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California First District Court of Appeal Decision Disagrees With Santa Ana POA Case and Holds That Peace Officers Under Administrative Investigation Are NOT Automatically Entitled to Reports and Complaints Prior to Any Further Interrogation
On April 26, 2021, the First District Court of Appeal published its decision in Oakland Police Officers Association v. City of Oakland (2021) — Cal.App.5th — (“Oakland POA”). The case provides critical guidance regarding what information a law enforcement agency must provide to a peace officer before conducting a second or subsequent interrogation of the officer in an administrative investigation under the Public Safety Officers Procedural Bill of Rights Act (“POBRA”). Liebert Cassidy Whitmore attorneys J. Scott Tiedemann and Alex Wong submitted an amicus brief for the League of California Cities and the Los Angeles County Police Chiefs Association on behalf of the City of Oakland, which prevailed in the case.
Government Code section 3303, subsection (g) provides:
The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer’s personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
Previously, in Santa Ana Police Officers Association v. City of Santa Ana (2017) 13 Cal.App.5th 317 (“Santa Ana POA”) the Fourth District Court of Appeal held that under Section 3303, subdivision (g), officers under investigation were not only entitled to access a recording of their own interrogation prior to a subsequent interrogation but were also entitled to stenographer notes, reports and complaints. Prior to the Santa Ana POA decision, based on the California Supreme Court’s decision in Pasadena Police Officers Association v. City of Pasadena (1990) 51 Cal.3d 564 (“Pasadena POA”), most agencies had understood that officers were only entitled to access a recording of their prior interrogation before a subsequent interrogation. The Santa Ana POA holding created significant administrative and substantive concerns for effectively investigating peace officer misconduct. For example, if a police chief reviewed an investigation report and ordered investigators to conduct a follow-up interrogation of the officer, then the Santa Ana POA case suggested that investigators would have to provide the officer under investigation with a copy of the report, including statements by witnesses and investigator conclusions, prior to conducting the subsequent investigation. Agencies were reasonably concerned that, among other things, providing such extensive discovery before an interrogation may influence an officer’s recollection and undermine the integrity of an investigation.
In Oakland Police Officers Association v. City of Oakland, the First District Court of Appeal expressly disagreed with the Santa Ana POA Court’s interpretation of Government Code section 3303. Reminiscent of the Supreme Court’s decision in Pasadena POA, the First District determined that mandating complaints and reports be disclosed prior to a subsequent interrogation is, “inconsistent with the plain language of the statute and undermines a core objective under POBRA—maintaining the public’s confidence in the effectiveness and integrity of law enforcement agencies by ensuring that internal investigations into officer misconduct are conducted promptly, thoroughly, and fairly.”
In Oakland POA, the Oakland Police Department had conducted an internal affairs investigation into several officers’ handling of a mental health welfare check that resulted in a citizen complaint alleging unlawful search and seizure, excessive force, harassment, discrimination and property damage. Following the investigation, which involved separate interrogations of each of the involved officers, the Department cleared the officers of wrongdoing. Subsequently, the Oakland Community Police Review Agency (“CPRA”), a civilian oversight agency with independent authority to investigate claims of police misconduct, conducted its own investigation. Prior to the CPRA’s interrogation of the officers, counsel for the officers demanded copies of all “reports and complaints” pursuant to Government Code section 3303, subdivision (g). The CPRA denied the request and refused to disclose the materials. The CPRA thereafter determined that officers knowingly violated the complainant’s civil rights and then actively concealed the violation from investigators.
The officers and their union filed a petition for writ of mandate alleging the City violated their rights under Government Code section 3303, subdivision (g), by refusing to disclose reports and complaints prior to the officers’ supplemental interrogations. The trial court, constrained by the Santa Ana POA decision, granted the petition and precluded the use of the officers’ interrogation testimony for disciplinary purposes. The City appealed.
In reversing the trial court’s decision and finding no mandatory obligation to disclose reports and complaints prior to a second interrogation of an officer, the Court of Appeal looked at both the statutory construction as well as the legislative history of the Government Code section 3303, subdivision (g). First, the Oakland POA Court noted that under the plain language of the statute, the only investigation materials an officer was entitled to “prior to” any further interrogation was a “tape recording” of the earlier interrogation. As the Legislature did not use similar language for reports or complaints, the Court concluded the Legislature did not intend to establish a post-interrogation deadline for disclosing those materials. Rather than adopt the City’s position that materials need only be disclosed at the commencement of disciplinary proceedings, the Court instead concluded that an agency has the statutory right to withhold materials it deems confidential. The Court further held that an agency may deem materials confidential if it finds doing so satisfies Evidence Code section 1040-1041, “or if disclosure would otherwise interfere with an ongoing investigation.” Importantly, the Court also held that nothing in Government Code section 3303 prohibits an agency from “de-designating” records previously deemed confidential when the basis for confidentiality no longer exists, such as the completion of the investigation.
The Oakland POA Court held that if punitive action is contemplated at the conclusion of an investigation, the agency will need to determine whether to de-designate the materials and disclose them, or decline to bring charges on the basis of any materials that are withheld. The Court also harmonized its interpretation of Government Code section 3303, subdivision (g), with an officer’s right to review and comment on adverse entries in personnel files pursuant to Government Code sections 3305 and 3306, by holding that those rights do not extend to review of materials temporarily deemed confidential under section 3303 for purposes of an active investigation. However, those rights would still attach at the conclusion of an investigation.
The Court also considered the legislative history of Government Code section 3303 and noted that the bill as originally introduced did not provide any basis for agencies to protect the integrity of investigations by withholding sensitive information. However, the Court noted that by granting agencies the authority to withhold confidential materials, the Legislature intended to strike a balance between a police officer’s entitlement to relevant discovery and the agency’s ability to supervise employees effectively and to safeguard the integrity of internal investigations. Accordingly, the Court noted the timing of disclosure of notes, complaints and reports is guided by an investigating agency’s exercise of its discretion to designate materials confidential in furtherance of its investigative objectives and to release nonconfidential materials upon request of the officer under investigation.
Under the Oakland POA decision, agencies have the discretion to temporarily designate reports and complaints and other investigative materials confidential in order to protect the integrity of an ongoing administrative investigation, and then de-designate those materials at the conclusion of the investigation so that they may be used for disciplinary or other personnel purposes. Agencies within the Fourth District still have to contend with the Santa Ana POA decision, but may have some more confidence in defending a decision to withhold information prior to conducting a subsequent interrogation.
This decision establishes a clear split in authority between California’s First and Fourth Appellate Districts, potentially making the issue ripe for the California Supreme Court to weigh in. Unless and until it does, agencies throughout California still have to contend with the Santa Ana POA decision. In the event of litigation, agencies will need to persuade trial courts why they should rely upon the Oakland POA case rather than the Santa Ana POA decision, but agencies may have some more confidence in defending a decision to withhold information prior to conducting a subsequent interrogation.