Chapter 4 - §7. Official-information privilege

• Jurisdiction: United States

§7. Official-information privilege

§7.1. Overview. A public entity has a privilege to refuse to disclose and to prevent another from disclosing official information if the privilege is claimed by an authorized person and disclosure is prohibited by state or federal statute or is against the public interest. Evid. C. §1040. This privilege serves to encourage full disclosure between various private persons and regulatory governmental agencies and to protect necessary confidential disclosures between governmental officials. 2 Witkin, California Evidence (5th ed.), Witnesses §253. The official-information privilege is a public entity's only means for asserting a claim of governmental privilege based on the need for secrecy. Shepherd v. Superior Ct. (1976) 17 Cal.3d 107, 123, overruled on other grounds, People v. Holloway (2004) 33 Cal.4th 96; Wood v. Superior Ct. (4th Dist.2020) 46 Cal.App.5th 562, 584; Commission on Judicial Performance v. Superior Ct. (2d Dist.2007) 156 Cal.App.4th 617, 623; Marylander v. Superior Ct. (2d Dist.2000) 81 Cal.App.4th 1119, 1125.

Note
Although the official-information privilege is at times asserted along with the informant privilege, the two are separate and distinct. See Evid. C. §§1040, 1041. The official-information privilege codified under Evid. C. §1040 does not extend to the identity of an informant. See 7 Cal. Law Revision Comm'n Rep. (1965) p. 1198. For a discussion of the informant privilege, see "Informant privilege," ch. 4-C, §8.

§7.2. Elements of official-information privilege. For the official-information privilege to apply, the information sought must (1) be held by a public entity and (2) qualify as official information.

1. Public entity. The information sought must be held by a public entity. See Evid. C. §1040(b). A public entity includes a nation, state, county, city and county, city, district, public authority, public agency, or any other political subdivision or public corporation. Evid. C. §200.

2. Official information. The information sought must qualify as "official information." See Evid. C. §1040(b). Official information is information acquired by a public employee both in confidence and in the course of the employee's duty and kept confidential.

(1) Public employee. Official information must be acquired by a public employee. Evid. C. §1040(a). A public employee is an officer, agent, or employee of a public entity. Evid. C. §195; see, e.g., People v. Roberts (1992) 2 Cal.4th 271, 302 (tattoo specialist was agent and thus public employee when hired by state to remove D's tattoo).

(2) Acquired in confidence. Official information must be acquired in confidence. Evid. C. §1040(a); Roberts, 2 Cal.4th at 302; see Shepherd v. Superior Ct. (1976) 17 Cal.3d 107, 124, overruled on other grounds, People v. Holloway (2004) 33 Cal.4th 96; DMV v. Superior Ct. (2d Dist.2002) 100 Cal.App.4th 363, 373-74; County of Orange v. Superior Ct. (4th Dist.2000) 79 Cal.App.4th 759, 763. Information may be acquired through an employee's own discovery, or it may be given to the employee by another party. E.g., Hines v. Superior Ct. (1st Dist.1988) 203 Cal.App.3d 1231, 1234 (law-enforcement surveillance location was confidential; acquiring information includes information generated by person claiming privilege). Even information not acquired in confidence may be considered confidential if it is confidential by its nature. See, e.g., DMV, 100 Cal.App.4th at 373 (medical information accumulated by DMV through administrative proceedings suspending and revoking driving privileges was intrinsically confidential); County of Orange, 79 Cal.App.4th at 764 (police file in ongoing criminal investigation was confidential by its nature; while pieces of information contained in file may not have been acquired in confidence, "it does not follow that the information obtained is public").

Note
The official-information privilege applies to information obtained in the course of a governmental investigation and, because prosecutors do not technically have a "client," confidentiality regarding the fruits of a public prosecutor's investigations is governed exclusively under Evid. C. §1040. Wood v. Superior Ct. (4th Dist.2020) 46 Cal.App.5th 562, 584-85.

(3) Acquired in course of official duty. Official information must be acquired in the course of a public employee's official duties. Evid. C. §1040(a); see Ibarra v. Superior Ct. (2d Dist.2013) 217 Cal.App.4th 695, 705. This includes all evidence gathered in ongoing criminal investigations. In re Edgerrin J. (4th Dist.2020) 57 Cal.App.5th 752, 767 n.8; County of Orange, 79 Cal.App.4th at 764.

(4) Not disclosed. Official information must not have been open or officially disclosed to the public before the claim of privilege is made. Evid. C. §1040(a); see, e.g., Roberts, 2 Cal.4th at 302 (court erred when it excluded discovery of official information that was already known by D). Disclosure to another public agency with an official interest in the information is not considered disclosure to the public. Michael P. v. Superior Ct. (4th Dist.2001) 92 Cal.App.4th 1036, 1048. Similarly, the fact that some elements of the information might have been accessible...