Today the California Supreme Court issued a 6-1 decision in Long Beach Police Officers Association v. City of Long Beach. The case involves the issue of whether police departments are required in response to California Public Records Act (“CPRA”) requests to disclose the names of officers involved in shooting incidents while on duty. The Supreme Court, in an opinion by Justice Kennard, declined to adopt a blanket rule that the names of officers in such circumstances need not be disclosed. Instead, the Court held that to prevent disclosure a sufficient particularized showing of threat of harm had to be made by the department, and that the showing had not been made in the case before it.
In December 2010, Long Beach police officers were involved in a shooting which resulted in a citizen’s death. The Los Angeles Times made a request under the CPRA for the names of the involved officers, along with the names of officers at the department who were involved in shootings over the preceding five years. The Long Beach Police Officers Association (the “Union”) sued to stop the City from disclosing officers’ names, and the City in response determined that it also considered the information sought by the Times to be exempt from disclosure. The Times joined the litigation, arguing that the CPRA required disclosure of the information.
The City and the Union undertook two types of arguments to prevent disclosure. First, they argued that the information at issue was personnel information exempt from disclosure under the Pitchess statutes, California Penal Code sections 832.7 and 832.8. They argued that the information was related to “discipline” or “appraisal” of officers, among other things. The City also submitted a declaration explaining that since the Department conducts an administrative investigation of every officer-involved shooting, documents resulting from the investigations should be treated as protected personnel records, and the officers’ names should come under this protection. In addition, they argued that the information was protected from disclosure under balancing provisions of the CPRA, including the catch-all exemption and the exemption for personnel records the disclosure of which would constitute an unwarranted invasion of personal privacy.
The City and Union submitted declarations expressing their concern for their officers’ safety if names were released. A declaration by the Union’s president compared the situation to a then-recent police shooting case in which the release of an officer’s name led to death threats. He also cited an anonymous internet post “wishing that the children of an officer . . . would experience Christmas without their father.” The City cited the occurrence of retaliation when officers are involved in shootings of gang members, and graffiti that had appeared in the City such as “Strike Kill a Cop.” Both the Union and City explained the ease of finding information on officers and their families through the internet.
Notwithstanding this evidence, the trial court denied the request for an injunction, determining that the officers’ names were not subject to any CPRA exemption and consequently had to be disclosed. The California Court of Appeal affirmed, reasoning among other things that the evidence of potential harm presented by the Union and the City was too speculative to preclude disclosure.
The California Supreme Court granted review, and heard oral argument on March 4, 2014. Its opinion issued today, May 29, 2014. The Supreme Court declined to read Penal Code section 832.8 broadly and determined that in general, only records generated in connection with officer appraisal or discipline are protected under CPRA section 832.8, not records that could possibly be considered for officer appraisal or discipline. The Supreme Court held that although the Penal Code makes complaints or investigations of complaints confidential, the newspaper’s request here was not for complaints against officers.
As to the privacy arguments, the Supreme Court determined that the public interest in peace officer conduct is significant and in the circumstances presented in this case outweighs an officer’s privacy interest in maintaining the confidentiality of his or her name; to prevent disclosure in a case such as instant one, there needs to be evidence that disclosing a particular officer’s identity would jeopardize that officer’s safety or efficacy.
The Supreme Court summarized its holding as follows, and emphasized that it is still possible for Police Departments to prevent disclosure if a sufficient evidentiary showing is made:
“We do not hold that the names of officers involved in shootings have to be disclosed in every case, regardless of the circumstances. We merely conclude, as did the trial court and the Court of Appeal, that the particularized showing necessary to outweigh the public’s interest in disclosure was not made here, where the Union and the City relied on only . . . general assertions about the risks officers face after a shooting. . . .
The trial court’s denial of injunctive relief was without prejudice to any later evidentiary showing that disclosing a particular officer’s name would compromise that officer’s safety or the safety of the officer’s family. That ruling permits further litigation by the Union, and it reflects the trial court’s recognition, which we share, that the public’s interest in access to public records is not absolute and must be weighed against the countervailing privacy and safety interests of peace officers.”
What evidence would suffice to protect against disclosure? The Court indicates that what may suffice is evidence of specific harm to particular officers. It describes: “Of course, if it is essential to protect an officer’s anonymity for safety reasons or for reasons peculiar to the officer’s duties — as, for example, in the case of an undercover officer — then the public interest in disclosure of the officer’s name may need to give way. . . . That determination, however, would need to be based on a particularized showing, which was not made here.” Elsewhere the Court emphasized that in this case, it agreed with the Trial Court that there was “no evidence” of a “specific safety concern regarding any particular officer.” Although there was evidence that local gangs would retaliate, the shooting in question was not of a gang member. Moreover, the other evidence, for example the graffiti that read “Strike Kill a Cop” and the fact that general safety bulletins had been issued by the Department, “do not establish any specific danger to the officers involved in” the shooting at issue, or as to the other Long Beach officers involved in incidents in the past five years and whose names had been requested. It appears generalized concerns will not suffice. The showing will need to be specific to the case at hand.
Justice Chin wrote a dissenting opinion, arguing that the names of the officers in question should be exempt from disclosure in the instant case. He wrote: “Absent a showing of some greater public need for the information, we should allow law enforcement agencies to protect the very officers who are out there every day protecting us. They deserve at least that much for their brave service.”
Liebert Cassidy Whitmore presented an amicus curiae brief to the California Supreme Court on behalf of the Los Angeles County Police Chiefs’ Association in support of the position of the City and the Union, and participated in oral argument on March 4, 2014.
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