Metropolitan News-Enterprise


Monday, August 25, 2005


Page 1


Appeals Court Blocks Disclosure of Officers’ Test Results


By a MetNews Staff Writer


Urinalysis results on the three San Francisco police officers charged with assaulting a pedestrian and demanding his steak fajitas must remain confidential unless a judge rules they can be released, the First District Court of Appeal ruled Friday.

The court’s Div. One said District Attorney Terence Hallinan acted properly in obtaining the results from the officers’ confidential personnel files under the authority of Penal Code Sec. 832.7(a). The tests were done as part of an administrative investigation after the incident, which led to coverup charges—later dropped—against Police Chief Earl Sanders and other top officials.

Sanders obtained a court ruling clearing him and then retired. Hallinan and media lawyers had sought to release the test results.

But the court said the results can be released only after a court hearing addresses their admissibility under Evidence Code Sec. 350, their relevancy under Evidence Code Sec. 1043(b)(3), and whether a protective order under Evidence Code Sec. 1045(d) is appropriate.

Justice William D. Stein, writing for the court, rejected the contention advanced by the three officers—one of whom has since been fired—that Hallinan should not have been able to obtain the test results under Sec. 832.7, which makes police personnel records confidential under most circumstances.

The statutory exception for “investigations or proceedings concerning the conduct of police officers...conducted by...a district attorney’s office” applied even though the officers were not on duty at the time of the incident, Stein said.

“It is undisputed that petitioners were employed as police officers at the time of the incident in question,” the justice wrote. “Indeed, petitioners were required to undergo urinalysis testing precisely because they were so employed. Although they were off-duty, petitioners were nonetheless police officers and under a duty to protect the public.”

But Stein also rejected Hallinan’s argument that the exception justifies making the results public.

He explained:

“The People contend that the exception in section 832.7, subdivision (a) applies to both its confidentiality provision and its limitation on disclosure so that when the district attorney investigates or prosecutes police officer or police agency misconduct, he not only has unfettered access to confidential police personnel files, but there are no constraints on his use or disclosure of any information obtained from those files. The People’s interpretation of section 832.7, subdivision (a) leads to the absurd consequence that the protections specified in that section are completely lost for all information in any peace officer’s personnel file...perused by the district attorney in the course of an investigation, regardless of whether that information is ultimately admissible or relevant to a subsequent criminal or civil action. Moreover, this loss of confidentiality would occur with no notice to the officers involved, and they would have no recourse.”

Hallinan must maintain the confidentiality of the test results until the time comes to use them in prosecuting the officers, Stein said, and then the judge handling the case will have to decide if they are relevant and admissible and, if so, give the officers a chance to seek an order keeping them secret.

Justice Sandra L. Margulies and Presiding Justice James J. Marchiano concurred.

San Francisco attorney Mark Nicco, who represents one of the officers, David Lee, called the ruling “a victory for us” despite the court’s determination that Hallinan was entitled to obtain the test results. He said it may be some time before the issue is resolved, noting that a judge has not yet been assigned to preside over the officers’ trial, if it ever occurs.

The district attorney last month dismissed grand jury indictments against the three—Lee, Matthew Tonsing, and former officer Alex Fagan Jr.—and filed new criminal complaints against them.

The case is Fagan v. Superior Court (People), 03 S.O.S. 4642.


Copyright 2003, Metropolitan News Company