Provided by CPOA Legal Counsel, James R. Touchstone, Jones & Mayer
In January 2020 in the case of Becerra v. Superior Court[1], the California First District Court of Appeal held that California Penal Code section 832.7, as recently amended by SB 1421, generally requires in response to a California Public Records Act request the disclosure of all responsive records in the possession of the California Department of Justice (the “Department”), regardless whether the records pertain to officers employed by the Department or by another public agency and regardless whether the Department or another public agency created the records.
Background
Enacted in 1968, the California Public Records Act (“CPRA”; Government Code section 6250 et seq.) grants public access to public records held by state and local agencies. Modeled after the federal Freedom of Information Act,[2] the CPRA was enacted for the purpose of increasing freedom of information by giving members of the public access to records in the possession of state and local agencies. The Legislature declared that such “‘access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.’” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 290 (citing Section 6250)).
While the CPRA must be “broadly construed” because its statutory scheme “furthers the people’s right of access” (Cal. Const., art. 1, section 3(b)(2)), the act does not confer an absolute right of access. As part of the CPRA, the Legislature included a provision declaring it was “mindful of the right of individuals to privacy.”[3] Thus, judicial decisions interpreting the CPRA try to balance the public right to access to information, the government’s need, or lack of need, to preserve confidentiality, and the individual’s right to privacy. (See Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1282 (“Copley Press”)).
The CPRA balances the dual concerns for privacy and disclosure by providing for various exemptions that permit public agencies to refuse disclosure of certain public records.[4] These exemptions are generally designed to protect the privacy of persons whose data or documents come into governmental possession.[5] Law enforcement investigatory files were, until recently, categorically exempted from the CPRA’s general requirement of disclosure. (Government Code section 6254(f).)
In 1978, the Legislature enacted Penal Code sections 832.7 and 832.8 to mandate confidentiality of peace officer personnel records. In 2018, the Governor signed Senate Bill No. 1421 (“SB 1421”), which amended section 832.7.[6] Under SB 1421, Section 832.7 kept the provision that “personnel records of peace officers and custodial officers and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed” in any criminal or civil proceeding except pursuant to discovery under certain portions of the Evidence Code. (Section 832.7(a)).
As amended, however, Section 832.7(a) now provides that the confidentiality of officer personnel records is subject to a newly added subdivision (b) (hereafter Section 832.7(b)), which states in relevant part: “Notwithstanding subdivision (a) [of section 832.7], subdivision (f) of Section 6254 of the Government Code,[7] or any other law, the following peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code)” (Section 832.7(b)(1); italics added), namely, records “relating to the report, investigation, or findings” of an incident falling into any of the following three categories: (1) an incident in which an officer discharged a firearm at a person or used force against a person resulting in death or great bodily injury;[8] (2) “an incident in which a sustained finding was made by any law enforcement agency or oversight agency” that an officer “engaged in sexual assault involving a member of the public”;[9] and (3) “an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.”[10] The First District Court referred to these three categories of records collectively as “officer-related records” throughout its opinion.
In sum, Section 832.7, as amended, specifies that the officer-related records pertaining to such incidents and findings are not confidential, and subject to disclosure pursuant to the CPRA.
Facts of the Case
Xavier Becerra is the Attorney General of the State of California and the chief law officer of the State. The California Department of Justice is a state agency that employs sworn peace officers and possesses certain records relating to the officers that it employs and records related to officers who are employed by other state and local law enforcement agencies.
In January 2019, the First Amendment Coalition requested from the Department all records within its possession subject to disclosure under amended Section 832.7. Specifically, it asked for “records relating to a report, investigation or finding . . . of any of the following: (1) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer; [¶] (2) An incident in which the use of force by a peace officer or custodial officer against a person resulting in death or in great bodily injury; and/or [¶] (3) An incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.” It sought records for incidents that occurred in 2016, 2017, and 2018.
In February 2019, pursuant to the CPRA and Section 832.7, media organization KQED requested records from Attorney General Becerra and the California Department of Justice (collectively, the “Department”). Specifically, they requested “[r]ecords from Jan. 1, 2014 to Dec. 31, 2018 of sustained findings that a peace officer, including those employed by the Ca. Dept. of Justice, committed sexual assault or dishonesty-related misconduct.” KQED also sought “[r]ecords from Jan. 1, 2014 to present relating to the report, investigation, or findings of incidents in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury.”
The Department partially denied the requests of First Amendment Coalition and KQED (collectively, “real parties”), explaining that “[t]o the extent that the Attorney General has obtained records from other state and local law enforcement agencies, the Attorney General is not the agency that ‘maintains’ those documents. A requester may properly seek disclosure from the employing agency, which not only maintains the records, but will be best situated to assess any applicable exceptions to the disclosure requirement and any statutorily required redactions concerning sensitive and private information. Further, to the extent that the Attorney General has obtained such records in relation to investigations or proceedings that the Attorney General is conducting, the disclosure provisions in Section 832.7 do not apply to the Attorney General, under Section 832.7, subdivision (a).”
In March 2019, real parties jointly petitioned for a writ of mandate to compel the Department’s compliance with their CPRA requests, including those “records that were created by or involve another state or local agency” and “records that concern the Attorney General’s own investigations.” In its answer to the petition, the Department admitted that it possessed “certain records sought by [real parties], likely totaling many thousands of such records if not more” and that it “created some but not all of those records.” The Department again claimed that neither Section 832.7 nor the CPRA required or authorized the disclosure of records it obtained from other state or local law enforcement agencies and further asserted that such records could be requested directly from those agencies.
In July 2019, the trial court granted real parties’ writ petition. The court ordered the Department to produce “all requested records except those records or parts thereof that this court determines may be lawfully withheld or redacted.” The Department filed a petition for a writ of mandate seeking to overturn the trial court’s order.
Discussion
The California First District Court of Appeal first considered whether Penal Code Section 832.7 contemplated disclosure of officer-related records in the Department’s possession if such records concerned officers who were not employed by the Department or if such records were not created by the Department.
Examining the statutory language, the Court noted that Section 832.7(b)(1) provided in relevant part: “Notwithstanding subdivision (a) [of Section 832.7], subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act [Citation]” (Italics added). The Court explained Section 832.7(b)(1), read together with its subparts, deemed as nonconfidential—and subject to public inspection pursuant to the CPRA—all records maintained by a state agency relating to reports, investigations, or findings from incidents involving an officer’s discharge of a weapon; an officer’s use of deadly force or force resulting in great bodily injury; and incidents involving a sustained finding of a sexual assault or dishonesty by an officer.[11] Because the identified officer-related records were deemed by Section 832.7(b)(1) to be nonconfidential public records available for public inspection pursuant to the CPRA, the Court next turned to the CPRA provisions governing the disclosure of public records.
The Court observed that the CPRA stipulates that “[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided.”[12] The CPRA defines the term “public records” broadly as including “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”[13] The Court found that a plain reading of these CPRA statutes meant that, ordinarily, members of the public may inspect “any” public record “retained by” or in the possession of a state agency such as the Department, even if the record was not “prepared, owned, [or] used” by the particular agency.
The Court determined that Section 832.7’s statutory language, whether considered on its own or in conjunction with the CPRA, was clear in contemplating disclosure of the records requested by real parties here. The Court concluded that standing on its own, Section 832.7’s statutory phrase “peace officer . . . personnel records and records maintained by any state or local agency” (italics added) made clear that officer-related records in the Department’s possession were subject to disclosure, regardless whether such records involved peace officers employed by the Department or by another state or local agency (“non-Department officers”), and no matter which agency created them. The Court found this interpretation strengthened if Section 832.7 was considered in conjunction with the CPRA, which explicitly states that, except as provided by the CPRA, a member of the public has the right to inspect “any writing containing information relating to the conduct of the public’s business . . . retained by” a state or local agency.[14]
The Department contended that Section 832.7 “plainly requires an officer’s employing agency—but no other agency—to disclose records.” The Department argued that the records made nonconfidential by subdivision (b) of Section 832.7 were regulated by subdivision (a), which explicitly shields “records maintained by any state or local agency pursuant to section 832.5,” which in turn requires employing agencies to establish procedures for investigating public complaints against its officers and to maintain records of those complaints and any related investigation. (Sections 832.5, 832.7(a); italics added.) Thus, according to the Department, Section 832.7(b)’s dictate that “records maintained by any state or local agency shall not be confidential” was limited to records maintained pursuant to Section 832.5, i.e., those in the possession of an officer’s employing agency.
The First District disagreed, pointing out first that Section 832.7(b), on its face, explicitly states its provisions are not restricted by subdivision (a). (Section 832.7(b)(1) [“Notwithstanding subdivision (a)”]). The Court added that had the Legislature wanted to limit its disclosure amendments to records maintained by an officer’s employing agency or to records created by a public agency, the Legislature could have easily repeated in subdivision (b) the same “pursuant to section 832.5” qualification it used in subdivision (a), or have used the phrase “and employee-related records maintained by any state or local agency,” or the like. However, the Legislature had not done so. The Court also found the Department’s construction to be at odds with the CPRA’s broad language defining “public records” as “any writing” containing information relating to the public’s business that is “retained by” a state or local agency.[15]
Although the First District declared that the statutory language was unambiguous, the Court nevertheless chose to “look to legislative history to confirm our plain-meaning construction of [the] statutory language.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1046). The Court explained that the legislative intent behind SB 1421 was to provide transparency regarding instances of an officer’s use of significant force and sustained findings of officer misconduct by allowing public access to officer-related records maintained either by law enforcement employers or by any state or local agency with independent law enforcement oversight authority. Moreover, in amending Section 832.7, the Legislature sought to afford the public “the right to know all about serious police misconduct,” to stop concealing incidents where an officer violated civilian rights, and to “address and prevent abuses and weed out the bad actors.”[16]
The First District held that these legislative aims were best advanced by a construction that authorized disclosure of all responsive officer-related records in the possession of a state agency, regardless whether they pertained to officers employed by the agency and no matter which agency created them. The Court also explained that this interpretation of the CPRA and Section 832.7 not only promoted the purposes reflected in the statutory language and legislative history, it harmonized with the constitutional principle that the people have a right to access information concerning the conduct of the people’s business and that restrictions on this right are narrowly construed. (Cal. Const., art. I, § 3, subd. (b)(1)-(2)). The Court stated that its construction also aligned with case law rejecting the notion that a record’s location, rather than its content, determines its confidentiality.
The CPRA Catchall Exemption
The Court then considered whether officer-related records that are subject to disclosure under Section 832.7 may nonetheless be withheld pursuant to the catchall exemption set forth in the CPRA. This Court noted that this exemption, codified in Government Code section 6255(a), permits a public agency to withhold a public record under the CPRA if the agency demonstrates “that 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.” (Section 6255(a)). The Department contended that requests for Section 832.7 records may be subject to this CPRA exemption, while real parties argued that Section 832.7’s newer and more detailed provisions for redacting or withholding records must be deemed to prevail over the more general CPRA exemption.
The Court looked again to the statutory language, specifically that of Section 832.7(b)(1), which states in part: “Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) . . . .”
The Court found nothing in the statutory text suggesting that the CRPA as a whole was displaced by Section 832.7 because the Court determined that the section’s beginning phrase “[n]otwithstanding . . . any other law” could not reasonably be read to do away with the entire CRPA. The First District explained that “only those provisions of law that conflict with” [S]ection 832.7(b)—”not . . . every provision of law”[17]—are inapplicable. The Court decided that the Legislature would not expressly mention one specific CPRA exemption (i.e. Section 6254(f)) while contemplating the clause as encompassing other CPRA exemptions. The Court explained that had the Legislature intended for Section 832.7 to override the CPRA catchall exemption, it could have explicitly said so, as it did for Government Code Section 6254(f) and in other statutes.
Looking at the legislative history of the Section 832.7 amendments for confirmation of the appropriate construction, the Court found that the section’s legislative history reflected the Legislature’s awareness of the CPRA catchall exemption, as well as several other CPRA exemptions apart from the law enforcement investigatory files exemption set forth in Government Code Section 6254(f). However, despite such awareness, the Court noted that none of the committee reports or analyses made any mention of any intent to nullify or override the catchall exemption via the amendments to Section 832.7.
Because both the language and legislative history of the Section 832.7 amendments were silent as to the nullification of any CPRA exemption—besides the Section 6254(f) exemption, the Court concluded that the CPRA catchall exemption may otherwise apply to requests for Section 832.7 officer-related records.
The Balance of Interests
The remaining consideration for the First District was whether the Department had sufficiently demonstrated that the records sought by real parties could be withheld under the CPRA catchall exemption. The Department’s main argument for withholding records concerning non-Department officers[18] was the “onerous burden of reviewing, redacting, and disclosing records regarding other agencies’ officers, which involves “potentially millions of records.” In the Department’s view, this burden outweighed the public interest in obtaining those records from the Department rather than from the other state and local agencies that employed those officers.
The Court explained that although the CPRA catchall exemption may be invoked based on the concern that segregating nonexempt from exempt information would be unduly burdensome (American Civil Liberties Union Foundation v. Superior Court (2017) 3 Cal.5th 1032, 1043 (“ACLU Foundation”); State Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1188, the withholding of responsive records was not permitted unless the Department demonstrated “‘a clear overbalance on the side of confidentiality.’“ (ACLU Foundation, supra, at p. 1043.)
The First District noted that the trial court assumed the CPRA catchall exemption was available but determined the Department’s showing did not justify nondisclosure. The First District also concluded that the Department had not demonstrated “‘a clear overbalance on the side of confidentiality.
In support of its view, the Department offered the two-page declaration of Michael Newman, Senior Assistant Attorney General of the Department’s Civil Rights Enforcement Section. However, the Court found that Newman’s declaration was lacking in meaningful detail. For example, the Court noted Newman provided no information regarding the records on four of the six matters he raised or the potential burden arising from them. The Court perceived “a disconnect” between the hundreds of thousands of records suggested by Newman and the “potentially millions of records” that the Department’s petition claimed as its burden for review. Moreover, the Court stated that there was a “paucity of information regarding the Department’s costs of complying with real parties’ request,” notable in light of certain SB 1421 legislative materials reflecting that the Department had reported to the Legislature estimated “costs of $263,000 in 2018-19, $437,000 in 2019-20, and $422,000 in 2020-21 and ongoing” in order to “implement the new requirements, handle an increase in [CPRA] requests, and potential increased litigation.”
Thus, the Court concluded the declaration did not sufficiently demonstrate that public fiscal and administrative concerns over the expense and inconvenience of responding to real parties’ records request clearly outweighed the public interest in disclosure. The CPRA catchall exception thus did not apply to the records at issue here. Accordingly, the First District denied the Department’s petition for writ of mandate.
HOW THIS AFFECTS YOUR AGENCY
This opinion clarifies two aspects of SB 1421’s amendments to Section 832.7. First, SB 1421 did not override other exemptions set forth in the CPRA, other than Section 6254(f), for the categories of documents covered by SB 1421. Accordingly, other potential exemptions could be asserted with respect to any requests for disclosure, including, but not limited to, the catchall exemption set forth in Section 6255. Second, the opinion clarifies that agencies that are in possession of potentially responsive SB 1421 documents that were created by another agency have a duty to respond to a SB 1421 CPRA request. This response may take several forms, such as assertion of appropriate exemptions to disclosure, redaction and disclosure of responsive documents, or to simply provide responsive documents if redactions are not necessary to protect the privacy rights and any other applicable privileges with respect to any persons identified in the responsive documents. In light of the Court’s ruling on this issue, if an agency possesses records created and generally maintained by another law enforcement agency, those agencies may wish to coordinate production of any responsive documents to ensure consistency in SB 1421 CPRA responses.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] 2020 Cal. App. LEXIS 78 (1st Dist. Jan. 29, 2020).
[2] 5 U.S.C. section 552 et seq.
[3] Section 6250.
[4] Government Code sections 6254-6255.
[5] Copley Press, supra, 39 Cal.4th at p. 1282.
[6] Section 832.7, as amended by Stats. 2018, ch. 988, section 2, eff. Jan. 1, 2019.
[7] Government Code section 6254(f) is a CPRA provision that exempts disclosure of “[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.”
[8] Section 832.7(b)(1)(A)(i), (ii).
[9] Section 832.7(b)(1)(B)(i)-(iii).
[10] Section 832.7(b)(1)(C)).
[11] Section 832.7(b)(1)(A)-(C).
[12] Government Code section 6253(a), italics added.
[13] Government Code section 6252(e), italics added.
[14] Government Code section 6252(e).
[15] Government Code sections 6252(e), (a).
[16] Stats. 2018, ch. 988, Section 1 (Sen. Bill No. 1421); Assem. Com. on Public Safety Rep., supra, p. 4.
[17] Arias v. Superior Court, 46 Cal.4th 969, 983 (2009).
[18] This term refers to peace officers employed, not by the Department itself, but by another state or local agency.
