The California Supreme Court recently delivered two blows to the once seemingly impenetrable cloak of confidentiality protecting peace officer personnel information from public disclosure.  In two separate decisions, the Supreme Court held that Penal Code section 832.7, which provides that “peace officer personnel records” are confidential, did not prevent disclosure of certain personnel information in response to California Public Records Act[1] (“CPRA”) requests by the news media.            

In Commission on Peace Officer Standards and Training v. Superior Court (Los Angeles Times Comm., L.L.C.)[2] (“Los Angeles Times”) the Supreme Court ruled that information in a State database containing officers’ names, employing departments, and hiring and termination dates is subject to disclosure under the CPRA.  Also, in International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (Contra Costa Newspapers, Inc.)[3] (“Contra Costa Newspapers”) the Supreme Court ruled that names and salaries of public employees earning $100,000 or more per year with overtime, including peace officers, are subject to disclosure and not protected under the CPRA.[4]  The two cases do not merely have academic value, but may significantly impact how law enforcement agencies respond to media requests for information, including disclosures made following critical incidents such as officer-involved shootings.

The Statutes

            The Legislature enacted the CPRA in 1968 proclaiming that: “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”[5]  Under the CPRA, the public is entitled to inspect public records unless the requested records are specifically excluded from inspection.[6]  Exempt records include those that are otherwise protected by federal or state law[7] as well as “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”[8] 

            Penal Code section 832.7, passed in 1978, provides that “peace officer personnel records . . . or information obtained from these records” are confidential.   Penal Code section 832.8 defines a “peace officer personnel record” as “any file maintained under that individual’s name by his or her employing agency and containing records relating to . . .” personal data; medical history; election of employee benefits; employee advancement, appraisal, or discipline; complaints; or “[a]ny other information the disclosure of which would constitute an unwarranted invasion of personal privacy.”[9]

            The overriding issue in Los Angeles Times and Contra Costa Newspapers was whether Penal Code sections 832.7 and 832.8 protected basic information about peace officers from disclosure under the CPRA. 

The Los Angeles Times Decision

In Los Angeles Times, a reporter requested that the California Commission on Peace Officer Standards and Training (“POST”) release information in its database regarding all new peace officer appointments from 1991 to 2001.  Specifically, the reporter requested officers’ names, employing departments, appointment dates, and termination dates.[10]  The Times reporter intended to study the movement of peace officers between various departments to detect any meaningful trends.[11]  The Times reporter was interested, for example, in understanding whether and why peace officers may be hired by one agency after being fired by another agency.[12] 

POST denied the records request claiming that Penal Code section 832.7 protects from disclosure all peace officer personnel records.[13]   The Times then filed a petition for writ of mandate in the Superior Court.  The Superior Court ordered POST to release to the names, appointing agencies, dates of appointment, and termination dates of each officer.[14]  POST appealed and the Court of Appeal directed the Superior Court to enter a new judgment denying the Times’ request in its entirety.[15]  The Supreme Court granted review.

The Supreme Court concluded that the Legislature did not intend information to be treated as confidential solely on the basis that the information could be found in a “personnel file,”[16] even one protected under Penal Code sections 832.7 and 832.8.[17]  In other words, the location where information is stored is not the controlling factor in deciding whether it is confidential.  The Supreme Court indicated that such an interpretation of Penal Code section 832.7 would lead to absurd results, such as rendering confidential a newspaper article praising or criticizing an officer simply because the newspaper article was placed into the officer’s personnel file.[18]  The Supreme Court discerned no intent by the Legislature to make confidential either the identities of peace officers or basic employment facts.[19]  Rather, the Supreme Court concluded that confidentiality only extends to the specific records enumerated in Section 832.8.[20]  Thus, the Supreme Court then proceeded to analyze whether the types of information sought by the Los Angeles Times reporter were the types of information enumerated in Penal Code section 832.8.

POST contended that peace officers’ names, employing agencies, and hiring and termination dates do constitute personnel records because they constitute “employment history ... or similar information.”[21]  However, the Supreme Court held that the protection for “employment history” information under Penal Code section 832.8(a) only extends to information concerning an officer’s previous employment.[22]  Because POST records are obtained from the employing department regarding an officer’s current status, information in POST’s possession was not protected as “employment history” because the information was current at the time it was collected.

Next, the Supreme Court discussed whether officers’ names should be considered “personal data” under Penal Code section 832.8(a).  The Court referred to the definition of the word “personal” finding that the term carries a connotation of privacy.  Noting that officers routinely identify themselves when they make arrests, sign police reports, and wear badges or nameplates with names or identification numbers, the Court concluded that officers’ names were not “private” and as such were not “personal data” under the statute.  Thus, in finding that names are not protected as “personal data” and that employing departments and appointment and termination dates do not constitute “employment history,” the Court found that the information requested by the Los Angeles Times reporter was not privileged pursuant to Penal Code section 832.7 as “peace officer personnel record” information.  In rationalizing its statutory construction, the majority noted that the Court “may assume that in defining personnel records the Legislature drew the line carefully, with due concern for the competing interests.  Had the Legislature intended to prevent the disclosure of officers’ identities as such, an obvious solution would have been to list ‘name’ as an item of ‘[p]ersonal data…’”[23]

            Having concluded that the Penal Code does not protect the information sought by the Los Angeles Times reporter, the Court then addressed the question whether the CPRA’s provision preventing disclosure of “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy”[24] applied to the information sought.  The Court noted that this exception to the policy favoring disclosure of public records requires a court conduct a balancing test of the competing interests of peace officers on the one hand and the public on the other.

            The Court began its analysis from the assumption that: “[t]he public’s interest in the qualifications and conduct of peace officers is substantial…”[25]  The Court then turned the specific request for information itself, noting that the request by the Los Angeles Times was legitimate, in that the information was sought to determine such important information as whether inappropriate employment practices were occurring and whether officers who are dismissed from one or more agencies are nonetheless hired by another.[26]

            Not surprisingly, the Court found that information about where a peace officer has served is not likely to cause unwarranted embarrassment or indignity to the officer.  Describing the information being sought as “innocuous information,”[27] the Court focused on whether POST could show that releasing the information would constitute an unwarranted invasion of personal privacy.  POST argued that releasing such information causes “potential for mischief,”[28] may cause a safety hazard to the involved officers, and may be used to harass officers.[29]  Rejecting these arguments as “purely speculative,”[30] the Court ruled that the privacy and safety interests of peace officers do not outweigh the public’s interest in the disclosure of the information.[31]

            Importantly, the Court noted that there may be certain officers, such as those who work in undercover assignments, who have a heightened need to keep information from being disclosed.[32]  As such, the Court remanded the case for further proceedings in the Superior Court to determine whether the information sought by the Los Angeles Times would threaten to reveal the identities of officers who have a strong interest in maintaining anonymity and whose information should therefore not be subject to disclosure under the CPRA.[33]

The Contra Costa Newspapers Decision

In Contra Costa Newspapers, reporters from Contra Costa Newspapers requested the City of Oakland to provide the names, job titles, and gross salaries of all City employees who earned $100,000 or more in the fiscal year 2003-2004, including those employees who earned a base salary of less than $100,000 but who grossed $100,000 or more due to overtime income.[34]  Although the City of Oakland previously released such information from 1996 through 2003 and despite the fact that such information was previously published in a local newspaper, the City of Oakland refused to provide the requested information to the Contra Costa Newspapers reporters claiming that recent case law, increased concerns of financial privacy, and opposition to the release by two unions representing city employees led to a change in policy.[35]

Contra Costa Newspapers sought judicial enforcement of its request.  At the Superior Court, two employee unions intervened in the case, the Oakland Police Officers Association (“Association”) and the International Federation of Professional and Technical Engineers, Local 21 (“Local 21”).  Following a hearing on the matter, the Superior Court found that the unions and City failed to show that any privacy interest was violated in disclosure of salary information and that even if such a privacy right existed, it would nevertheless be outweighed by the public policy supporting disclosure and therefore ordered the City to disclose the requested salary information.[36]  The Superior Court also rejected the Association’s argument that Penal Code sections 832.7 and 832.8, making certain peace officer records confidential and not subject to disclosure, did not operate to render the names and salary of peace officers confidential.  Local 21 and the Association sought review by the Court of Appeal.  The Court of Appeal ruled in favor of the newspaper and the Supreme Court granted review. 

As in Los Angeles Times, the question before the Supreme Court in Contra Costa Newspapers was whether the requested information was protected pursuant to an exception under the CPRA or other state or federal law.  Noting the same public policies favoring disclosure that it had discussed in its Los Angeles Times decision, the Supreme Court concluded that on balance, disclosure of salary information of government employees generally would not constitute an unwarranted invasion of personal privacy.[37]

            The Court found that information should only be considered private “when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.”[38]  Although the Court acknowledged that disclosure of an individual’s salary may cause discomfort or embarrassment, the strong public policy supporting transparency outweighed any privacy expectation a government employee may have in salary information.[39]  The Court further noted that since 1955, the Attorney General has opined that the name and salary of public employees are matters of public record.[40]

            The Supreme Court then proceeded to analyze whether Penal Code sections 832.7 and 832.8 provide any special protections to peace officers’ names and salary information.  The Court addressed the question of whether privileged “personal data” as stated in Penal Code section 832.8 includes names and salary information of peace officers.  Finding that a public employee’s salary relates to a public interest and not primarily to a private individual matter of the involved employee, the Court concluded that the Legislature did not intend the words “personal data” to be read so broadly as to encompass all potential information relating to a peace officer, including name and salary.[41]

            The Court theorized that if the Legislature wanted peace officer salary information to be confidential, the Legislature could have added the word “salary” to the statute, noting that “ordinarily, the enumeration of one item in a statute implies that the Legislature intended to exclude others.”[42]  Therefore, the Court explained that its holding that that all public employee names and salary information of employees earning $100,000 per year or more with overtime is subject to disclosure applies equally to peace officers.  The Court stated: “we reject the notion that peace officers in general have a greater privacy interest in the amount of their salaries than that possessed by other public employees…”[43]

What is the Current Status of Peace Officer Personnel Information?

            Following Los Angeles Times and Contra Costa Newspapers, the names, employing departments, and employment dates of peace officers are all subject to disclosure.  Moreover, salary information for peace officers earning $100,000 or more per year with overtime is also a matter of public record.[44]  However, law enforcement agencies nevertheless must engage in a case-by-case analysis of each CPRA request that is received to determine whether releasing information is appropriate.

            The first issue is whether the information sought is the type of information that is specifically protected by a statute such as Penal Code sections 832.7 and 832.8.  If the information is specifically protected by a statute, then it is protected from disclosure under the CPRA.  If there is no specific statutory provision protecting the information, then the issue becomes whether the information requested is otherwise protected from disclosure because its disclosure would result in an unwarranted invasion of privacy.[45]  Moreover, under the CPRA, information may be withheld where “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”[46]   

Indeed, it is crucial to note that even if information would normally be subject to disclosure under Los Angeles Times and Contra Costa Newspapers, there are at least two very important circumstances wherein disclosure would not necessarily be warranted.  Both of these circumstances were addressed by the Supreme Court in Los Angeles Times and are outlined below. 

First, information may be withheld by a law enforcement agency if releasing that information would jeopardize the safety of the peace officer or his or her family or if releasing the information would negatively impact the officer’s ability to perform his or her duties effectively.  This scenario may arise in the context of undercover operations where an officer’s anonymity is critical to the officer’s safety.  The Supreme Court specifically noted:

"If the duties of a particular officer, such as one who is operating undercover, demand anonymity, the need to protect the officer’s safety and effectiveness certainly would justify the Commission in withholding information identifying him or her under Government Code section 6255, subdivision (a), which permits records to be withheld if “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.”[47]

For example, if a law enforcement agency can demonstrate that disclosure of the peace officer’s name would jeopardize the safety of the officer and/or his or her family, or if the disclosure would render ineffective the officer’s ability to perform his or her duties such as in an undercover capacity, the name of the peace officer may be withheld under the CPRA.

Second, the identities of peace officers subject to complaints remain confidential pursuant to Copley Press, Inc. v. Superior Court[48] and may not be disclosed.[49]  Likewise, the names of officers subject to investigation and discipline are confidential.

Interestingly, in Los Angeles Times, the Court noted that in its 2006 decision in Copley Press, it had expressed disapproval of the 1997 finding by the Court of Appeal in New York Times Co. v. Superior Court[50] that: “‘[u]nder Penal Code section 832.7 and 832.8, an individual’s name is not exempt from disclosure.’”[51]  The criticism of the New York Times decision, holding that a newspaper could learn the names of officers involved in a shooting, had led some to conclude that the names of officers were never subject to disclosure under any circumstances.  However, in Los Angeles Times, the Supreme Court explained that its earlier-expressed disagreement with the New York Times case was strictly limited insofar as the New York Times case, holding that an officer’s name is not confidential, might be read to suggest that officers’ names could be discovered in connection with disciplinary matters.  It appears that the Supreme Court has now taken the position in Los Angeles Times that an officer’s identity is only confidential in connection with complaints, investigations, and discipline involving the officer.

This clarification by the Supreme Court is likely to reignite the debate about the right of the news media to learn the names of officers involved in critical incidents such as officer-involved shootings.  While some experts interpreted the Supreme Court’s criticism in Copley Press of the New York Times case to mean that agencies could refuse to disclose the names of officers involved in critical incidents, it now appears that officers’ names are likely subject to disclosure unless disclosure would pose a serious threat to officer safety, a decision to be made on a case-by-case basis.  The California Attorney General is expected to issue an opinion on this very important issue in the near future. 

Conclusion

            Following the Supreme Court’s decisions in Los Angeles Times and Contra Costa Newspapers, law enforcement agencies can expect to receive more CPRA requests seeking information about peace officers.  Requests for salary information and employment-related information are especially likely to increase.  Law enforcement agencies are precariously situated, being forced to act as guardians of information peace officers wish to keep private while still complying with the public’s right to disclosure of certain information.  Given this vital position that law enforcement agencies and managers occupy, it is incumbent upon agencies and managers to understand the requirements as well as the limitations of the high court’s decisions in Los Angeles Times and Contra Costa Newspapers as well as other case law impacting peace officer information so as to avoid claims by peace officers that too much information is being released and so as to avoid claims by the public that its right to inspect public records is not being infringed.