In Barber v. California Department of Corrections and Rehabilitation, the Court of Appeal held that a terminated peace officer no longer has a right to inspect personnel and internal affairs records under the Public Safety Officers Procedural Bill of Rights Act (“POBOR”). 

The California Department of Corrections and Rehabilitation terminated parole agent Patrick Barber.  Barber had been terminated on two prior occasions and was reinstated both times.  Barber had appealed his third termination.  While his appeal was pending, the California Attorney General filed a Pitchess motion for production of Barber’s personnel records for purposes of a pending criminal case.  The motion was granted and Barber’s personnel records were disclosed for 1999 to 2004. 

More than six months after his termination, and after the Pitchess motion was granted, Barber made a request for his personnel and internal affairs records for 2005 to 2009.  The Department denied Barber’s request.  Relying upon Government Code section 3306.5, Barber filed a writ petition and argued that he was entitled to inspect his personnel records.  Section 3306.5 states that peace officers may inspect personnel files that are or have been used to determine an officer’s “qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.”  

The trial court was not persuaded by Barber’s two main arguments. A key factor was that Barber admitted that his request was prompted by the filing of the Pitchess motion; not by his termination.  Barber maintained that, based on documents produced in response to the Pitchess motion, he believed the Department had withheld documents relevant to the appeal of his termination.  He also argued that the documents produced in response to the Pitchess order should have been produced to him when he challenged his two prior terminations.  

The trial court disagreed with Barber, denied his writ petition, and concluded that he was no longer entitled to POBOR protections after being terminated.  The trial court held that, since there was no existing employment relationship with the Department at the time he requested his personnel records, he had no right to review the records. 

The court of appeal analyzed existing case law on the legislative intent of section 3306.5 for its ruling.  The court found that the purpose of section 3306.5 was to facilitate an officer’s ability to respond to adverse comments that could affect employment status, and to correct errors or misstatements contained in the personnel file that could adversely affect the officer’s employment.  The court also held that the statutory protection only applies to currently employed officers; not to officers appealing a termination.  The court clarified that, up until the effective date of termination, an officer does have the right to inspect his or her personnel records.  However, the right ceases to exist after the effective date of termination. 

From a practical standpoint, it is advisable to state the effective date of termination in the Notice of Termination so that your agency can use that date as a cut-off point for having to allow an officer to inspect personnel records pursuant to Government Code section, 3306.5.