Chapter 4 - §6. Officer-records privilege

JurisdictionUnited States

§6. Officer-records privilege

§6.1. Overview. Personnel records of peace officers and custodial officers, as well as records of citizen complaints made against them, have broadly been considered confidential and not subject to disclosure in any proceeding unless a proper request for discovery or disclosure is made under Evid. C. §§1043 and 1046 and the evidence is material to pending litigation. Pen. C. §832.7. The purpose of the officer-records privilege is to ensure that the privacy interests of officers are protected. See City of Santa Cruz v. Municipal Ct. (1989) 49 Cal.3d 74, 83-84; Michael v. Gates (2d Dist.1995) 38 Cal.App.4th 737, 743. In 2018, the California Legislature made sweeping changes to these broad protections by making certain personnel records and records relating to specified incidents, complaints, and investigations open for public inspection under the California Public Records Act (CPRA) (Gov. C. §6250 et seq.). Stats. 2018, ch. 988; see Becerra v. Superior Ct. (1st Dist.2020) 44 Cal.App.5th 897, 915-16 (summarizing substantive content of legislation). As a result, many records that were once considered confidential are no longer, as of January 1, 2019. See Pen. C. §832.7(a), (b).

§6.2. Elements of officer-records privilege. The elements of the officer-records privilege are the following:

1. Protected officers. The privilege applies only to peace officers and custodial officers. Pen. C. §832.7(a). The personnel records of such officers do not stop being protected upon an officer's retirement or other leave or termination from employment. Abatti v. Superior Ct. (4th Dist.2003) 112 Cal.App.4th 39, 57; see Davis v. City of Sacramento (3d Dist.1994) 24 Cal.App.4th 393, 400.

(1) Peace officers. "Peace officers" are defined under Pen. C. §§830.1 to 830.65 and encompass a wide variety of law-enforcement personnel.

(2) Custodial officers. "Custodial officers" are generally individuals serving as state correctional officers or in other similar functions. See Pen. C. §831.5(a). Custodial officers are defined as "a public officer, not a peace officer, employed by a law enforcement agency of a city or county who has the authority and responsibility for maintaining custody of prisoners and performs tasks related to the operation of a local detention facility used for the detention of persons usually pending arraignment or upon court order either for their own safekeeping or for the specific purpose of serving a sentence in that facility" Pen. C. §831(a).

2. Protected records.

(1) What is protected. The privilege generally protects from disclosure personnel records and records of citizen complaints maintained under Pen. C. §832.5 and any information obtained from those records. Pen. C. §832.7(a); Pasadena Police Officers Ass'n v. Superior Ct. (2d Dist.2015) 240 Cal.App.4th 268, 285. If the information is contained in personnel or complaint records, the information does not lose its privileged nature simply because the same information could be found in another record or is within the officer's personal recollection. See Davis, 24 Cal.App.4th at 401 n.2; Hackett v. Superior Ct. (2d Dist.1993) 13 Cal.App.4th 96, 101; City of San Diego v. Superior Ct. (4th Dist.1981) 136 Cal.App.3d 236, 239.

(a) Personnel records. Personnel records are defined as any file maintained under the officer's name by his 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. Pen. C. §832.8(a)(1). Similar information has been interpreted to include an officer's Social Security number and birth date. Garden Grove Police Dept. v. Superior Ct. (4th Dist.2001) 89 Cal.App.4th 430, 434.

[2] Medical history. Pen. C. §832.8(a)(2).

[3] Election of employee benefits. Pen. C. §832.8(a)(3).

[4] Information about advancement, appraisal, or discipline as an employee. Pen. C. §832.8(a)(4).

[5] Complaints or investigations about an incident that the officer participated in or witnessed and that pertains to the officer's performance of her duties. Pen. C. §832.8(a)(5); Zanone v. City of Whittier (2d Dist.2008) 162 Cal.App.4th 174, 189.

[6] Other information that if disclosed would be an unwarranted invasion of personal privacy. Pen. C. §832.8(a)(6).

(b) Records of citizen complaints. Records of citizen complaints maintained by any state or local agency under Pen. C. §832.5 are defined as the records of any complaints lodged by members of the public against an officer and any reports or findings relating to those complaints. See Pen. C. §§832.5, 832.7(a).

(2) What is not protected.

(a) Nonpersonnel records. The California Supreme Court has held that personnel records are limited to the categories of information that are expressly enumerated in Pen. C. §832.8. Commission on Peace Officers Stds. & Training v. Superior Ct. (2007) 42 Cal.4th 278, 293. Based on this strict interpretation of Pen. C. §832.8, the following information has been determined not to be protected as a personnel record:

[1] Information that does not meet the definition of Pen. C. §832.8 but is found within an officer's personnel file. See Commission on Peace Officers Stds. & Training, 42 Cal.4th at 293.

[2] Personnel files maintained by someone other than the officer's employing agency as long as the information in the file was not "obtained from" personnel records maintained by the officer's employing agency. See id. at 289; Pasadena Police Officers, 240 Cal.App.4th at 288.

[3] The officer's name, including the name of an officer involved in a shooting, as long as providing the officer's name would not link him to personal or sensitive information that Pen. C. §832.8 seeks to protect. See Long Beach Police Officer's Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 72; Commission on Peace Officers Stds. & Training, 42 Cal.4th at 299.

[4] The officer's employing agency. Commission on Peace Officers Stds. & Training, 42 Cal.4th at 299.

[5] The officer's employment dates. Id.

[6] Initial incident reports. Long Beach Police Officer's Assn., 59 Cal.4th at 71-72 (distinguishing between investigatory records that may be considered for determining whether discipline should be administered—which are not protected as personnel files—from records that are generated in connection with appraisal or discipline—which are protected).

[7] The officer's official service photograph. Ibarra v. Superior Ct. (2d Dist.2013) 217 Cal.App.4th 695, 698.

[8] Arrest videos. City of Eureka v. Superior Ct. (1st Dist.2016) 1 Cal.App.5th 755, 763-64.

(b) Certain statements in or data about citizen complaints. The following statements in and data about citizen complaints are not protected:

[1] A citizen's own statements. See Pen. C. §832.7(c). When a complaining party files a complaint, the department or agency is required to release to the complaining party a copy of the party's own statements at the time the complaint is filed. Id.

[2] The number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against officers of a department or agency if that information is in a form that does not disclose the identities of the individuals involved. See id. §832.7(d).

(c) Records involving certain officer conduct. On or after January 1, 2019, records of certain officer conduct, as defined by Pen. C. §832.7(b), are no longer protected by the officer-records privilege. See Becerra v. Superior Ct. (1st Dist.2020) 44 Cal.App.5th 897, 915-16. Under Pen. C. §832.7(b), these records can be disclosed to any person making a proper request under the CPRA. In amending Pen. C. §832.7, the Legislature sought to afford the public the right to know all about serious police misconduct, to stop concealing incidents where an officer violated civilian rights, and to address and prevent abuses and weed out the bad actors. Becerra, 44 Cal.App.5th at 921. Although the legislation amending Pen. C. §832.7 demonstrates a concern for certain privacy and safety interests and competing public interests, the CPRA must be "broadly construed" because its statutory scheme "furthers the people's right of access." Id. at 913-14. And because the statute merely broadens the public's right to access records and does not attach new legal consequences to or increase a peace officer's liability for conduct that occurred before the statute's effective date, it applies retroactively. Ventura Cty. Deputy Sheriffs' Ass'n. v. Cty. of Ventura (2d Dist.2021) 61 Cal.App.5th 585, 594.

[1] Records subject to public inspection.

[a] Discharge of firearm. A record relating to the report, investigation, or findings of an incident involving an officer discharging a firearm at a person is subject to public inspection under the CPRA. Pen. C. §832.7(b)(1)(A)(i); Becerra, 44 Cal.App.5th at 918. These records may be temporarily withheld from disclosure in certain instances, including when an investigation into the shooting is ongoing or when criminal charges are filed against the officer. See Pen. C. §832.7(b)(8).

[b] Use of force. A record relating to the report, investigation, or findings of an incident involving an officer's use of force against a person resulting in death or great bodily injury is subject to public inspection under the CPRA. Pen. C. §832.7(b)(1)(A)(ii); Becerra, 44 Cal.App.5th at 918. Additionally, a record relating to the report or investigation of a sustained finding involving a complaint that alleges unreasonable or excessive force or that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive are subject to public inspection under the CPRA. Pen. C. §832.7(b)(1)(A)(iii), (iv). Records that are subject to disclosure under Pen. C. §832.7(b)(1)(A)(iii) or (iv) relating to an incident that occurred before January 1, 2022 are not subject to the time limitations prescribed under Pen. C. §832.7(b)(8) until January...

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