On December 12, 2016, the 2nd District Court of Appeal held, in Riske v. Superior Court (City of Los Angeles), that Evidence Code 1043 and 1045 (“Pitchess motion”), governing the discovery of peace officer personnel records, is not limited to cases involving officers who either witnessed or committed misconduct.
“If a plaintiff can demonstrate the officer’s personnel records are material to the subject matter of the litigation, the records must be produced by the Custodian of Records and reviewed by the court at an In Camera Hearing in accordance with the statutory procedures to assess the discoverability of the information contained in them. The court must then order production of those records that are relevant and not otherwise protected from disclosure.”
Facts
“According to his complaint, Riske worked as a police officer with the Department from 1990 until his retirement in September 2014. In 2008, while working as a Detective-I in the Southeast Narcotics Enforcement Division, Riske reported two of his fellow officers for filing false police reports and testified against the officers at an administrative hearing that ultimately resulted in their termination. Afterward, Riske’s colleagues referred to him as a ‘snitch’ and refused to work with him. Between 2011 and 2013 he applied for 14 highly desirable Detective-I and Detective-II positions. Notwithstanding his superior qualifications, his applications were denied each time in favor of less experienced or less qualified persons.”
“In September 2014 Riske sued the Department for unlawful retaliation in violation of Labor Code Section 1102.5, alleging the Department’s refusal to promote him was in retaliation for his protected whistleblower activity.” The City “moved for summary judgment arguing, among other things, it had a legitimate business reason for its promotional decisions—the selected candidates were more qualified than Riske.”
“Riske served the City with a discovery request for all documents submitted by the successful candidates for the relevant positions and all documents relied on by the Department to select those officers for the positions, subject to the terms of the parties’ stipulated protective order. The City produced some documents, including rating sheets and ranking matrices used by the Department’s decision makers for each position, but nothing from the selected candidates’ confidential personnel files.”
“Riske moved under Evidence Code Sections 1043 and 1045 for production of the selected officers’ Training Evaluation and Manage System (“TEAMS”) reports, which summarized the successful candidates’ qualifications and history of commendations and complaints, and their last two performance evaluations, known as Standards Based Assessments.” Riske produced evidence that the reports were crucial in the selection process.
“The City opposed Riske’s motion, arguing peace officer personnel records are confidential and the statutory scheme permitting discovery of those records did not apply when the officers whose personnel records were sought had neither witnessed nor been accused of any misconduct.”
“The Superior Court denied Riske’s motion, ruling the discovery procedures applicable to peace officer personnel records did not apply to records of officers who had not committed or witnessed any misconduct.” On February 5, 2016 Riske filed a Petition for Writ of Mandate in the Court of Appeal, challenging the Superior Court’s denial of his discovery motion and the Court of Appeal overruled the Superior Court.
Court Discussion
In 1978 the Legislature enacted Penal Code Sections 832.7 and 832.8 and Evidence Code Sections 1043 through 1045. Penal Code Section 832.7, subdivision (a), provides in part that the personnel records of a peace or custodial officer are “confidential and shall not be disclosed in any criminal or civil proceeding” except by discovery procedures set forth in Evidence Code Sections 1043 and 1045.
Evidence Code Section 1043 requires the party seeking the discovery of peace or custodial officer personnel records or information from those records to file a motion with the court and give notice of the motion to the government agency that has custody or control of the records. The discovery motion must include, among other things, a description of the type of records or information sought and affidavits showing good cause for their discovery or disclosure.
“Good cause for discovery of peace officer personnel records under the statutory scheme exists when the party seeking the discovery shows the ‘materiality’ of the information to the subject matter of the pending litigation and states upon ‘reasonable belief’ that the agency has the type of information sought.”
“If this threshold showing of good cause is met, the trial court must then review the pertinent documents in chambers in conformity with Evidence Code Section 915 and disclose only that information falling within the statutorily defined standards of relevance.” The Court notes that “this two-step process for discovery of peace officer personnel records [notice motion and in camera review] balances the officer’s strong privacy interests in his or her own personnel records with the needs of civil litigants and criminal defendants to obtain information material to their claim or defense.”
“The Superior Court denied Riske’s discovery motion without holding an In Camera Hearing because it agreed with the City the discovery procedures for peace officer personnel records did not apply when the officers whose records were sought did not cause or witness the plaintiff’s injury. The court erred in narrowly construing the statute to contain such a limitation.”
“The critical limitation for purposes of the initial threshold determination is materiality, which, in this context, means the evidence sought is admissible or may lead to discovery of admissible evidence.”
After analyzing cases cited by the City, the Court stated that “(c)ontrary to the City’s suggestion, the dispositive factor in these cases was not the presence or absence of the officer during the episode of misconduct at issue; it was the materiality of the officer’s records to the issue before the court. When the officer’s conduct was material to the claim, good cause was found.”
In Riverside County Sheriff’s Department v. Stiglitz (2014) 60 Cal. 4th 624, a Deputy challenged her termination by claiming disparate treatment. “To prove the allegations in her complaint, she moved under Evidence Code Section 1043 for production of certain personnel records of several employees who had been disciplined” for similar misconduct, but had not been terminated.
“The Sheriff’s Department objected, arguing the Deputy had not, and could not, establish good cause for an In Camera Hearing because none of the officers whose records were sought was involved in the underlying incident that led to the Deputy’s termination. The hearing officer ordered production of the records, and the Sheriff’s Department sought to overturn that decision by an administrative writ of mandate.”
Ultimately, the California Supreme Court “rejected the Sheriff’s Department argument [that] the records were not discoverable as a matter of law because the officers whose personal information was sought had no involvement in the Deputy’s claimed injury . . . . ”
The Court held that “Evidence Code Sections 1043 and 1045 do not limit the production of confidential personnel records to those officers who participated in, or witnessed, the alleged wrongdoing at issue in the litigation. If the plaintiff can show the confidential personnel records of officers who were not involved in the injury are nonetheless material to the litigation, he or she has demonstrated the good cause necessary to obtain In Camera review.”
HOW THIS AFFECTS YOUR AGENCY
Access to the personnel files of peace officers is significantly protected by law and employing agencies are obligated to ensure the information is not released, in a criminal, civil, or administrative proceeding, unless all elements of those laws are met. There has been an expansion of those restrictions over time.
For example, as set forth in the Stiglitz case, a Pitchess motion can be brought in an administrative hearing and ruled on by a hearing officer, as opposed to a judicial officer. In addition, Stiglitz held that access to a non involved officer’s personnel information can be obtained if it can be shown to be relevant to the underlying matter at issue.
In the instant case, the Court of Appeal held that “Riske’s retaliation case rests on the premise that persons less qualified than he were promoted ahead of him in retaliation for his protected whistleblower activity. The City’s defense, at least in part, was that the successful candidates were more qualified. Information in the TEAMS report and performance evaluations of the successful candidates could very well be material to Riske’s claim the City’s stated business reason was a pretext for unlawful retaliation.”
It is important to ensure that the confidentiality of peace officer personnel information is protected by the employing agency. At the same time, however, it is just as important to recognize the evolution of the law governing this subject. Between the Stiglitz decision, and now the Riske case, it obviously appears that there has been an expansion regarding discovery of such records.
As with all legal issues, it is imperative that you seek out and secure advice and guidance from your agency’s legal counsel.
As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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