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A Pitchess Motion Is Required Before An Agency Can Disclose Its Own Peace Officer’s Personnel Records
In 1997, the County of Ventura’s (County) Office of the District Attorney (VCDA) hired Tracy Towner to serve as an investigator. In 2014, Towner was promoted to investigative commander. In 2017, Towner testified in an action regarding another VCDA investigator before the County’s Civil Service Commission (Commission). The Commission found his testimony credible. Thereafter, the VCDA opened an independent investigation into Towner’s testimony at the Commission hearing, which determined that Towner had testified falsely at the hearing. As a result, the VCDA terminated Towner. Towner appealed his termination and requested a hearing before the Commission.
The County filed a petition for writ of mandate, requesting that the court enjoin the Commission from hearing Towner’s appeal due to a conflict of interest since the Commission previously found the testimony underlying his termination credible. The exhibits to the petition the County filed in court included an excerpt of the independent investigator’s report and the notices of disciplinary action relating to Towner’s termination. The Commission ultimately heard Towner’s appeal and ordered him reinstated with full back pay and benefits.
Towner then sued the County, in relevant part, for negligence per se and violations of the Public Safety Officers Procedural Bill of Rights Act (POBR). As to the negligence per se claim, Towner alleged the County violated Penal Code Section 832.7 by publicly disclosing his confidential personnel records without appropriate judicial review (i.e., without bringing a Pitchess motion). As to the POBR claim, Towner alleged the County intentionally publicly disclosed his confidential personnel records in violation of multiple provisions of the Government Code.
The County moved to strike Towner’s POBR and negligence per se claims under California’s anti-SLAPP statute, which allows for the early dismissal of a case that thwarts constitutionally protected speech. A court examines an anti-SLAPP motion in two parts: 1) whether a defendant has shown the challenged cause of action arises from protected activity; and 2) whether the plaintiff has demonstrated a probability of prevailing on the claim.
The trial court granted the County’s motion to strike, finding the County’s writ petition and exhibits fell within the scope of the anti-SLAPP statute as a written statement submitted in a judicial proceeding. The trial court also found that Towner failed to show a probability of success on the merits because: 1) the County’s conduct was protected by the litigation privilege; and 2) neither the POBR nor Penal Code Section 832.7 provided a private right of action based on the disclosure of confidential personnel records. Towner appealed, and the California Court of Appeal reversed.
On appeal, Towner argued that the anti-SLAPP statute did not apply because the County’s disclosure of his confidential personnel records was illegal as a matter of law. The Court of Appeal agreed, noting that Penal Code Section 832.7 states that confidential peace officer records may only be disclosed following a Pitchess motion. The Court of Appeal also noted that Government Code Section 1222 makes a public officer’s “willful omission to perform any duty enjoined by law” a misdemeanor. The Court of Appeal held that the County willfully failed to treat Towner’s personnel documents as confidential by intentionally filing them as exhibits in the writ proceeding. Since the County’s actions violated both Penal Code Section 832.7 and Government Code Section 1222, Towner adequately showed that the County’s conduct was illegal as a matter of law and therefore was not protected activity under the anti-SLAPP statute.
Based on the foregoing, the Court of Appeal reversed and remanded the matter to the trial court with directions to enter an order denying the County’s motion.
Towner v. County of Ventura, et al. (2021) 63 Cal.App.5th 761.
Prior to this decision, there was a lack of clarity on whether an agency must file a Pitchess motion to use and disclose its own peace officer personnel records in litigation or administrative hearings. This decision clarifies that an agency not only must do so but that disclosing confidential peace officer personnel records without a Pitchess motion could be a crime if willfully done. LCW attorneys can assist agencies with protecting the confidentiality of peace officer records in accordance with this decision.