made available for public inspection pursuant to the California Public Records Act. (See Section 832.7(b)(1)(C), Section 832.7(b)(1).) “‘Sustained’ means a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code, that the actions of the peace officer or custodial officer were found to violate law or departmental policy.” (Penal Code section 832.8(b), italics added.)
Government Code section 3304 provides: “No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required … without providing the public safety officer with an opportunity for administrative appeal.” (Section 3304(b).)
Reviewing the undisputed facts, the Fifth District observed that the findings made as part of the IA investigation were described in an IA findings document as “sustained findings,” yet KHSD never notified Wyatt that the IA findings had been made, and Wyatt was not provided an opportunity to be heard in order to challenge the findings. That is, Wyatt was not provided an opportunity for an administrative appeal pursuant to Government Code section 3304 or 3304.5. Approximately 18 months later, KHSD notified Wyatt of the CPRA requests. The CPRA requests sought documents which were newly made disclosable pursuant to the CPRA requests. KHSD notified Wyatt it had identified documents in his personnel files responsive to the CPRA requests and, unless he provided KHSD with a court order prohibiting disclosure, the documents so identified would be produced to the requesting parties. The subject records included the IA findings document and related documents.[7]
Wyatt contended the subject records including the IA findings document did not meet the definition of “record[s] relating to an incident in which a sustained finding was made,” as used in Penal Code section 832.7, because he was never given notice of the determination or an opportunity to be heard.
KHSD argued that an “administrative appeal pursuant to Sections 3304 and 3304.5,” as contemplated under Penal Code section 832.8(b), is only applicable when the law enforcement employer intends to seek discipline against an officer. Without an intent to impose discipline on an officer, KHSD maintained, a law enforcement employer is not required to provide that officer with notice of “sustained” findings and, absent such an intent, no right to an administrative appeal pursuant to Sections 3304 and 3304.5 arises. Because KHSD did not consider Wyatt actively employed by KHSD at the time the IA investigation was completed and the alleged “sustained” findings were made, KHSD argued it could not impose any punitive action or denial of promotion which would give Wyatt the right to an administrative appeal.
The Fifth District accepted KHSD’s contention that an administrative appeal under Government Code sections 3304 and 3304.5 is not available to a peace officer unless the employing agency intends to impose discipline on the officer or deny the officer promotional opportunities “on grounds other than merit.” (Government Code section 3304(d).) The Court also noted that case law had held that this administrative appeal procedure is not available to a peace officer who has voluntarily resigned[8] from his employment.[9] However, the Court stated that neither proposition resolved the question of whether the subject records were subject to disclosure under the 2018 amendments to Penal Code section 832.7.
The Court of Appeal concluded from the plain text of Penal Code sections 832.7 and 832.8, as amended by Senate Bill 1421, that protection of peace officer privacy in their personnel files and related records remained an important purpose of the legislation. The Fifth District stated that the California Supreme Court’s statement in the 2006 case Copley Press, Inc. v. Superior Court[10] stating that “competing policy considerations … may favor confidentiality, such as … protecting … peace officers from publication of frivolous or unwarranted charges, and maintaining confidence in law enforcement agencies by avoiding premature disclosure of groundless claims of police misconduct” remained a valid concern under Senate Bill 1421.[11]
Thus, the Court determined that these statutes continued to protect peace officer privacy interests except for certain records including those that relate to “sustained” findings involving certain types of officer misconduct. The Court deemed it “beyond dispute that the alleged ‘sustained’ findings contained in the IA findings document d[id] not fit precisely within the plain language of Senate Bill 1421 since Wyatt was never provided notice and an opportunity to challenge the findings by way of an administrative appeal.
The Fifth District explained that a plain-text reading of Penal Code section 832.8, as amended by Senate Bill 1421, revealed a Legislative intent to afford a peace officer certain due process rights (i.e., an opportunity for an administrative appeal pursuant to Government Code sections 3304 and 3304.5) before certain sustained findings and related documents may be released pursuant to a CPRA request. The Court noted, however, that due process rights may not be applicable to certain situations in which findings are made but no disciplinary action is contemplated. The Court stated that such circumstances raised questions about the implications of lack of notice and opportunity for administrative appeal that collaterally may impact an employee.
The Court explained that in its review of the Senate Bill 1421’s legislative history, there was nothing indicating the Legislature considered the situation where alleged “sustained” findings were made by a law enforcement employer following a peace officer’s separation of employment through resignation, constructive termination, or otherwise. The Court could not say the legislative purpose of Senate Bill 1421 was in any way violated by a construction that held that the subject records were not within the definition of “sustained” findings and related documents. The Court explained that had the Legislature considered such a situation, it was plausible the Legislature might have provided that such records should be subject to disclosure in response to a CPRA request. It was equally plausible, however, that the Legislature would have found policy considerations warranted continued protection of such documents to protect an officer’s privacy interests due to the lack of notice and an opportunity to appeal the findings—as argued by Wyatt. Moreover, the Legislature could have determined that the requirement of an appeal process was necessary to “maintain[] confidence in law enforcement agencies by avoiding premature disclosure of groundless claims of police misconduct.” (Copley Press, supra, 39 Cal.4th at p. 1298.)
The Court explained that for such circumstances not addressed by the Legislature in Senate Bill 1421, it was for the Legislature, not the courts, to make the relevant policy determinations necessary to achieve the appropriate balance between protecting a peace officer’s privacy interest while at the same time providing public disclosure of allegations or sustained findings related to officer conduct and misconduct. (Becerra, supra, 44 Cal.App.5th at p. 917; Copley Press, supra, 39 Cal.4th at p. 1299.) The Fifth District concluded that the subject IA records were not subject to disclosure under the 2018 amendments to Penal Code sections 832.7 and 832.8 and affirmed in part on this basis.
2021 Amendments
In 2021, the Legislature made additional amendments to Penal Code section 832.7.[12] Subdivision (b)(3) of Penal Code section 832.7 now provides, in relevant part: “Records that shall be released pursuant to this subdivision also include records relating to an incident specified in paragraph (1) in which the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.” (Penal Code section 832.7(b)(3).) The Fifth District explained that because it took no position on whether Wyatt resigned from the KHSD police department, was constructively terminated from said employment, or separated from his employment with KHSD under other circumstances, and because the CPRA requests here predated enactment of the 2021 amendments, the Court did not address whether a different result would obtain under current Penal Code section 832.7.
Given the change in the law, however, the Court determined that the judgment and writ issued by the trial court must be modified to limit the injunction to CPRA requests received prior to January 1, 2022, the effective date of the 2021 amendments. The Court expressed no opinion as to whether future CPRA requests, if any, might reach the subject records.
The Court stated that the trial court’s order and subsequent judgment granting Wyatt injunctive relief was affirmed, in part, and reversed, in part. The Court remanded the matter to the trial court for further proceedings consistent with this opinion. The Court declared that the peremptory writ should be recalled, and both the writ and the judgment should be modified to limit the injunction such that it would prohibit disclosure of the subject records only in response to those CPRA requests received by KHSD prior to January 1, 2022.
HOW THIS AFFECTS YOUR AGENCY
Agencies will observe that with the 2021 amendments to Section 832.7, an officer’s resignation prior to an agency’s conclusion of an incident investigation does not necessarily prevent the release of related records pursuant to CPRA requests. However, agencies should take note of the holding in Wyatt with respect to records generated during the relevant time period implicated by this case. Such records may not be subject to release under the PRA in the limited circumstances identified in this case. As such, it is critical that agencies consult their retained legal advisor when confronted with a PRA request in situations similar to those described in Wyatt.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] The Court here noted that Wyatt’s true employment status with KHSD at or about the time of the IA investigation was apparently disputed and the subject of separate litigation. The Court expressed no opinion on whether a separation of employment occurred due to constructive termination, resignation, or otherwise, as the Court deemed the issue immaterial to the questions to be resolved on appeal.
[2] Pitchess v. Superior Court, 11 Cal.3d 531 (1974).
[3] 2017–2018 Reg. Sess.
[4] Penal Code, former Section 832.7(b)(1); Stats. 2018, ch. 988, section 2.
[5] Becerra v. Superior Court, 44 Cal.App.5th 897, 921 (1st Dist. 2020).
[6] Sen. Com. on Pub. Safety, Analysis of Sen. Bill No. 1421 (2017–2018 Reg. Sess.) as amended Apr. 2, 2018, pp.8-9.
[7] The Court distinguished the instant case from Collondrez v. City of Rio Vista (1st Dist. 2021) 61 Cal.App.5th 1039 because the facts of Collondrez were materially different from those here. The officer in Collondrez initiated an appeal but withdrew it as part of a bargained-for settlement. The withdrawal of the appeal was a natural (and presumably necessary) consequence of the officer’s bargain with the City. Here, Wyatt was never provided notice of the “sustained” IA findings and never had an opportunity for an administrative appeal. See Client Alert Vol. 36 No. 6 for more on Collondrez.
[8] As noted in fn. 1, the parties disputed Wyatt’s employment status at the time of the IA investigation. KHSD apparently considered Wyatt to have voluntarily resigned.
[9] Haight v. City of San Diego, 228 Cal.App.3d 413, 417–418 (4th Dist. 1991).
[10] 39 Cal.4th 1272 (2006).
[11] Id. at p. 1298, fn. Omitted.
[12] Assem. Bill No. 474 (2021–2022 Reg. Sess.) Section 339; Sen. Bill No. 16 (2021–2022 Reg. Sess.) Section 3; Sen. Bill No. 2 (2021–2022 Reg. Sess.) Section 5.5.
