Perhaps because California citizens have become more interested in local politics in recent years, public agencies have received a marked increase in the number of requests for information under the California Public Records Act. The Act requires agencies to disclose materials to the public upon request (subject to payment of fees), unless the materials fall under particular exemptions. As those who follow this area of the law know, California courts have been construing applicable exemptions narrowly, often rejecting the interpretations advanced by public agencies.
Recently, on July 23, 2013, the Court of Appeal in San Francisco followed this trend by requiring disclosure of the names of the U.C. Davis campus police officers identified in reports commissioned by the University of California in the wake of the November 18, 2011 U.C. Davis pepper spraying incident. On that day, students and others participated in a non-violent protest over rising college costs. When a row of seated protestors refused orders to disperse, a UC Davis police Lieutenant, in front of numerous onlookers, methodically pepper sprayed the protestors. The incident was videotaped, and the video and images of the incident were widely circulated on the internet. The pepper spraying sparked public outcry, and received enormous attention from news media.
After the incident, University President Mark Yudof hired former Los Angeles Police Chief William Bratton and Kroll, his consulting company, to provide “an independent, unvarnished report about what happened at Davis.” Kroll subsequently interviewed approximately 14 campus police officers concerning the pepper spray use. The officers were ordered to appear for the interviews.
The fact gathering for the report did not have some of the features of the type of disciplinary or internal affairs investigation that would be considered exempt from disclosure under the Public Records Act. Kroll did not interview any police officer who was the target of any citizen complaint in connection with the pepper spraying, nor were any of the officers interviewed subject to internal affairs investigations in connection with the use of pepper spray. In addition, the University assured officers that the University “will not use any information that you provide to Kroll against you in any disciplinary proceeding.” The Kroll report described that campus police officers were interviewed as “witnesses.” It stated it did not rely on materials from any internal affairs investigations of the incident.
Although the Kroll report did not conform to the standard form of a disciplinary investigation, when released it did ascribe some fault. As the Court of Appeal’s opinion described, the report “collects and recites facts regarding all aspects of the incident, including how: (1) the UC Davis administration’s decision-making process worked; (2) the administration communicated instructions to the UC police officers, including the content of those instructions; and (3) the UC police officers planned and executed the clearing of demonstrators from the campus.” The Kroll report then provided an analysis that discussed “a cascading series of errors which set the stage for the use of pepper spray.”
A separate report, also commissioned by the University, apparently attributed blame more forcefully. A task force chaired by former California Supreme Court Justice Cruz Reynoso, which derived its facts exclusively from the Kroll report, contained one overall finding that “[t]he pepper-spray incident that took place on November 18, 2011 should and could have been prevented.” As the Court’s opinion described, “The Reynoso report assigns responsibility to nearly anyone involved in the pepper spray incident, from the UC Davis campus administration to the police officers who were on duty that day.”
The University made redacted versions of the reports available to the press. The redacted copies protected the identities of the officers interviewed and used pseudonyms such as “Officer F” for most of the police officers involved. However, two news organizations, the Los Angeles Times and the Sacramento Bee, were not satisfied and sought disclosure under the California Public Records Act, of un-redacted reports that disclosed the individual officers’ names.
The superior court ordered disclosure of the names pursuant to the Public Records Act, on the basis that no exemption to disclosure applied. The Union for the officers, the Federated University Police Officers Association, appealed, arguing that the exemptions routinely applicable to public complaints against officers and personnel file matters, applied here to protect the campus police officers from having their names disclosed.
The Union staked its appeal on two portions of the “Pitchess” laws governing disclosures of peace officer information. The first exemption was for records relating to mandated investigation of citizens’ complaints against an officer. The second was for police personnel records, i.e., records maintained by an employer containing personal data and employment history, including discipline history.
On July 23, 2013, however, in a published opinion, Federated University Police Officers Association v. Superior Court, the Court of Appeal held that neither exemption applied, and that the names must be disclosed. First, as to the exemption relating to investigation of citizen complaints, the Court reasoned that the exemption did not apply because nothing in the Kroll or Reynoso reports identified any citizen complaints against the officers in question. Also, even if any specific officer had been subject to a complaint, the reports were not prepared to respond to any complaint, but had been commissioned for other purposes. The Court described that, in particular, “the reports’ focus took a larger view and examined the internal workings of the UC and the UC Davis Police Department” and among other things assessed “whether institutional changes were appropriate.” While the reports made policy level recommendations, they did not make any recommendations on admonishing or disciplining any particular officer.
The Court reasoned that the exemption for personnel file information did not apply because the officers’ names as set forth in the reports did not meet the statutory criteria for such information. The Court reasoned that “[t]he presumptive rationale in exempting these categories of information from public disclosure is to shield highly personal information that is often found in an individual officer’s employment or other personnel file, such as the officer’s address, telephone number, marital status, medical background, and other highly private matters,” and also to protect “documents assessing an individual officer’s on-the-job performance.” The Court reasoned that the information sought in the case before it did not qualify because the reports were not directed to specific officers individually.
The Court of Appeal also pointed out that police officer work is generally of a public nature. The Court pointed out that police typically wear name tags to identify themselves to the public. Also, police officers’ identities and conduct on the job are matters “with which the public has a right to concern itself.”
The Court of Appeal held that its order of disclosure would not take effect until the Union had had an opportunity to seek review from the California Supreme Court.
Is California Supreme Court review likely? The Court takes only a small percentage of cases. However, the Supreme Court is currently set to hear argument soon on another prominent case concerning Public Records Act disclosure of peace officer names in Long Beach Police Officers Association v. City of Long Beach. In that case, the Court will determine whether the Act requires disclosure of the names of officers involved in on-duty shooting incidents. The Federated University POA case may serve as an appropriate companion case for this pending Long Beach case. (Liebert Cassidy Whitmore prepared an amicus curiae brief to the Supreme Court in the Long Beach case on behalf of the Los Angeles County Police Chiefs.)
We will advise of further developments as they occur.
UPDATE: On September 5, 2013, the California Supreme Court granted the union’s petition for review in the Federated University case, but made the decision as part of a “grant and hold” order. The Court described: “Further action in this matter is deferred pending consideration and disposition of a related issue in Long Beach Police Officers Association et al. v. City of Long Beach, et al., S200872 . . . or pending further order of the court.” Thus, a final decision in Federated University will have to await the outcome in the Long Beach case.