Friday, September 17, 2004
Court of Appeal Rules: Public Records Act Bars Hiding Identity of Disciplined Deputy
By DAVID WATSON, Staff Writer
San Diego County’s Civil Service Commission took too broad a view of a 2002 appellate court ruling when it redacted the name of a sheriff’s deputy from records of a discipline appeal released to a newspaper company, the Fourth District Court of Appeal ruled yesterday.
That court’s decision in San Diego Police Officers Association v. City of San Diego Civil Service Commission, 104 Cal.App.4th 275, holding that a statute protecting the confidentiality of peace officer personnel records barred their disclosure in public disciplinary hearings, did not authorize the redaction of anything other than the personnel records themselves from the material released to The Copley Press, Inc. in response to the company’s California Public Records Act request, Justice Alex C. McDonald explained in an opinion for Div. One.
La Jolla-based Copley publishes 10 daily newspapers, including the San Diego Union-Tribune.
The court, however, declined to reach the chief issue Copley sought to litigate in the case: whether the county’s practice of closing disciplinary hearings to the public upon a peace officer’s request violated a general right of access to “quasi-judicial” administrative proceedings.
The county adopted that practice after the SDPOA decision, reasoning that public hearings could not be held without disclosing the protected personnel records.
McDonald conceded that under NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 and state court rules, the public “has a presumptive right to attend civil and criminal proceedings, and that right of access may be denied only if the trial court, after notice and hearing, expressly finds” that an overriding interest which cannot be otherwise served requires closure. But he said it was unnecessary for the court to decide whether a similar right of access applies to disciplinary appeal hearings, since the hearing to which Copley was denied access never took place.
Instead, after the hearing officer denied the company’s motion to open the hearing, the matter was settled by stipulation, McDonald pointed out.
In its opinion in SDPOA, he noted, the court had expressly left open the question of whether an officer’s right to nondisclosure of personnel records under Penal Code Sec. 832.7 could justify closing a hearing at which such records would be introduced to the public.
“[I]t is not appropriate to decide whether an appeal hearing may be closed to the public if the peace officer does not request an open hearing because that issue is not before us on this record and we are not inclined to issue an advisory opinion on that issue,” McDonald declared. “—.That issue should be decided in a case in which the peace officer does not request an open appeal hearing and the appeal hearing is closed to the public. SDPOA did not address the issue of closed appeal hearings and we decline to address that issue on this record.”
But McDonald said the county erred in relying on SDPOA and Sec. 832.7 to decline to provide some portions of the record of the appeal proceedings to Copley and to redact the identity of the officer from the portions that were provided.
The county was correct to conclude that the confidentiality provisions of Sec. 832.7 are “imported into the CPRA” through Government Code Sec. 6254(k), a CPRA provision that permits denying the public access to “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law,” McDonald said, adding that such an incorporation was necessary to “preclude citizens from attempting to end-run section 832.7 by the artifice of a CPRA request to obtain a peace officer’s personnel records.” But he said that conclusion did not resolve the question of “whether disclosure of the appeal records are ‘exempted or prohibited pursuant to’ section 832.7.”
“Section 832.7’s confidentiality provision has a fundamental limitation: it applies only to files maintained by the employing agency of the peace officer, and does not apply to information about a peace officer the source of which is other than the employing agency’s file maintained under the individual’s name, even if that information is duplicated in that file. Therefore, the only information subject to section 832.7 and incorporated into section 6254, subdivision (k) is the written material maintained in the peace officer’s personnel file or oral testimony that is a recitation from material in that file. Testimony of a percipient witness to events, or from documents not maintained in the personnel file, is not information subject to section 832.7 even though that information may be identical to or duplicative of information in the personnel file. Section 6254, subdivision (k) therefore does not exempt from the required disclosures under the CPRA information relating to a disciplinary appeal from sources other than the peace officer’s personnel file.”
McDonald cautioned that the court was also not addressing the issue of whether some other basis for keeping portions of the record secret—though not the officer’s name—might exist. He noted that the CPRA includes a “catch-all” exemption, codified at Government Code Sec. 6255, permitting 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.”
“Thus, for example, to the extent the CSC concluded some or all of the charges were baseless, the peace officer’s legitimate privacy interests in the records might be deemed to outweigh any public interest served by disclosure under section 6255.”
Justice Judith L. Haller and Presiding Justice Judith McConnell concurred.
Attorney Guylyn R. Cummins of Gray Cary Ware & Freidenrich in San Diego, who represented Copley, said the underlying discipline case involved a deputy who responded to a domestic violence call on an Indian reservation but failed to make a felony arrest, apparently under a misapprehension about his authority to do so.
Cummins said the litigation presented Copley with “a moving target,” noting that the company had no way of knowing whether the disciplinary appeal hearing went forward after it was excluded.
“We had been kicked out of something, we knew that,” Cummins declared.
The case is The Copley Press, Inc. v. Superior Court (County of San Diego), D042251.
Copyright 2004, Metropolitan News Company