Filed 8/31/06
IN THE SUPREME COURT OF CALIFORNIA
THE COPLEY PRESS, INC.,
Petitioner,
S128603
v.
Ct.App.
4/1
D042251
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
San
Diego
County
Respondent;
Super. Ct. No. GIC807922
)
COUNTY OF SAN DIEGO et al.,
)
Real Parties in Interest.
We granted review in this case to consider the extent, if any, to which the
California Public Records Act (CPRA or Act) (Gov. Code, § 6250 et seq.) requires
disclosure to a newspaper publisher of records of the County of San Diego Civil
Service Commission (Commission) relating to a peace officer’s administrative
appeal of a disciplinary matter. The Court of Appeal held that the trial court erred
in denying the disclosure request in its entirety, and ordered the Commission to
disclose the requested records, including the name of the peace officer, redacted
only to exclude certain written material in the personnel file maintained by the
1
officer’s “employing agency,” as that term is used in Penal Code section 832.8,1
and oral testimony that is a recitation from that material. We find that the Court of
Appeal read the term “employing agency” too narrowly. We therefore reverse the
Court of Appeal’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2003, The Copley Press, Inc. (Copley), which publishes the San
Diego Union-Tribune newspaper, learned that the Commission had scheduled a
closed hearing in case No. 2003-0003, in which a deputy sheriff of San Diego
County (sometimes hereafter referred to as County) was appealing from a
termination notice. Copley requested access to the hearing, but the Commission
denied the request. After the appeal’s completion, Copley filed several CPRA
requests with the Commission asking for disclosure of any documents filed with,
submitted to, or created by the Commission concerning the appeal (including its
findings or decision) and any tape recordings of the hearing. The Commission
withheld most of its records, including the deputy’s name, asserting disclosure
exemptions under Government Code section 6254, subdivisions (c) and (k).
Copley then filed in the superior court a petition for a writ of mandate and
complaint for declaratory and injunctive relief, seeking access to the remaining
records and a declaration that the Commission must hold public hearings unless
closure is otherwise justified by law. With the court’s permission, the San Diego
Police Officers Association and the San Diego County Sheriffs’ Association
(interveners) intervened. On May 14, 2003, the trial court denied relief, citing San
Diego Police Officers Assn. v. City of San Diego Civil Service Com. (2002) 104
Cal.App.4th 275 (SDPOA) and sections 832.7 and 832.8.
1
All further unlabeled statutory references are to the Penal Code.
2
Shortly after the trial court filed its decision, Copley filed two more CPRA
requests with the Commission asking for all documents regarding the appeal “in
unredacted form.”2 In response, the Commission provided a number of additional
documents, including the termination order—which cited the grounds for
discipline and outlined the facts supporting each ground—the hearing officer’s
recommendation that the Commission accept a stipulation disposing of the appeal,
and the minutes of the meeting during which the Commission approved the
recommendation. According to those documents, the termination order was based
on the deputy’s failure to arrest a suspect in a domestic violence incident despite
having probable cause to do so, failure to prepare a written report documenting the
incident, and dishonesty in falsely indicating in the patrol log that the victim bore
no signs of injury and the suspect was “gone on arrival.” In the stipulation, the
deputy voluntarily resigned and withdrew the appeal, and the sheriff’s department
withdrew the termination action and agreed to change the deputy’s exit status to
“terminated—resignation by mutual consent” and to “line out” the untruthfulness
charge.
Unsatisfied, Copley filed a petition for writ of mandate with the Court of
Appeal seeking relief from the trial court’s order of May 14, 2003. It asked for an
order requiring the Commission to disclose the deputy’s name and all documents,
evidence, and audiotapes from the appeal. It also requested a declaration that the
Commission’s denial of access to the appeal hearing and its failure to disclose all
hearing materials were unlawful, and an injunction precluding future denials of
access.
2
Copley’s stated “purpose” for these requests was to obtain documents “that
were not available at the time of [its earlier] requests” and “to make sure [it had]
all documents relating to the case that” the Commission was “going to release.”
3
The Court of Appeal granted partial relief. Regarding disclosure of the
Commission’s records, the court first held that the confidentiality provisions of
Penal Code section 832.7 “should be imported into the CPRA through”
Government Code section 6254, subdivision (k), which provides that the CPRA
does not require disclosure of “[r]ecords, the disclosure of which is exempted or
prohibited pursuant to federal or state law, including, but not limited to, provisions
of the Evidence Code relating to privilege.” The Court of Appeal next reasoned
that Penal Code section 832.7’s “confidentiality provision has a fundamental
limitation [under Penal Code section 832.8]: it applies only to files maintained by
the employing agency of the peace officer,” i.e., “written material maintained in
the peace officer’s personnel file or oral testimony that is a recitation from
material in that file.” Thus, it “does not apply to information about a peace officer
the source of which is other than the employing agency’s file maintained under the
individual’s name, even if that information is duplicated in that file.” It does not
apply to “[t]estimony of a percipient witness to events, or from documents not
maintained in the personnel file . . . even though that information may be identical
to or duplicative of information in the personnel file.” It also does not apply to
material from the appeal that is “added to the peace officer’s file maintained by the
employing agency.” The Court of Appeal thus concluded that insofar as the
Commission’s records “are not documents from a personnel file or recited from
documents in a personnel file,” they “are outside the definitional limitations
applicable to [Penal Code] section 832.7, [and] a CPRA request for those records
may not be denied under [Government Code section 6254,] subdivision (k)’s
exemption for records ‘the disclosure of which is exempted or prohibited pursuant
to’ section 832.7.”
The Court of Appeal applied “[a] similar rationale” to reject the
Commission’s reliance on Government Code section 6254, subdivision (c), which
4
exempts from disclosure “[p]ersonnel, medical, or similar files, the disclosure of
which would constitute an unwarranted invasion of privacy.” This provision, the
Court of Appeal held, applies only to information that “is within the definitional
limitation of Penal Code section 832.8,” i.e., that it be part of a “file maintained
. . . by [the officer’s] employing agency.” Thus, the Court of Appeal held that the
Commission had “erred by relying on [Government Code] section 6254,
subdivisions (c) and (k) to reject Copley’s CPRA request in its entirety.” It
ordered issuance of a writ directing the trial court to order the Commission “to
release its records in appeal Case No. 2003-0003, including the name of the peace
officer, redacted only to exclude information within the limited ambit of Penal
Code sections 832.7 and 832.8, as defined in [the court’s] opinion.”3
We granted interveners’ petition for review.
DISCUSSION
In 1968, the Legislature enacted the CPRA “for the purpose of increasing
freedom of information by giving members of the public access to information in
the possession of public agencies. [Citation.]” (Filarsky v. Superior Court (2002)
28 Cal.4th 419, 425.) This purpose is evident from the Act’s very first provision,
in which “the Legislature . . . declares that access to information concerning the
conduct of the people’s business is a fundamental and necessary right of every
person in this state.” (Gov.Code, § 6250.) To implement this purpose, the Act
provides 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.” (Gov.Code, § 6253, subd. (a).) The
3
Because the deputy sheriff withdrew the administrative appeal and settled
the matter by stipulation without an appeal hearing, the Court of Appeal declined
to decide whether the Commission may close such hearings to the public.
5
term “[p]ublic records” is broadly defined to “include[] 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.” (Gov. Code, § 6252, subd. (e).) The term “ ‘[l]ocal agency’
includes a county . . . or any board, commission or agency thereof.” (Gov. Code,
§ 6252, subd. (a).) Under these definitions, the County of San Diego, the
Commission and the San Diego County Sheriff’s Department are all local agencies
under the CPRA and the requested records all appear to qualify as public records;
the parties do not contend otherwise.4
The right of access to public records under the CPRA is not absolute. In
enacting the CPRA, the Legislature, although recognizing this right, also expressly
declared that it was “mindful of the right of individuals to privacy.” (Gov. Code,
§ 6250.) Thus, the express policy declaration at the beginning of the Act
“bespeaks legislative concern for individual privacy as well as disclosure.” (Black
Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 652 (Kehoe).) “In the spirit of
this declaration, judicial decisions interpreting the Act seek 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. [Citations.]” (American Civil
Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 447.)
“The same dual concern” for privacy and disclosure the Legislature stated
in Government Code section 6250 “appears throughout the [A]ct.” (Kehoe, supra,
42 Cal.App.3d at p. 652.) As noted above, Government Code section 6253,
subdivision (a), provides for the inspection of public records “except as hereafter
4
The Act’s definition of a “[w]riting” appears to be broad enough to include
a tape recording of a hearing. (See Gov. Code, § 6252, subd. (g) [“every . . .
means of recording upon any tangible thing any form of communication”].)
6
provided.” In the provisions that follow, the Act states a number of exemptions
that permit government agencies to refuse to disclose certain public records.
(Gov. Code, §§ 6254-6255.) “In large part, these exemptions are designed to
protect the privacy of persons whose data or documents come into governmental
possession.” (Kehoe, supra, 42 Cal.App.3d at p. 652.) A qualifying agency
refusing to disclose a public record must “justify” its decision “by demonstrating
that the record . . . is exempt under” one of the CPRA’s “express [exemption]
provisions . . . or 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.” (Gov.Code, § 6255, subd. (a).)
The CPRA exemptions the Commission relied on here are in Government
Code section 6254, subdivisions (c) and (k). We must decide whether either of
these exemptions justifies the Commission’s decision to withhold certain records
regarding the disciplinary appeal in this case.
Because the parties primarily discuss Government Code section 6254,
subdivision (k), we turn first to that exemption, which applies to “[r]ecords, the
disclosure of which is exempted or prohibited pursuant to federal or state law,
including, but not limited to, provisions of the Evidence Code relating to
privilege.” As is evident from the statutory language, this exemption “is not an
independent exemption. It merely incorporates other prohibitions established by
law. [Citations.]” (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 656.) In 1998, the
Legislature added an article to the CPRA specifically “list[ing] and describ[ing]”
over 500 statutes that provide disclosure exemptions through Government Code
section 6254, subdivision (k). (Gov. Code, § 6275; see also id., §§ 6276-6276.48.)
Among the listed statutes are “[s]ections 832.7 and 832.8, Penal Code.” (Gov.
Code, § 6276.34.)
7
In relevant part, section 832.7, subdivision (a), provides that certain
“[p]eace officer or custodial officer” records and “information obtained from these
records [] are confidential and shall not be disclosed in any criminal or civil
proceeding except by discovery pursuant to Sections 1043 and 1046 of the
Evidence Code.” The statute applies to two categories of records. The first is
“personnel records” (§ 832.7, subd. (a)), which section 832.8 defines as “any file
maintained under [an officer’s] name by his or her employing agency and
containing records relating to,” among other things, “[p]ersonal data” (§ 832.8,
subd. (a)), “[e]mployee advancement, appraisal, or discipline” (§ 832.8, subd. (d)),
and “[c]omplaints, or investigations of complaints, concerning an event or
transaction in which he or she participated . . . and pertaining to the manner in
which he or she performed his or her duties.” (§ 832.8, subd. (e).) The second
category of records to which section 832.7, subdivision (a), applies is “records
maintained by any state or local agency pursuant to [s]ection 832.5.” The latter
statute requires “[e]ach department or agency in [California] that employs peace
officers [to] establish a procedure to investigate complaints by members of the
public against the personnel of these departments or agencies . . . .” (§ 832.5,
subd. (a)(1).) It also requires that “[c]omplaints and any reports or findings
relating to these complaints . . . be retained for a period of at least five years . . .
either in the peace or custodial officer’s general personnel file or in a separate file
designated by the department or agency as provided by department or agency
policy.” (§ 832.5, subd. (b).) The “ ‘[g]eneral personnel file’ ” is “the file
maintained by the agency containing the primary records specific to each peace or
custodial officer’s employment, including evaluations, assignments, status
changes, and imposed discipline.” (§ 832.5, subd. (d)(1).)
For several reasons, Copley argues that section 832.7, subdivision (a), does
not justify the Commission’s refusal to disclose the appeal records. First, Copley
8
argues that the statute applies only to a “criminal or civil proceeding” (§ 832.7,
subd. (a)), and that the proceeding at issue here is neither; it is an “administrative”
proceeding. Second, Copley argues that the statute applies only to records “kept
by departments or agencies ‘that employ peace officers’ ” or “maintained by the
‘employing agency,’ ” and that the Commission “neither employ[s] peace officers,
nor create[s] or maintain[s] . . . [s]ection 832.5 or [s]ection 832.8 records.”
Finally, Copley argues that it has both a constitutional and common law right of
access to the records in question. For the reasons set forth below, we reject
Copley’s arguments.
A. Section 832.7 is not limited to criminal and civil proceedings.
Copley’s first argument—that section 832.7, subdivision (a), applies only to
criminal and civil proceedings—is premised on the phrase in the statute providing
that the specified information is “confidential and shall not be disclosed in any
criminal or civil proceeding except by discovery pursuant to Sections 1043 and
1046 of the Evidence Code.” In Bradshaw v. City of Los Angeles (1990) 221
Cal.App.3d 908, 916 (Bradshaw), the court opined that the word “confidential” in
this phrase “is in its context susceptible to two reasonable interpretations.” On the
one hand, because the word “is followed by the word ‘and,’ ” it could signify “a
separate, independent concept [that] makes the [specified] records privileged
material.” (Ibid.) “On the other hand,” the word could also be viewed as merely
“descriptive and prefatory to the specific legislative dictate [that immediately]
follows,” in which case it could mean that the specified records “are confidential
only in” the context of a “ ‘criminal or civil proceeding.’ ” (Ibid.) The Bradshaw
court adopted the latter interpretation, concluding that the statute affords
confidentiality only in criminal and civil proceedings, and not in “an
9
administrative hearing” involving disciplinary action against a police officer. (Id.
at p. 921.)
We reject Copley’s argument because, like every appellate court to address
the issue in a subsequently published opinion, we disagree with Bradshaw’s
conclusion that section 832.7 applies only in criminal and civil proceedings.5
When faced with a question of statutory interpretation, we look first to the
language of the statute. (People v. Murphy (2001) 25 Cal.4th 136, 142.) In
interpreting that language, we strive to give effect and significance to every word
and phrase. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476.) If, in passing
section 832.7, the Legislature had intended “only to define procedures for
disclosure in criminal and civil proceedings, it could have done so by stating that
the records ‘shall not be disclosed in any criminal or civil proceeding except by
discovery pursuant to Sections 1043 and 1046 of the Evidence Code . . . ,’ without
also designating the information ‘confidential.’ (Pen. Code, § 832.7, subd. (a).)”
(Richmond, supra, 32 Cal.App.4th at p. 1439; see also SDPOA, supra, 104
Cal.App.4th at p. 284.) Thus, by interpreting the word “confidential” (§ 832.7,
subd. (a)) as “establish[ing] a general condition of confidentiality” (Hemet, supra,
37 Cal.App.4th at p. 1427), and interpreting the phrase “shall not be disclosed in
any criminal or civil proceeding except by discovery pursuant to Sections 1043
and 1046 of the Evidence Code” (Pen. Code, § 832.7, subd. (a)) as “creat[ing] a
limited exception to the general principle of confidentiality,” we “give[] meaning
5
See Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 901-902;
SDPOA, supra, 104 Cal.App.4th at pages 281-288; Rosales v. City of Los Angeles
(2000) 82 Cal.App.4th 419, 426; City of Hemet v. Superior Court (1995) 37
Cal.App.4th 1411, 1425-1430 (Hemet); City of Richmond v. Superior Court (1995)
32 Cal.App.4th 1430, 1439-1440 (Richmond).
10
to both clauses” of the provision in question. (Hemet, supra, 37 Cal.App.4th at p.
1427.)
Other subdivisions of section 832.7 support this interpretation. (See
SDPOA, supra, 104 Cal.App.4th at p. 284.) Section 832.7, subdivision (c),
provides that “[n]otwithstanding subdivision (a), a department or agency that
employs peace or custodial officers may disseminate data regarding the number,
type, or disposition of complaints . . . made against its officers if that information
is in a form which does not identify the individuals involved.” Section 832.7,
subdivision (d), provides: “Notwithstanding subdivision (a), a department or
agency that employs peace or custodial officers may release factual information
concerning a disciplinary investigation if the officer who is the subject of the
disciplinary investigation, or the officer’s agent or representative, publicly makes a
statement he or she knows to be false concerning the investigation or the
imposition of disciplinary action. . . . Disclosure of factual information by the
employing agency pursuant to this subdivision is limited to facts contained in the
officer’s personnel file concerning the disciplinary investigation or imposition of
disciplinary action that specifically refute the false statements made public by the
peace or custodial officer or his or her agent or representative.” These provisions,
which specify circumstances under which information may be released to the
general public and the scope of information that may be released, would be
unnecessary if, as Bradshaw concluded, confidentiality under section 832.7,
subdivision (a), extends only to civil and criminal proceedings and a public agency
is free to release information to the general public under the CPRA. “Well-
established canons of statutory construction preclude a construction [that] renders
a part of a statute meaningless or inoperative.” (Manufacturers Life Ins. Co. v.
Superior Court (1995) 10 Cal.4th 257, 274; cf. McClatchy Newspapers v. Superior
Court (1988) 44 Cal.3d 1162, 1181-1182 (McClatchy) [statute authorizing grand
11
jury to release materials only to succeeding grand jury is “most compelling
indication that the Legislature has not authorized disclosure of [those] materials to
the public”].)
Finally, Bradshaw’s narrow interpretation of section 832.7 would largely
defeat the Legislature’s purpose in enacting the provision. “[T]here is little point
in protecting information from disclosure in connection with criminal and civil
proceedings if the same information can be obtained routinely under CPRA.”
(Richmond, supra, 32 Cal.App.4th at p. 1440.) Thus, “it would be unreasonable to
assume the Legislature intended to put strict limits on the discovery of police
personnel records in the context of civil and criminal discovery, and then to
broadly permit any member of the public to easily obtain those records” through
the CPRA. (SDPOA, supra, 104 Cal.App.4th at p. 284.) “Section 832.7’s
protection would be wholly illusory unless [we read] that statute . . . to establish
confidentiality status for [the specified] records” beyond criminal and civil
proceedings. (SDPOA, supra, at p. 284.) We cannot conclude the Legislature
intended to enable third parties, by invoking the CPRA, so easily to circumvent
the privacy protection granted under section 832.7.6 We therefore reject Copley’s
argument that section 832.7 does not apply beyond criminal and civil proceedings,
and we disapprove Bradshaw v. City of Los Angeles, supra, 221 Cal.App.3d 908 to
the extent it is inconsistent with this conclusion.
6
Nor can we conclude the Legislature intended to grant the general public
greater access to this information than it granted litigants in civil and criminal
proceedings, which would be the result of adopting Bradshaw’s conclusion.
12
B. Commission records of disciplinary appeals, including the officer’s
name, are protected under section 832.7.
As noted above, Copley asserts that the Commission’s records are not
protected under section 832.7, subdivision (a), because they are neither “personnel
records” nor “records maintained by any state or local agency pursuant to Section
832.5.” (§ 832.7, subd. (a).) For the reasons set forth below, we disagree.
Copley’s view that the Commission’s records do not qualify under section
832.7, subdivision (a), as “personnel records,” which the Court of Appeal
adopted,7 is premised on section 832.8. As noted above, that section provides that
“[a]s used in [s]ection 832.7, ‘personnel records’ means any file maintained under
[an officer’s] name by his or her employing agency and containing records relating
to” specified matters, including “discipline” and “[c]omplaints, or investigations
of complaints, concerning an event or transaction in which [the officer]
participated . . . and pertaining to the manner in which he or she performed his or
her duties.” (§ 832.8, subds. (d) & (e).) Copley asserts that the Commission’s
records do not meet this definition because the Commission does not “employ
peace officers” and, therefore, the file it maintains regarding a peace officer’s
disciplinary appeal is not a file “maintained . . . by [the officer’s] employing
agency.” (§ 832.8.)
Copley’s argument fails to take into account the nature of the Commission
and its role in disciplinary proceedings for peace officers in San Diego County.
Government Code section 3304, subdivision (b), which is part of the Public Safety
Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.) (POBRA),
prohibits a “public agency” from taking “punitive action . . . against any
7
The Court of Appeal did not expressly state that the Commission’s records
do not qualify as records maintained by the employing agency. However, that
conclusion is implicit in the court’s analysis and conclusion.
13
[nonprobationary] public safety officer . . . without providing the public safety
officer with an opportunity for administrative appeal.” We have explained that
this provision sets forth one of the “basic rights” that “must be accorded individual
public safety officers by the public agencies which employ them.” (White v.
County of Sacramento (1982) 31 Cal.3d 676, 679 (White), italics added; see also
Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 569
[POBRA “sets forth the basic rights that law enforcement agencies must provide
to their peace officer employees”]; Baggett v. Gates (1982) 32 Cal.3d 128, 138
[statute “require[s] the city to provide peace officers ‘an opportunity for
administrative appeal’ ”].) As described by our Courts of Appeal, the “purpose”
of this provision is, in part, to give a peace officer “an opportunity . . . ‘to convince
the employing agency to reverse its decision’ ” to take punitive action. (Binkley v.
City of Long Beach (1993) 16 Cal.App.4th 1795, 1806 (Binkley), italics added,
quoting Browning v. Block (1985) 175 Cal.App.3d 423, 430; see also Riveros v.
City of Los Angeles (1996) 41 Cal.App.4th 1342, 1359 [appeal under Gov. Code,
§ 3304, gives peace officer “a chance to . . . try to convince his employer to
reverse its decision”].)
In San Diego County, this statutory duty is satisfied by offering peace
officers administrative appeals through the Commission, which is established by
the San Diego County Charter (Charter) as a department of the County. (Charter,
§§ 106, 903.) The Charter designates the Commission as “the administrative
appeals body for the County in personnel matters authorized by this Charter.”
(Charter, § 904.1) This “appellate authority includes appeals from actions
involving [¶] discipline of classified employees with permanent status” and
“charges filed by a citizen against a person in the classified status.” (Id., § 904.2.)
The Charter authorizes the Commission to “affirm, revoke or modify any
disciplinary order, and . . . make any appropriate orders in connection with appeals
14
under its jurisdiction,” and specifies that “[t]he Commission’s decisions shall be
final, and shall be followed by the County unless overturned by the courts on
appeal.” (Id., § 904.1) Because the Commission, a department of the County, has
been designated to provide the appeal that the officer’s employer is required by
law to provide in connection with taking punitive action, it is reasonable to
conclude that for purposes of applying the relevant statutes in this case, the
Commission is functioning as part of “the employing agency” and that any file it
maintains regarding a peace officer’s disciplinary appeal constitutes a file
“maintained . . . by [the officer’s] employing agency” within the meaning of
section 832.8.
The operative statutory language viewed in the context of the entire
statutory scheme supports this conclusion. Although the relevant statutes do not
define the term “employing agency” for purposes of applying section 832.8,
section 832.5 offers assistance in determining the term’s scope. As noted above,
section 832.5 addresses “complaints by members of the public against the
personnel of” any California “department or agency . . . that employs peace
officers.” (§ 832.5, subd. (a)(1).) As also noted above, it requires that
“[c]omplaints and any reports or findings relating to these complaints . . . be
retained for a period of at least five years . . . either in the peace or custodial
officer’s general personnel file or in a separate file designated by the department
or agency as provided by department or agency policy.” (§ 832.5, subd. (b).) As
especially relevant here, the statute provides that complaints “determined by the
peace . . . officer’s employing agency to be frivolous . . . or unfounded or
exonerated . . . shall not be maintained in that officer’s general personnel file”
(§ 832.5, subd. (c), italics added), and “shall be removed from” that file “prior to
any official determination regarding promotion, transfer, or disciplinary action.”
(§ 832.5, subd. (b).) The Legislature passed these provisions to “ ‘ensure that
15
[peace officers] are not penalized by false charges languishing in their personnel
files.’ ” (Assem. Off. of Research, 3d reading analysis of Assem. Bill No. 3434
(1995-1996 Reg. Sess.) as amended May 14, 1996, p. 2.) Under Copley’s
interpretation, this protection would not be triggered by a Commission
determination on appeal that a complaint is frivolous, unfounded, or exonerated,
because the Commission, although the County department designated to provide
the final, statutorily required step in the administrative disciplinary process, is not
the “employing agency.” (§ 832.5, subd. (c).) This interpretation would be
neither reasonable nor consistent with the Legislature’s intent. Thus, reasonably
understood, the term “employing agency” as used in section 832.5, subdivision
(c), includes the Commission insofar as it hears disciplinary appeals. Under
settled principles of statutory interpretation, it is appropriate to give that term the
same meaning in applying section 832.8.8 (See Walker v. Superior Court (1988)
47 Cal.3d 112, 132 [“Identical language appearing in separate provisions dealing
with the same subject matter should be accorded the same interpretation.”];
8
The dissent, which would adopt Copley’s construction, errs in suggesting
that our analysis rests on “speculation that a law enforcement agency would (or
could) disregard the Commission’s decision on appeal.” (Dis. opn., post, at p. 7.)
Like the dissent, we presume that a County law enforcement agency would abide
by an unappealed decision of the Commission, as the Charter requires. (Charter,
§ 904.1.) However, under the dissent’s view that the Commission is not acting as
part of the employing agency, the fact that a law enforcement agency abides by a
Commission decision does not transform that decision into a “determin[ation] by
the peace . . . officer’s employing agency . . . .” (§ 832.5, subd. (c).) Thus, under
the plain language of the relevant statute, the law enforcement agency would not
be required to remove from officers’ personnel files complaints the Commission
finds to be frivolous, unfounded, or exonerated, and could abide by the
Commission’s decision without doing so. Whether a local agency would choose
to remove such complaints is a separate question. Thus, the dissent’s construction
would strip many peace officers of the assurance and protection the Legislature
sought to guarantee.
16
County of Placer v. Aetna Cas. etc. Co. (1958) 50 Cal.2d 182, 188-189 [“statutes
relating to the same subject matter are to be construed together and harmonized if
possible”].)
In arguing for a contrary interpretation, Copley unpersuasively cites Civil
Service Com. v. Superior Court (1984) 163 Cal.App.3d 70 (CSC). Specifically,
Copley relies on that decision’s characterization of the Commission “as a ‘quasi-
independent’ county agency.” (Id. at p. 77.) However, “the term ‘quasi’ is used in
legal phraseology ‘to indicate that one subject resembles another . . . in certain
characteristics, but that there are intrinsic and material differences between them.
[Citation.]” (In re McNeill (Bankr. E.D.N.Y. 1996) 193 B.R. 654, 661.) In other
words, it “presupposes both resemblance and difference.” (Wiseman v. Calvert
(W.Va. 1950) 59 S.E.2d 445, 454, italics added.) Thus, CSC’s characterization of
the Commission as a “ ‘quasi-independent’ county agency” (CSC, supra, at p. 77)
does not establish that the Commission is an independent body for all purposes.9
(Cf. People v. Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430, 438-439
[grand jury enjoys “full independence of action,” but is “ ‘part of the court by
which it is convened’ ” and “ ‘under the control of the court’ ”]; Johnson v.
Fontana County F.P. Dist. (1940) 15 Cal.2d 380, 391 [“ ‘ “generally a political
subdivision and the officers, boards, commissions, agents and representatives
thereof form but a single entity” ’ ”].) The CSC court made this characterization
in determining whether county counsel, in advising the Commission, had “an
9
As already noted, under the County Charter, the Commission is a
department of the County. (Charter, §§ 106, 903.) Moreover, each member is
appointed by the County’s Board of Supervisors (Charter, § 903) and “may be
removed by a majority vote of the Board if the Board serves the Commissioner
[with] a written statement containing the reasons for removal, records the
statement in its minutes, and allows the commissioner an opportunity to be heard
publicly.” (Id., §903.2.)
17
attorney-client relationship” with the Commission “separate and distinct from
county counsel’s fundamental relationship with the County,” such that county
counsel could not represent the county in the county’s lawsuit against the
Commission. (CSC, supra, at p. 77.) Thus, the considerations that informed that
court’s decision were far different from the considerations at issue here in
determining whether the file of an administrative disciplinary appeal provided by a
peace officer’s employer through the Commission is a “file maintained . . . by [the
officer’s] employing agency” within the meaning of section 832.8. Given these
differences, Copley’s reliance on CSC is unavailing. 10
For several reasons, Copley’s argument that the Commission’s records
cannot qualify as “records maintained by any state or local agency pursuant to
[s]ection 832.5” (§ 832.7, subd. (a)) also fails.11 Copley asserts that only records
10
At oral argument, Copley asserted that both Government Code section 3304
and the Charter require administrative appeals to be conducted by a “neutral
factfinder,” and that it is “illogical” to characterize the Commission as both neutral
and, at the same time, part of the employing agency. Without commenting on the
former assertion, we note that the latter is inconsistent with California case law.
(See Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155, 178-179 (Brown)
[regulation requiring that hearing officer for administrative disciplinary appeal be
selected from members of police department satisfies due process]; Hongsathavij
v. Queens of Angels Etc. Medical Center (1998) 62 Cal.App.4th 1123, 1142
[medical center’s board of directors is “impartial adjudicator” for administrative
appeal notwithstanding that its administrator “initiated” physician’s suspension
and its “risk management staff prosecuted the action”]; Stanton v. City of West
Sacramento (1991) 226 Cal.App.3d 1438, 1443 (Stanton) [police chief hearing
administrative appeal of discipline imposed by another officer is “ ‘ “a reasonably
impartial, noninvolved reviewer” ’ ”]; Doyle v. City of Chino (1981) 117
Cal.App.3d 673, 681-682 [city council hearing police chief’s administrative appeal
of termination decision made by city manager “ ‘was an impartial body’ ”].)
11
As noted above, section 832.5 deals with “complaints by members of the
public against” peace officers. (§ 832.5, subd. (a)(1).) The record does not
disclose whether this case involves such a complaint. As explained, the result
would be the same in any event.
18
kept by departments or agencies that employ peace officers are “maintained . . .
pursuant to [s]ection 832.5” (§ 832.7, subd. (a)), and that the Commission’s
records do not meet this criterion because the Commission does not employ peace
officers. However, the preceding analysis regarding sections 832.7 and 832.8 also
supports the conclusion that for purposes of applying section 832.5, the
Commission, in hearing disciplinary appeals, is functioning as part of a
department or agency that employs peace officers and that any records it maintains
regarding such appeals are being maintained by such a department or agency.
In any event, the statutory language does not support Copley’s assertion
(which the dissent erroneously repeats (dis. opn., post, at p. 5)), that only records
kept by departments or agencies that employ peace officers are “maintained . . .
pursuant to [s]ection 832.5.” (§ 832.7, subd. (a).) Section 832.5 requires “[e]ach
[California] department or agency . . . that employs peace officers [to] establish a
procedure to investigate complaints by members of the public against the
personnel of these departments or agencies” (§ 832.5, subd. (a)(1)) and directs that
“[c]omplaints [by members of the public] and any reports or findings relating to
these complaints shall be retained for a period of at least five years.” (Id., subd.
(b).) It does not, however, specify the entity that must maintain these records.
Moreover, it does expressly specify that “complaints retained pursuant to [the
statute] may be maintained . . . in a separate file designated by the department or
agency . . . . ” (Ibid.) In light of these provisions, it is reasonable to conclude that
because the Commission has been designated to hear disciplinary appeals, its
records qualify under section 832.7, subdivision (a), as “records maintained by any
state or local agency pursuant to Section 832.5.”12 (See San Francisco Police
12
Contrary to the dissent’s assertion, the meaning of the phrase
“maintained . . . by [the officer’s] employing agency” in section 832.8 is not,
(footnote continued on next page)
19
Officers’ Assn. v. Superior Court (1988) 202 Cal.App.3d 183, 190 (SFPOA) [“the
Legislature, in mandating the establishment of appropriate mechanisms for the
investigation of citizens’ complaints, has relegated the format and operating
procedures to the authority of each local agency, so long as the complaints and
related findings are kept confidential and maintained for a minimum period of five
years”].)
To the extent this examination of the statutory language leaves uncertainty,
it is appropriate to consider “the consequences that will flow from a particular
interpretation. [Citation.]” (Harris v. Capital Growth Investors XIV (1991) 52
Cal.3d 1142, 1165 (Harris).) Where more than one statutory construction is
arguably possible, our “policy has long been to favor the construction that leads to
the more reasonable result. [Citation.]” (Webster v. Superior Court (1988) 46
Cal.3d 338, 343.) This policy derives largely from the presumption that the
Legislature intends reasonable results consistent with its apparent purpose.
(Harris, supra, at pp. 1165-1166.) Thus, our task is to select the construction that
comports most closely with the Legislature’s apparent intent, with a view to
promoting rather than defeating the statutes’ general purpose, and to avoid a
construction that would lead to unreasonable, impractical, or arbitrary results.
(People v. Jenkins (1995) 10 Cal.4th 234, 246; People v. Simon (1995) 9 Cal.4th
493, 517; Fields v. Eu (1976) 18 Cal.3d 322, 328.) We will not adopt “[a] narrow
(footnote continued from previous page)
either alone or in context, so “plain” (dis. opn., post, at p. 6) as to exclude records
maintained by a County department that has been designated to hear appeals that
the County must, by law, provide. Nor does the dissent identify any language in
section 832.5 that has that “plain meaning.” (Dis. opn., post, at p. 6.) On the
contrary, the dissent’s view of section 832.5 is based on what it finds “apparent”
from the language of the section’s various subdivisions “[c]onsider[ed] . . .
together.” (Dis. opn., post, at p. 5.)
20
or restricted meaning” of statutory language “if it would result in an evasion of the
evident purpose of [a statute], when a permissible, but broader, meaning would
prevent the evasion and carry out that purpose.” (In re Reineger (1920) 184 Cal.
97, 103.)
Regarding these considerations, it is significant that under Copley’s
interpretation, the extent of confidentiality available to peace officers would turn
on several fortuities: the entity hearing an appeal and the timing of the request.
As to the former, although the law requires a “public agency” to provide
nonprobationary peace officers with “an opportunity for administrative appeal” in
connection with taking “punitive action” (Gov. Code, § 3304, subd. (b)), it also
expressly gives “local public agenc[ies]” discretion to determine “rules and
procedures” for these “administrative appeal[s].”13 (Id., § 3304.5; see Binkley,
supra, 16 Cal.App.4th at p. 1806 [“details” of required appeal “are left to be
formulated by the local agency”].) In San Diego County, this statutory discretion
has been exercised by designating the Commission to hear administrative appeals.
However, other local agencies at various times have designated individuals within
the law enforcement department to hear such appeals. (See Brown, supra, 102
Cal.App.4th at p. 173 [“a member of the Department of the rank of captain
through deputy chief”]; Riveros v. City of Los Angeles, supra, 41 Cal.App.4th at
pp. 1358-1361 [hearing officer was captain in the department, with chief retaining
final decision]; Stanton, supra, 226 Cal.App.3d at p. 1440 [“ ‘Chief of Police’ ”];
Holcomb v. City of Los Angeles (1989) 210 Cal.App.3d 1560, 1562 [“board of
rights” consisting of “two watch commanders and one captain from the LAPD”].)
Under Copley’s interpretation, the record of the officer’s appeal in this case is
13
Of course, discretion must be exercised consistent with any constitutional
and statutory limitations. (Cf. SFPOA, supra, 202 Cal.App.3d at p. 190.)
21
unprotected only because in San Diego County, the Commission has been
designated to hear the administrative appeal the law requires the officer’s
employer to provide; if the officer worked in a jurisdiction where administrative
appeals are heard within the law enforcement agency, then the records of that
appeal would be protected. (Cf. SFPOA, supra, 202 Cal.App.3d at p. 191[tape
recording of hearing before office of citizen complaints is a “confidential
record[] . . . disclosure of which is expressly governed by the statutory scheme”].)
As for timing, Copley’s interpretation would yield inconsistent results
regarding disclosure of identical records, depending on when the disclosure
request is made. As noted above, section 832.5, subdivision (b), requires that
“[c]omplaints [by members of the public against peace officers] and any reports or
findings relating to these complaints . . . be retained for a period of at least five
years.” If, as Copley contends, the Commission’s records are not “maintained . . .
pursuant to [s]ection 832.5” within the meaning of section 832.7, subdivision (a),
then the Commission’s retention of its own reports and findings would not satisfy
the requirements of section 832.5 and the employing agency or department itself
would be required by law to retain copies of those reports and findings in its own
files for at least five years. The copies of the Commission’s reports and findings
in the employing agency’s files would, under the express language of section
832.7, subdivision (a), be “records maintained . . . pursuant to [s]ection 832.5” and
would be “confidential.” However, because those same reports and findings in the
Commission’s own files would not be “maintained . . . pursuant to [s]ection
832.5” (§ 832.7, subd. (a)), they would not be confidential and would have to be
disclosed unless they were destroyed before filing of a disclosure request (or some
22
other CPRA exception applied).14 Thus, under Copley’s interpretation, disclosure
would depend, fortuitously, on whether a disclosure request is made to the
Commission before or after it destroys its records.15
14
Under Copley’s interpretation, because the Commission’s records are not
“maintained . . . pursuant to [s]ection 832.5” (§ 832.7, subd. (a)), the five-year
retention requirement of section 832.5, subdivision (b), would not apply to them.
Thus, nothing would prevent the Commission from destroying its records
immediately after completing an appeal.
15
The dissent’s assertion that under its construction, copies of Commission
reports and findings kept by the sheriff’s department would not be confidential
(dis. opn., post, at pp. 9-10), is inconsistent with the plain language of section
832.5, subdivision (b), which requires that “any reports or findings relating to”
citizen complaints be retained for at least five years, and of section 832.7,
subdivision (a), which specifies that “records maintained by any state agency
pursuant to [s]ection 832.5 . . . are confidential . . . .” It is also inconsistent with
our decision in Williams v. Superior Court (1993) 5 Cal.4th 337, on which the
dissent erroneously relies. (Dis. opn., post, at pp. 9-10.) There, in construing the
CPRA exception for certain “investigatory or security files” (Gov. Code, § 6254,
subd. (f)), we explained that “nonexempt materials”—i.e., those “not on their face
exempt from disclosure” under the CPRA—“nevertheless become exempt through
inclusion in an investigatory file. [Citations.]” (Williams, supra, at pp. 354-355.)
Thus, contrary to the dissent’s analysis, Williams actually supports the view that
an agency may refuse to disclose an otherwise “disclosable document” that it has
properly “plac[ed]” in a file that is protected from disclosure. (Dis. opn., post, at
p. 10.) Therefore, if, as the dissent argues, the Commission’s files are not
confidential under Penal Code section 832.7 because they are not maintained by
the employing agency pursuant to Penal Code section 832.5, then copies of the
Commission’s reports and findings nevertheless become confidential when, as
section 832.5, subdivision (b) requires, they are properly placed in the employing
agency’s files.
As the dissent observes (dis. opn., post, at p. 10), we also explained in
Williams that a public agency cannot make the CPRA exemption for investigatory
files applicable to a particular record “simply by placing it in a file labeled
‘investigatory’ ” (Williams, supra, at p. 355); the file can properly be called
investigatory only if the “prospect of enforcement proceedings” is “concrete and
definite,” and the record in question must “properly belong in the file” because it
“relate[s] to the investigation.” (Id. at p. 362.) Contrary to the dissent’s analysis,
(footnote continued on next page)
23
Given these consequences, we cannot say that adopting Copley’s
interpretation would produce reasonable results that most closely comport with the
Legislature’s apparent intent. The statutes disclose a legislative intent both to
require retention of “any reports or findings” generated as part of an agency’s
procedure for investigating citizen complaints against peace officers (§ 832.5,
subd. (b), italics added) and to make records “maintained by any state or local
agency pursuant to” this requirement “confidential.” (§ 832.7, subd. (a), italics
added; see SFPOA, supra, 202 Cal.App.3d at p. 190 [statutes “evidence[]”
legislative “purpose to provide retention of relevant records while imposing
limitations upon their discovery and dissemination”].) Copley’s interpretation
(footnote continued from previous page)
this discussion is completely consistent with the view that copies of Commission
reports and findings that the employing agency is properly maintaining as required
by section 832.5, subdivision (b), are confidential under section 832.7, subdivision
(a).
The
dissent’s
reliance
on
New York Times Co. v. Superior Court (1997) 52
Cal.App.4th 97 (New York Times), is similarly misplaced. There, a news agency
filed a CPRA request, not for disclosure of records, but for information: the
names of deputy sheriffs who fired weapons during an incident. (Id. at p. 99.)
The sheriff’s department argued that the information was protected from
disclosure by the CPRA exemption for “personnel . . . files.” (Gov. Code, § 6254,
subd. (c).) The court disagreed, explaining that although the information could be
found, among other places, in the officers’ personnel files, it could “be readily
provided . . . without disclosure of any portion of the deputies’ personnel files.”
(New York Times, supra, 52 Cal.App.4th at pp. 103-104, fn. omitted.) The court
reasoned that the names of the officers, which was “otherwise . . . unrestricted
information,” did not become exempt from disclosure merely by being “plac[ed]
into a personnel file . . . .” (Id. at p. 103.) This reasoning, even if correct, has no
application here, because section 832.7, subdivision (a), protects both the specified
records and “information obtained from [those] records.” Nor does New York
Times stand for the proposition that records within a public agency’s possession
lose protection to which they are otherwise entitled merely because they were, at
some time, available from some other source.
24
produces results inconsistent with this intent, by stripping the Commission’s
reports and findings of confidentiality, at least so long as the Commission retains
copies of them. Nothing in the legislative history suggests a legislative intent to
create the confidentiality exception Copley asserts.
Moreover, it is doubtful the Legislature intended to make the extent of
confidentiality available to a peace officer turn on whether he or she works in a
jurisdiction where responsibility for administrative appeals has been assigned to
someone outside the law enforcement department. In enacting section 832.7, the
Legislature did not directly give a local agency discretion to release records of
disciplinary appeals. Thus, although a particular local agency might have good
reasons for wanting to grant public access to disciplinary records regarding peace
officers, in jurisdictions where all aspects of disciplinary matters and citizen
complaints—including appeals—are handled within the law enforcement
department, the statutes do not give the employing agency discretion to disclose
disciplinary records without consent of the involved peace officer. It is unlikely
the Legislature, in declining to confer this discretion directly, nevertheless
intended to allow an officer’s employer to exercise such discretion indirectly, by
designating someone outside the agency to hear these matters.16 Of course, some
jurisdictions may assign responsibility for such matters to persons outside the
agency for reasons unrelated to—and without considering the implications for—
public disclosure. Again, it is unlikely the Legislature, which went to great effort
to ensure that records of such matters would be confidential and subject to
16
Logically, Copley’s interpretation would not apply only to records of an
administrative appeal. Under Copley’s analysis, records relating to any part of a
disciplinary matter handled outside the law enforcement department would not be
confidential within the meaning of section 832.7.
25
disclosure under very limited circumstances, intended that such protection would
be lost as an inadvertent or incidental consequence of a local agency’s decision,
for reasons unrelated to public disclosure, to designate someone outside the
agency to hear such matters. Nor is it likely the Legislature intended to make loss
of confidentiality a factor that influences this decision.
Having reviewed the statutory language and the legislative history, we find
no evidence the Legislature intended that one officer’s privacy rights would be
less protected than another’s simply because his or her employer, for whatever
reason, conducts administrative appeals using an entity like the Commission. In
enacting section 832.7, the Legislature appears to have made a statewide decision
regarding confidentiality of such records, and has expressly specified the
circumstances where a local agency “may”—i.e., has discretion to—release very
limited information from those records. (§ 832.7, subds. (c), (d).) Nothing
suggests the Legislature intended to leave it up to local departments and agencies,
through the mechanism chosen for handling these matters, to determine—either
intentionally or by accident—how much, if any, protection to afford peace
officers. Nor does Copley even attempt to explain why the considerations that led
the Legislature to enact Penal Code section 832.7, and later expressly to recognize
this statute as a CPRA exception (Gov. Code, § 6276.34), apply differently
depending on whether a disciplinary matter is handled inside or outside the law
enforcement agency.17 In a prior case involving records made confidential by
section 832.7, we explained that “[p]eace officers’ privacy interests do not vary
17
To the extent differences exist, there may be more justification for public
disclosure where the matter is heard entirely within the law enforcement agency
than where the appeal is heard by an entity like the Commission. Arguably, in the
latter context, the public has more reason to trust the objectivity of the
decisionmaker and, consequently, less need for disclosure.
26
with the age of the accused who seeks personnel records.” (City of San Jose v.
Superior Court (1993) 5 Cal.4th 47, 54.) Nor do those interests vary with the
relationship of the person hearing an administrative appeal to a peace officer’s
employer.18
Adopting Copley’s interpretation would also significantly impact a peace
officer’s right of administrative appeal under Government Code section 3304,
subdivision (b). As noted above, that right is one of the “basic rights” a public
employer must provide peace officers under the POBRA. (White, supra, 31
Cal.3d at p. 679.) Adopting Copley’s interpretation would create a strong
disincentive to exercising this basic statutory right in jurisdictions where appeals
are heard by persons outside the law enforcement department. In such
jurisdictions, in order to exercise this right, peace officers would have to give up
much of their right of confidentiality under Penal Code section 832.7, subdivision
(a). Thus, Copley’s interpretation presents peace officers with a Hobson’s choice
between their right of confidentiality under Penal Code section 832.7 and their
right of administrative appeal under Government Code section 3304.19 There is
18
We do not, as the dissent asserts, “assume[]” that “the level of
confidentiality” available “must be the same” for all peace officers. (Dis. opn.,
post, at p. 8, italics added.) Rather, we note the disparity that exists under the
dissent’s construction because, as explained, it is relevant in determining the
Legislature’s intent, which is “the objective of statutory interpretation . . . .”
(People v. Flores (2003) 30 Cal.4th 1059, 1063.) We also do not, as the dissent
suggests, believe that a local agency’s desire to provide more public disclosure
would be “unreasonable.” (Dis. opn., post, at p. 9.) We simply find—and the
dissent offers—no evidence suggesting that the Legislature, which has precluded
local agencies from implementing this desire directly, intended to permit them to
do so indirectly, by designating an entity like the Commission to hear disciplinary
appeals.
19
A Hobson’s choice is defined as, among other things, “the necessity of
accepting one of two or more equally objectionable things.” (Webster’s 3d New
Internat. Dict. (2002) p. 1076, col. 1.) In this sense, the dissent’s construction, by
(footnote continued on next page)
27
no evidence the Legislature intended to give local agencies discretion to force
peace officers to make such a choice. Nor is there evidence the Legislature
intended that the basic statutory right of administrative appeal would effectively
be less available in some jurisdictions than in others. (Cf. Seattle Times Co. v.
Rhinehart (1984) 467 U.S. 20, 36, fn. 22 [noting that individuals may “ ‘forgo the
pursuit of their just claims’ ” to avoid “ ‘unwanted publicity,’ ” causing
“ ‘frustration of [a valuable] right’ ”].) On the contrary, such a conclusion would
be inconsistent with the Legislature’s express declaration that a peace officer’s
rights under the POBRA—including the right of appeal—are “a matter of
statewide concern” and must be available “to all public safety officers, . . .
wherever situated within the State of California.” (Gov. Code, § 3301, italics
added.) Citing this declaration, we have explained that statutory constructions
making the opportunity for administrative appeal “more widely available”
“accord[] with the express purpose of the [POBRA].” (White, supra, 31 Cal.3d at
p. 683.) Thus, from the perspective of both statutory language and practical
consequences, Copley’s narrow interpretation is not the more reasonable one, and
would not produce reasonable results that most closely comport with the
Legislature’s apparent intent.20
(footnote continued from previous page)
forcing certain peace officers to give up either their right of appeal or their right of
confidentiality, surely presents them with a Hobson’s choice. The dissent errs in
suggesting that our construction limits the options of peace officers who want their
appeals heard by bodies “drawn from outside [their] immediate chain of
command.” (Dis. opn., post, at p. 11.) Nothing in our opinion precludes peace
officers from choosing such an appellate body if a local agency offers one.
20
According to the dissent, under its construction, a peace officer who must
choose between the right of appeal and the right of confidentiality is the same as
any civil litigant seeking to vindicate legal rights in court. (Dis. opn., post, at pp.
10-11.) This assertion, even if correct, is beside the point. By statute, the
(footnote continued on next page)
28
Insofar as the Court of Appeal specifically addressed disclosure of the
deputy’s identity, it erred in finding that this information is not confidential under
section 832.7. This conclusion derives largely from section 832.7, subdivision (c),
which permits, “[n]otwithstanding subdivision (a)” of section 832.7, a department
or agency that employs peace officers to disclose certain data regarding
complaints against officers, but only “if that information is in a form which does
not identify the individuals involved.” The language limiting the information that
may be disclosed under this exception demonstrates that section 832.7, subdivision
(a), is designed to protect, among other things, “the identity of officers” subject to
complaints. (Richmond, supra, 32 Cal.App.4th at p. 1440, fn. 3; cf. Daily Journal
Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1129 (Daily Journal) [provision
prohibiting disclosure of information that would identify grand jury witnesses
(footnote continued from previous page)
Legislature has expressly provided peace officers with both rights, and the
question here is whether the Legislature intended to make officers choose between
those rights only if they happen to work for an agency that, for whatever reason,
has designated a body like the Commission to hear appeals. Nothing suggests that
such unequal treatment of peace officers would be consistent with the
Legislature’s intent.
The dissent errs in asserting that Government Code section 3304.5
evidences a legislative intent to allow such unequal treatment. (Dis. opn., post, at
pp. 11-12). That section, which provides that “administrative appeal[s] . . . shall
be conducted in conformance with rules and procedures adopted by” local public
agencies (Gov. Code, § 3304.5), does not authorize public agencies to adopt rules
or procedures that abrogate the confidentiality legislatively established in Penal
Code section 832.7. (Cf. Colmenares v. Braemar Country Club, Inc. (2003) 29
Cal.4th 1019, 1029 [agencies may not adopt regulations that are inconsistent with
statutes]; SFPOA, supra, 202 Cal.App.3d at p. 190.) Were that the case, even in a
jurisdiction where disciplinary appeals are handled within the law enforcement
department, nothing would prevent the local agency from providing disclosure
notwithstanding Penal Code section 832.7. Even the dissent apparently would not
go so far.
29
“reaffirms the general legislative concern to safeguard grand jury secrecy”].) The
legislative history of this provision confirms the Legislature’s intent to “prohibit
any information identifying the individuals involved from being released, in an
effort to protect the personal rights of both citizens and officers.” (Assem. Com.
on Public Safety, Republican Analysis of Assem. Bill No. 2222 (1989-1990 Reg.
Sess.) Sept. 2, 1989, p. 2; see also Assem. Com. on Ways & Means, Analysis of
Assem. Bill No. 2222 (1989-1990 Reg. Sess.) as amended May 17, 1989
[exception allows release of summary data “as long as the information does not
identify the officers involved”].) Given the statutory language and the legislative
history, the Court of Appeal erred in ordering disclosure of the name of the deputy
involved in this case.
In reaching this conclusion, we reject Copley’s reliance on New York
Times, supra, 52 Cal.App.4th 97. There, through a CPRA request, a news
organization sought the names of deputy sheriffs who fired weapons during a
criminal incident. (Id. at p. 100.) The county sheriff, who determined this
information during an internal investigation of the incident, agreed to provide the
names of all deputies who were present at the crime scene, but refused to identify
the particular officers who fired their weapons. (Id. at pp. 99-100.) The court
ordered disclosure of the information, holding in relevant part that it was not
confidential under section 832.7. (New York Times, supra, at pp. 101-104.)
Without any analysis, the court broadly declared that “[u]nder . . . sections 832.7
and 832.8, an individual’s name is not exempt from disclosure.” (New York
Times, supra, at p. 101.) As the preceding discussion of the statutory language
and legislative history demonstrates, the court’s unsupported assertion is simply
incorrect, at least insofar as it applies to disciplinary matters like the one at issue
here. Thus, we disapprove New York Times Co. v. Superior Court, supra, 52
30
Cal.App.4th 97, to the extent it is inconsistent with the preceding discussion, and
we reject Copley’s reliance on that decision.
Finally, Copley’s appeal to policy considerations is unpersuasive. Copley
insists that “public scrutiny of disciplined officers is vital to prevent the arbitrary
exercise of official power by those who oversee law enforcement and to foster
public confidence in the system, especially given the widespread concern about
America’s serious police misconduct problems.” There are, of course, competing
policy considerations that may favor confidentiality, such as protecting
complainants and witnesses against recrimination or retaliation, protecting peace
officers from publication of frivolous or unwarranted charges, and maintaining
confidence in law enforcement agencies by avoiding premature disclosure of
groundless claims of police misconduct. (Cf. McClatchy, supra, 44 Cal.3d at pp.
1173-1178 [discussing reasons for confidentiality in grand jury proceedings];
Gubler v. Commission on Judicial Performance (1984) 37 Cal.3d 27, 60
[discussing judicial disciplinary matters].) In enacting and amending sections
832.5, 832.7, and 832.8, the Legislature, though presented with arguments similar
to Copley’s, made the policy decision “that the desirability of confidentiality in
police personnel matters does outweigh the public interest in openness.”21
21
The American Civil Liberties Union opposed the 1978 legislation that
enacted sections 832.7 and 832.8 and amended section 832.5, arguing that the
statutes would “seal[] . . . off” records regarding complaints against peace officers
“forever.” (Legis. Advocate Brent Barnhart, American Civil Liberties Union,
letter to Sen. Dennis Carpenter, Mar. 30, 1978, re Sen. Bill No. 1436 (1977-78
Reg. Sess.).) The California Attorneys for Criminal Justice opposed a 2000
amendment to section 832.7, arguing that it was “bad public policy” because it
would “allow peace officers to avoid accountability for their misconduct.” (Legis.
Advocate Wendy Taylor, Cal. Attorneys for Criminal Justice, letter to Assem.
Member Dennis Cardoza, May 11, 2000, re Assem. Bill No. 2559 (1999-2000
Reg. Sess.).) The California Public Defenders Association opposed amendments
(footnote continued on next page)
31
(Hemet, supra, 37 Cal.App.4th at p. 1428, fn. 18.) Copley fails to explain why the
considerations underlying the Legislature’s policy decision apply differently,
depending on whether a part of a disciplinary matter that the officer’s employer
must, by statute, provide is handled inside or outside the law enforcement
department itself. In any event, it is for the Legislature to weigh the competing
policy considerations. As one Court of Appeal has explained in rejecting a similar
policy argument: “[O]ur decision . . . cannot be based on such generalized public
policy notions. As a judicial body, . . . our role [is] to interpret the laws as they are
written.”22 (SDPOA, supra, 104 Cal.App.4th at p. 287.)
(footnote continued from previous page)
in 2002 to sections 832.5 and 832.7 that extended confidentiality to custodial
officers, arguing that “greater public exposure affords greater protection to the
public, by insuring greater accountability.” (Sen. Com. on Public Safety, Analysis
of Assem. Bill No. 2040 (2001-02 Reg. Sess.) as amended May 13, 2002, p. 10.)
22
We thus agree with the dissent that “it is for the Legislature . . . to make the
policy decision” regarding confidentiality. (Dis. opn., post, at p. 13.) The dissent
errs, however, in asserting that by adopting the construction we find to be
reasonable, we are improperly “impos[ing]” our “own view of” what public policy
should be. (Id. at p. 14.) Our decisions have long recognized that a court’s
“overriding purpose” in construing a statute is “to give the statute a reasonable
construction conforming to [the Legislature’s] intent [citation], keeping in mind
that ‘the meaning of the enactment may not be determined from a single word or
sentence; the words must be construed in context, and provisions relating to the
same subject matter must be harmonized to the extent possible’ [citation].”
(Massey v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 674, 681, italics added.)
Indeed, the dissent’s criticism—and its overall analytical approach—are
inconsistent with an opinion the dissent’s author wrote for a majority of this court
just last year. In In re Reeves (2005) 35 Cal.4th 765, after finding “ambiguities” in
“seemingly plain [statutory] language” (id., at p. 770), the majority “search[ed] for
a reasonable construction” of the statute at issue, explaining that “[w]hen a statute
is capable of more than one construction, ‘ “[w]e must . . . give the provision a
reasonable and commonsense interpretation consistent with the apparent purpose
and intention of the lawmakers, practical rather than technical in nature, which
upon application will result in wise policy rather than mischief or absurdity.” ’
(footnote continued on next page)
32
C. Common law and constitutional considerations do not support
Copley’s interpretation.
As noted above, Copley argues in part that it has both a common law and
constitutional right of access to the records in question. Copley’s constitutional
argument amounts to a claim that section 832.7 is unconstitutional insofar as it
permits nondisclosure of the records in question. For the reasons stated below, we
reject these arguments.23
Copley’s common law argument fails under well-established principles. As
we have explained, “[t]he common law is only one of the forms of law and is no
more sacred than any other. . . . [I]t may be changed at the will of the
[L]egislature, unless prevented by constitutional limitations.” (People v. Hickman
(1928) 204 Cal. 470, 479.) Thus, “we may consider common law practices . . .
only if they are not superseded by or in conflict with constitutional or statutory
provisions. [Citation.]” (People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d
(footnote continued from previous page)
[Citations.]” (Id. at p. 771 & fn. 9, italics added.) Our analysis, unlike the
dissent’s, is completely consistent with this approach.
23
Copley made these arguments in its petition for writ of mandate, but the
Court of Appeal did not address them in its opinion. Copley did not bring this
omission to the Court of Appeal’s attention by filing a petition for rehearing,
notwithstanding the court’s holding that some of the requested records are
confidential under section 832.7 and are not subject to disclosure under the CPRA.
Nor did Copley file either a petition for review in this court or an answer to
interveners’ petition for review, which did not mention common law or
constitutional issues and raised only the statutory question of whether “the identity
of a disciplined officer and appeal records regarding that disciplinary action,
requested from a Civil Service Commission” should “be provided pursuant to a
request under” the CPRA. Under these circumstances, we could properly decline
to decide these issues. (See Barratt American, Inc. v. City of Rancho Cucamonga
(2005) 37 Cal.4th 685, 700, fn. 3.) However, the parties have briefed the issues,
and we will address them “in order to lay to rest any doubts about the [statute’s]
constitutionality.” (People v. Hansel (1992) 1 Cal.4th 1211, 1219.)
33
150, 157.) Indeed, the only California authority Copley cites in support of its
argument recognizes that the common law right to inspect public records does not
apply where “a specific exception makes specific records nonpublic. [Citation.]”
(Estate of Hearst (1977) 67 Cal.App.3d 777, 782.) Here, as explained above, the
Legislature has enacted a specific statute that makes the records in question
“confidential.” (Pen. Code, § 832.7, subd. (a); see also Gov. Code, §§ 6275,
6276, 6276.34 [Pen. Code, § 832.7 constitutes CPRA exemption pursuant to Gov.
Code section 6254, subd. (k)].) Given this statute, the common law, even if it is as
Copley asserts, does not govern this case.24
Copley’s argument under the California Constitution fails for a similar
reason. Copley relies on article I, section 3, subdivision (b)(1), of the California
Constitution, which provides: “The people have the right of access to information
concerning the conduct of the People’s business, and, therefore, the meetings of
public bodies and the writings of public officials and agencies shall be open to
public scrutiny.” However, subdivision (b)(3) of the same section provides in
relevant part that “[n]othing in this subdivision . . . affects the construction of any
statute . . . to the extent that it protects th[e] right to privacy” guaranteed by article
I, section 1 of the California Constitution, “including any statutory procedures
governing discovery or disclosure of information concerning the official
24
Copley also cites Nixon v. Warner Communications, Inc. (1977) 435 U.S.
589. There, the high court “assume[d], arguendo,” that “the common-law right of
[public] access” applied to the judicial records at issue in that case, and therefore
declined “to delineate precisely the contours of” that right. (Id. at p. 599.)
Notably, the high court held that disclosure of the records in question was
controlled, not by the common law, but by “statutory standards” enacted by the
United States Congress. (Id. at p. 607, italics added.) That holding supports our
conclusion that section 832.7, not the common law, controls the disclosure request
in this case.
34
performance or professional qualifications of a peace officer.” (Cal. Const., art. I,
§ 3, subd. (b)(3).) One of Penal Code section 832.7’s purposes is “to protect the
right of privacy of peace officers.” (71 Ops.Cal.Atty.Gen. 247, 249 (1988); see
also People v. Mooc (2001) 26 Cal.4th 1216, 1227 [§ 832.7 is part of “statutory
scheme” enacted “to protect” peace officers’ “interest in privacy to the fullest
extent possible”].) Thus, under the express language of the state Constitution, the
constitutional provision Copley cites does not “affect the construction” of Penal
Code section 832.7, subdivision (a). (Cal. Const., art. I, § 3, subd. (b)(3).)
Copley’s argument under the First Amendment to the United States
Constitution, which applies to the states through the Fourteenth Amendment
(Keenan v. Superior Court (2002) 27 Cal.4th 413, 416), is inconsistent with
binding high court authority. In Los Angeles Police Dept. v. United Reporting
Publishing Corp. (1999) 528 U.S. 32, 37 (United Reporting), the high court
rejected a First Amendment challenge to Government Code section 6254,
subdivision (f)(3), which is a CPRA provision authorizing nondisclosure of
address information regarding arrestees and crime victims unless the requester
declares under penalty of perjury that the request is being made for one of five
purposes and that the information will not be used directly or indirectly to sell a
product or service. The majority opinion in United Reporting, written by Chief
Justice Rehnquist for seven justices, explained: “This is not a case in which the
government is prohibiting a speaker from conveying information that the speaker
already possesses. [Citation.] . . . For purposes of assessing the propriety of a
facial invalidation, what we have before us is nothing more than a governmental
denial of access to information in its possession. California could decide not to
give out arrestee information at all without violating the First Amendment.
[Citation.]” (United Reporting, supra, at p. 40, italics added, fn. omitted.) The
two remaining justices expressly endorsed this aspect of the majority opinion,
35
although they dissented on other grounds. (Id. at p. 45 (dis. opn. of Stevens, J.).)
Thus, in United Reporting, the high court unanimously held that California could,
without violating the First Amendment, decide to withhold the information
altogether.
Notably, in reaching its conclusion, the majority in United Reporting cited
Houchins v. KQED, Inc. (1978) 438 U.S. 1, 14 (Houchins). (United Reporting,
supra, 528 U.S. at p. 40.) In Houchins, the high court reversed an injunction
prohibiting the Sheriff of Alameda County from denying members of the news
media access to jail facilities, finding that the First Amendment does not guarantee
such access. (Houchins, supra, 438 U.S. at pp. 7-16 (lead opn. of Burger, C.J.).)
On the page cited in United Reporting, Chief Justice Burger, representing a
majority of the justices deciding the case, explained: “There is no discernible
basis for a constitutional duty to disclose, or for standards governing disclosure of
or access to information. Because the Constitution affords no guidelines, absent
statutory standards, hundreds of judges would, under the Court of Appeals’
approach, be at large to fashion ad hoc standards, in individual cases, according to
their own ideas of what seems ‘desirable’ or ‘expedient.’ We, therefore, reject the
Court of Appeals’ conclusory assertion that the public and the media have a First
Amendment right to government information regarding the conditions of jails and
their inmates and presumably all other public facilities such as hospitals and
mental institutions. [¶] ‘There is no constitutional right to have access to
particular government information, or to require openness from the bureaucracy.
[Citation.] The public’s interest in knowing about its government is protected by
the guarantee of a Free Press, but the protection is indirect. The Constitution itself
36
is neither a Freedom of Information Act nor an Official Secrets
Act.’ [Citation.]”25 (Id. at p. 14.)
Under our constitutional system of government, “a statute, once duly
enacted, ‘is presumed to be constitutional.’ ” (Lockyer v. City and County of San
Francisco (2004) 33 Cal.4th 1055, 1086.) Unconstitutionality must be clearly,
positively, and certainly shown by the party attacking the statute, and we resolve
doubts in favor of the statute’s validity. (Ibid; Metropolitan Co. v. Brownell
(1935) 294 U.S. 580, 584; In re York (1995) 9 Cal.4th 1133, 1152; San Francisco
v. Industrial Acc. Com. (1920) 183 Cal. 273, 279-280.) In light of United
Reporting and Houchins, Copley cannot meet its burden of showing that section
832.7 is unconstitutional insofar as it permits nondisclosure of the records in
question.
Notably, in making its argument, Copley completely fails to mention these
high court decisions. Instead, it relies on a line of high court cases finding a
qualified First Amendment right of public access to various parts of a criminal
proceeding. (Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1 [transcript
of preliminary hearing]; Press-Enterprise Co. v. Superior Court of Cal. (1984) 464
25
Only seven justices participated in Houchins. Justice White and then-
Justice Rehnquist joined Chief Justice Burger’s lead opinion. Justice Stewart
wrote a separate opinion concurring in the judgment and stating: “The First and
Fourteenth Amendments do not guarantee the public a right of access to
information generated or controlled by government, nor do they guarantee the
press any basic right of access superior to that of the public generally. The
Constitution does no more than assure the public and the press equal access once
the government has opened its doors. Accordingly, I agree substantially with what
the opinion of The Chief Justice has to say on that score.” (Houchins, supra, 438
U.S. at p. 16, fn. omitted (conc. opn. of Stewart, J.).) Justice Stevens wrote a
dissenting opinion, which Justice Brennan and Justice Powell joined. Justice
Marshall and Justice Blackmun did not participate in the case.
37
U.S. 501 [voir dire]; Waller v. Georgia (1984) 467 U.S. 39 [hearing on motion to
suppress]; Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596 [trial
examination of victim of specified sexual offense]; Richmond Newspapers, Inc. v.
Virginia (1980) 448 U.S. 555 [criminal trial].) Copley also relies on NBC
Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 (NBC
Subsidiary), and Detroit Free Press v. Ashcroft (6th Cir. 2002) 303 F.3d 681
(Detroit Free Press). In the former, we extended the high court’s line of authority
involving access to criminal proceedings to the civil context, finding a qualified
“First Amendment . . . right of access to ordinary civil trials and proceedings.”
(NBC Subsidiary, supra, at p. 1212.) In the latter, the federal Sixth Circuit Court
of Appeals extended the same line of authority to the administrative context,
finding a qualified “First Amendment right of access to deportation hearings.”
(Detroit Free Press, supra, at p. 705.)
Copley’s reliance on these cases is unpersuasive. As we noted in NBC
Subsidiary, all of the high court cases Copley cites arose in the criminal context,
and the high court has not expressly extended its First Amendment right-of-access
jurisprudence in those cases to any other context. (NBC Subsidiary, supra, 20
Cal.4th at pp. 1207, 1209; see also Tennessee v. Lane (2004) 541 U.S. 509, 523
[“we have recognized that members of the public have a right of access to criminal
proceedings secured by the First Amendment”].) Although we so extended that
jurisprudence in NBC Subsidiary, we expressly limited the extension “to ordinary
civil proceedings in general,” and stressed that we were not addressing “any right
of access to particular proceedings governed by specific statutes.” (Id. at p. 1212,
fn. 30, italics added.) Moreover, after acknowledging the validity of concern that
a constitutional right of access, “ ‘if not subjected to practical limitations, would
theoretically warrant permitting the public to sit and contemporaneously
eavesdrop upon everything their government does,’ ” we explained that this
38
concern “has been accounted for in decisions that have been careful not to extend
the public’s right of access beyond the adjudicative proceedings and filed
documents of trial and appellate courts.”26 (NBC Subsidiary, at p. 1212, italics
added, fn. omitted.)
Only a few months later, the high court issued just such a decision, holding
unanimously in United Reporting that California could, without violating the First
Amendment, refuse to provide public access to information regarding arrestees
and crime victims. (United Reporting, supra, 528 U.S. at p. 40.) Notably, in
reaching its conclusion, the majority opinion did not even cite the court’s earlier
cases finding a qualified First Amendment right of access to criminal proceedings,
and did not apply the analytical framework set forth in those earlier cases. Nor
were those earlier cases or their analytical framework mentioned in any of the
separate opinions, all of which agreed that California could constitutionally refuse
to disclose the information in question. (United Reporting, supra, 528 U.S. at pp.
41-42 (conc. opn. of Scalia, J.); id. at pp. 42-44 (conc. opn. of Ginsburg, J.); id. at
pp. 44-48 (dis. opn. of Stevens, J.).) Lower courts have subsequently applied
United Reporting in finding no First Amendment right of access to administrative
26
Civil service commissions, “while they may be invested with mixed
powers, including, among others, the power to act judicially in a matter before
them, are not courts. At best, they are, in the exercise of that power, proceeding as
quasi judicial bodies, something quite distinct from courts, and in no manner do
they constitute inferior courts, as that term is used in the [state] constitution.”
(Chinn v. Superior Court (1909) 156 Cal. 478, 482; see also Swars v. Council of
City of Vallejo (1949) 33 Cal.2d 867, 873-874 [in hearing police officer’s appeal
of dismissal order, civil service commission was not “a ‘court of justice’ within
meaning of” statute providing that sittings of every court of justice shall be
public]; cf. McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d
512, 520-521 [rejecting judge’s constitutional due process claim to open hearing,
reasoning that proceedings before Commission on Judicial Qualifications “are
neither criminal nor before a ‘court of justice’ ”].)
39
records. (Center for National Security Studies v. U.S. Dept. of Justice (D.C. Cir.
2003) 331 F.3d 918, 935 [no First Amendment right of access to government
records regarding persons detained after terrorist attacks]; Amelkin v. McClure
(6th Cir. 2000) 205 F.3d 293, 296 [no First Amendment right of access to police
accident reports]; Spottsville v. Barnes (N.D.Ga. 2001) 135 F.Supp.2d 1316, 1318-
1323 [same]; see also In re Boston Herald, Inc. (1st Cir. 2003) 321 F.3d 174, 180
[“constitutional . . . right[] of access ha[s] applied only to judicial documents”].)
In light of the above, Copley’s reliance on NBC Subsidiary and the high court
cases involving criminal proceedings is unavailing.
For several reasons, Copley’s reliance on Detroit Free Press is also
unpersuasive. First, the only question the court decided there was whether the
First Amendment guaranteed public access to a deportation hearing, and the court
expressly declined to express an opinion on whether the First Amendment
guarantees public access to transcripts and documents from completed hearings.
(Detroit Free Press, supra, 303 F.3d at p. 684, fn. 4.) Thus, Detroit Free Press
has little to say regarding the question before us: whether Copley has a First
Amendment right of public access to records of the Commission.27 Second,
Detroit Free Press failed even to mention United Reporting, which was decided
only three years earlier and which directly addressed the question of First
Amendment access to nonjudicial government records. Finally, Detroit Free
Press incorrectly discounted Houchins as a “plurality opinion” that “was neither
accepted nor rejected by a majority of the Court” and that “the Court ha[d] since
moved away from . . . .” (Detroit Free Press, supra, 303 F.3d at pp. 694-695.) In
27
We express no opinion regarding whether Copley has a constitutional right
to attend Commission appeal hearings. As the Court of Appeal explained, the
facts of this case do not present that question. (See ante, fn. 3.)
40
making this statement, the court in Detroit Free Press failed to appreciate that
because Justice Stewart’s concurring opinion in Houchins agreed with what the
lead opinion said regarding an alleged First Amendment “right of access to
information generated or controlled by government” (Houchins, supra, 438 U.S. at
p. 16 (conc. opn. of Stewart, J.)), “a four-member majority” held in Houchins “that
the First Amendment [does not] guarantee[] public access to sources of
information under government control.” (San Jose Mercury-News v. Municipal
Court (1982) 30 Cal.3d 498, 503, fn. omitted.) The court in Detroit Free Press
also failed to realize that in 1999, seven high court justices in United Reporting
expressly reaffirmed Houchins’s vitality by citing it in holding that California
could, without violating the First Amendment, deny all public access to
information in police records about arrestees and crime victims (United Reporting,
supra, 528 U.S. at p. 40), and that even the two dissenting justices in United
Reporting agreed with the majority’s holding on this issue. (Id. at p. 45 (dis. opn.
of Stevens, J.).) For these reasons, Detroit Free Press is of little assistance here.28
Thus, under United Reporting and Houchins, we reject Copley’s First Amendment
claim.29
28
We also note that several courts have disagreed with and criticized Detroit
Free Press. (Center for National Security Studies v. U.S. Dept. of Justice, supra,
331 F.3d at p. 932 [no First Amendment right of access to government records
regarding persons detained after terrorist attacks]; North Jersey Media Group, Inc.
v. Ashcroft (3d Cir. 2002) 308 F.3d 198, 201, 204-205 [no First Amendment right
to attend deportation hearings].)
29
In light of our conclusion under Penal Code section 832.7 and Government
Code section 6254, subdivision (k), we need not decide whether the information
requested here is also protected under Government Code section 6254, subdivision
(c).
41
CONCLUSION
The judgment of the Court of Appeal is reversed and the matter is
remanded for further proceedings consistent with this opinion.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
MORENO, J.
CORRIGAN, J.
42
DISSENTING OPINION BY WERDEGAR, J.
We consider in this case the interest of the public, here represented by a
major San Diego daily newspaper, in full disclosure of the records of a San Diego
County Sheriff’s deputy’s administrative appeal of departmental discipline. We
also consider the extent of the deputy’s right to keep his personnel matters private
and out of the public eye. The majority correctly recognizes we must interpret the
applicable statutory language in the California Public Records Act (CPRA) (Gov.
Code, § 6250 et seq.), and its incorporation of the limitations on disclosure set
forth in Penal Code section 832.7, with the goal of implementing the Legislature’s
intent. Faithful adherence to the plain meaning of these statutory provisions will
ensure that the ultimate result in this case is consistent with the balance struck by
the Legislature regarding the relative importance of disclosing the secret inner
workings of the government, on the one hand, and maintaining the individual
privacy of the officer, on the other.
Because the majority misconstrues the applicable statutes, it incorrectly
holds that every aspect of the deputy’s administrative appeal should remain secret,
including even the deputy’s name. By so doing, the majority overvalues the
deputy’s interest in privacy, undervalues the public’s interest in disclosure, and
ultimately fails to implement the Legislature’s careful balance of the competing
concerns in this area. Accordingly, I dissent.
1
I
As the majority explains, The Copley Press, Inc. (Copley Press), publisher
of the San Diego Union-Tribune newspaper, sought disclosure from the County of
San Diego Civil Service Commission (the Commission) of certain documents
related to the Commission’s hearing on a deputy sheriff’s appeal from his
department’s proposed discipline of him. In seeking such disclosure, Copley Press
relied on the CPRA, which “was enacted in 1968 to safeguard the accountability
of government to the public, for secrecy is antithetical to a democratic system of
‘government of the people, by the people [and] for the people.’ The Act ‘was
enacted against a “background of legislative impatience with secrecy in
government . . . .” (53 Ops.Cal.Atty.Gen. 136, 143 (1970).)’ ” (San Gabriel
Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 771-772.) As this court
has explained: “Implicit in the democratic process is the notion that government
should be accountable for its actions. In order to verify accountability, individuals
must have access to government files. Such access permits checks against the
arbitrary exercise of official power and secrecy in the political process. However,
a narrower but no less important interest is the privacy of individuals whose
personal affairs are recorded in government files.” (CBS, Inc. v. Block (1986) 42
Cal.3d 646, 651, fns. omitted; see also Gov. Code, § 6250 [Legislature’s
declaration in enacting the CPRA that access to government information “is a
fundamental and necessary right”].)
Although the CPRA begins with the general rule of openness and
disclosure of government information, it exempts from disclosure 29 categories of
2
materials.1 (Gov. Code, § 6254.) “These exemptions are permissive, not
mandatory. The [CPRA] endows the agency with discretionary authority to
override the statutory exceptions when a dominating public interest favors
disclosure.” (CBS, Inc. v. Block, supra, 42 Cal.3d at p. 652.) If an agency denies
a request for disclosure under the CPRA, it must justify its denial by showing the
CPRA expressly exempts the record in question from disclosure. (Gov. Code,
§ 6255, subd. (a).)
In denying Copley Press’s claim for disclosure under the CPRA, the
Commission cited two statutory provisions, but (like the majority) I need discuss
only one, Government Code section 6254, subdivision (k) (section 6254(k)).2
That statute provides in relevant part: “[N]othing in this chapter shall be
construed to require disclosure of records that are any of the following: [¶] . . .
[¶] (k) Records, the disclosure of which is exempted or prohibited pursuant to
1
As one court describes it: “The objectives of the Public Records Act thus
include preservation of islands of privacy upon the broad seas of enforced
disclosure.” (Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 653.)
2
The Commission relied also on Government Code section 6254,
subdivision (c), which provides in pertinent part: “[N]othing in this chapter shall
be construed to require disclosure of records that are any of the following: [¶] . . .
[¶] (c) Personnel, medical, or similar files, the disclosure of which would
constitute an unwarranted invasion of personal privacy.” The bulk of the
Commission’s records, however, do not fall under the terms of this provision.
With the exception of the deputy’s actual personnel file and information obtained
from that file (see Pen. Code, § 832.7, subd. (a)), the statutory exception from
disclosure set forth in section 6254, subdivision (c) provides no basis on which to
withhold the Commission’s records from Copley Press.
Although Copley Press also claims a constitutional right to disclosure of the
Commission’s records, I would not reach the constitutional issue inasmuch as I
would find disclosure is required under the CPRA. (See People v. Brown (2003)
31 Cal.4th 518, 534 [courts should decline to reach constitutional questions if a
statutory claim is dispositive].)
3
federal or state law . . . .” This subdivision “is not an independent exemption”
(CBS, Inc. v. Block, supra, 42 Cal.3d at p. 656), but incorporates other statutes that
protect against disclosure. In this case, real parties in interest allege section
6254(k) incorporates Penal Code section 832.7, which renders confidential two
types of law enforcement records, prohibiting their disclosure “in any criminal or
civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the
Evidence Code.”3 (Pen. Code, § 832.7, subd. (a).) The first type are “[p]eace
officer or custodial officer personnel records” or information obtained from such
records. (Ibid.) Such personnel records, in turn, are defined in Penal Code section
832.8 as “any file maintained under that individual’s name by his or her employing
agency . . . .” (Italics added.) Thus, the first category of material made
confidential by Penal Code section 832.7 is expressly limited to personnel records
maintained by the officer’s employing agency or department.
The second type of law enforcement records made confidential by Penal
Code section 832.7 (and thus protected from disclosure by Government Code
section 6254(k)) are “records [or information obtained from such records]
maintained by any state or local agency pursuant to Section 832.5” (Pen. Code,
§ 832.7, subd. (a), italics added), i.e., records relating to citizen complaints.
Subdivision (a)(1) of Penal Code section 832.5 states that “[e]ach department or
agency in this state that employs peace officers” must “establish a procedure to
investigate complaints by members of the public” against their personnel. (Italics
added.) Subdivision (b) requires that such complaints and any related reports be
retained for at least five years either in the officer’s “general personnel file or in a
3
I agree with the majority that this language does not preclude application of
Penal Code section 832.7 to administrative proceedings, as here. (Maj. opn., ante,
at pp. 9-12.)
4
separate file designated by the department or agency,” provided that “prior to any
official determination regarding promotion, transfer, or disciplinary action,”
complaints described in subdivision (c) must be “removed from the officer’s
general personnel file and placed in [a] separate file designated by the department
or agency.” Subdivision (c) provides that complaints or any portion of a
complaint the officer’s “employing agency” (italics added) finds to be “frivolous,
. . . unfounded or exonerated” must not be maintained in the officer’s general
personnel file. Finally, subdivision (d)(1) defines “ ‘[g]eneral personnel file’ ” as
“the file maintained by the agency” containing the officer’s employment records.
Considering the subdivisions of Penal Code section 832.5 together, it is
apparent the Legislature used the terms “agency” and “department” to refer to the
public entity that employs the officer involved. Thus, files deemed confidential
under Penal Code section 832.7’s second category of material, like its first, are
limited to those maintained by the peace officer’s employing agency or
department. This agency may be a city police department (employing a police
officer), a county sheriff’s department (employing a deputy sheriff) or the
Department of Corrections and Rehabilitation (employing a correctional officer).
The law applicable to this case is not unlike a set of nesting dolls, in which
one law fits within another. We begin with the general rule of disclosure of
government records (the CPRA), move to a possible exception to the general rule
(Gov. Code, § 6254(k)), which in turn incorporates a law establishing the
confidentiality of certain law enforcement records (Pen. Code, § 832.7), which
specifically renders confidential only peace officer personnel records as defined by
Penal Code section 832.8, and records maintained by any state or local agency as
defined by Penal Code section 832.5, both of which are limited to files maintained
by the officer’s employing agency. It is in these final definitions, located deep
within this network of self-referential statutory provisions, that the majority
5
purports to strike gold. Declaring that because the Commission has been
designated to provide administrative appeals for employees of the San Diego
County Sheriff’s Department, the majority opines “it is reasonable to conclude that
for purposes of applying the relevant statutes in this case, the Commission is
functioning as part of ‘the employing agency’ and that any file it maintains
regarding a peace officer’s disciplinary appeal constitutes a file ‘maintained . . . by
[the officer’s] employing agency’ within the meaning of section 832.8.” (Maj.
opn., ante, at p. 15, italics added.)
What the majority has found is fool’s gold. No amount of judicial juggling
or legal legerdemain can convert a county’s civil service commission into the
agency that employs the county’s law enforcement officers. Certainly no evidence
appears in the record—and the majority cites none—showing that the Commission
has ever accepted a job application from this deputy; conducted a background
check or hired him; issued a paycheck to him; contacted him about his medical,
dental or retirement benefits; had the power to promote or demote him; or had any
say over his day-to-day assignments. That the deputy was employed by the San
Diego County Sheriff’s Department, not the Commission, is plain.
Even accepting as accurate the majority’s characterization—dubious at
best—of how the Commission is “functioning,” Penal Code section 832.7 does not
sweep within its embrace all entities that merely function or act as part of the
employing agency; it requires that the files be maintained by the entity that
actually is the employing agency. (See Pen. Code, § 832.8 [file maintained “by
his or her employing agency”]; id., § 832.5, subd. (a)(1) [referring to “[e]ach
department or agency in this state that employs peace officers”].) In concluding
otherwise, the majority strays far from the plain meaning of the applicable
statutory language.
6
The majority posits that if the Commission is not the employing agency, a
citizen complaint the Commission finds frivolous or unfounded need not be
removed but can remain in the deputy’s file, a result the majority finds
unreasonable. (Maj. opn., ante, at p. 16.) This concern is baseless. Where, as
here, a county civil service commission is designated to hear appeals in peace
officer disciplinary cases, the officer’s employing agency must abide by the
commission’s decision. “ ‘The Commission’s decisions shall be final, and shall be
followed by the County unless overturned by the courts on appeal.’ ” (Civil
Service Com. v. Superior Court (1984) 163 Cal.App.3d 70, 77.) Thus, for
example, had the Commission here found the complaint against the deputy to be
frivolous, the sheriff’s department, absent an appeal, presumably would in all
respects adopt and abide by that decision. The contrary conclusion—that the
department would retain the complaint in the deputy’s personnel file on the ground
that it was the Commission, and not the department, that had found the complaint
frivolous or unfounded—seems farfetched. Certainly nothing the majority says
supports the speculation that a law enforcement agency would (or could) disregard
the Commission’s decision on appeal.
Taking a somewhat different tack, the majority concludes that the
Commission’s own records qualify as records “maintained . . . pursuant to Section
832.5” (Pen. Code, § 832.7, subd. (a)) and thus are confidential under the statutory
scheme. The majority reasons that because Penal Code section 832.5, requiring
the retention for at least five years of citizen complaints and any related reports or
findings, does not specify the entity that must maintain these records and “does
expressly specify that ‘complaints retained pursuant to [the statute] may be
maintained . . . in a separate file designated by the department or agency’ ” (maj.
opn., ante, at p. 19), “it is reasonable to conclude that because the Commission has
been designated to hear disciplinary appeals, its records qualify under section
7
832.7, subdivision (a), as ‘records maintained by any state or local agency
pursuant to Section 832.5’ ” (ibid.). But the absence of any evidence or
suggestion in the record that the sheriff’s department has in fact designated the
Commission to retain a file of complaints for five years, as required by section
832.5, subdivision (b), wholly undermines the majority’s analysis on this point.
The majority next argues its conclusion the Commission employs the
deputy sheriff must be correct, because a contrary conclusion would render the
scope of confidentiality available to peace officers dependent “on several
fortuities: the entity hearing an appeal and the timing of the request.” (Maj. opn.,
ante, at p. 21.) Neither rationale is persuasive.
Because a law enforcement agency has discretion to decide the mechanism
for administrative review of disciplinary matters (Gov. Code, § 3304.5), different
agencies likely will choose different mechanisms. The majority erroneously
assumes—with no support from legal authority or legislative history—that
regardless of the review mechanism chosen (or, as here, imposed on the agency),
the level of confidentiality attaching to the record of a peace officer’s appeal of
proposed discipline must be the same. (Maj. opn., ante, at pp. 21-22.) But no
such “equality” principle is apparent in the statutory scheme, nor is the possibility
of different levels of mandatory disclosure under the CPRA contrary thereto. By
limiting the exception to the CPRA to personnel files maintained by the
“employing agency,” the Legislature left open the possibility that law
enforcement-related files maintained by other public agencies would be subject to
disclosure under the CPRA.
A law enforcement agency may have any number of reasons to provide for
independent commission—rather than in-house—review of police disciplinary
matters, with its attendant greater public scrutiny. Community concerns about
police brutality, oversight imposed by the city counsel or county board of
8
supervisors, a charter mandate (as here), the size of the department (does it have
several hundred officers or just two?), negotiated outcomes between a department
and the union representing the rank-and-file, all these factors can no doubt play a
part in the choice of an independent commission to provide administrative review.
That an option exists to provide less disclosure to the public does not logically
preclude an option providing for greater openness in government. The majority
fails to explain why a law enforcement agency’s or local government’s choice to
use an administrative review mechanism that involves more disclosure to the
community is unreasonable.
The majority also contends that if the Commission is not considered the
deputy’s employing agency, the level of disclosure would turn arbitrarily on the
timing of any request to disclose. Thus, according to the majority, if only the
sheriff’s department is the deputy’s employer, only the sheriff’s department would
be statutorily required to maintain the record of his disciplinary appeal. (Pen.
Code, § 832.5, subd. (b).) In that case, disclosure could be had from the
Commission under the CPRA; but if the Commission destroyed its records before
the request, the copy of the record in the sheriff’s department’s possession would
acquire confidentiality as a “personnel record” maintained pursuant to Penal Code
section 832.5, precluding its disclosure. (Maj. opn., ante, at pp. 22-23.)
The majority is incorrect. If the Commission’s record of the appeal is
subject to disclosure under the CPRA, the sheriff’s department could not shield it
from disclosure by placing it in the deputy’s personnel file. Williams v. Superior
Court (1993) 5 Cal.4th 337 is instructive. There we addressed the exception to
CPRA disclosure set forth in Government Code section 6254, subdivision (f),
concerning law enforcement investigatory files. The parties in Williams disputed
whether the information in such files would remain confidential after the
investigation ended. This court concluded the exception applied even after the
9
investigation ended, but also stated that “the law does not provide[] that a public
agency may shield a record from public disclosure, regardless of its nature, simply
by placing it in a file labelled ‘investigatory.’ ” (Williams v. Superior Court, at
p. 355.) Similarly, the Court of Appeal in New York Times Co. v. Superior Court
(1997) 52 Cal.App.4th 97, 103, commenting on that possibility, opined: “The
labels of ‘personnel records’ and ‘internal investigation’ are captivatingly
expansive, and present an elasticity menacing to the principle of public scrutiny of
government. A public servant may not avoid such scrutiny by placing into a
personnel file what would otherwise be unrestricted information. A conclusion to
the contrary would weaken and despoil the Public Records Act.” Because a law
enforcement agency cannot avoid the mandate of the CPRA by placing a
disclosable document into a peace officer’s personnel file, the level of
confidentiality does not turn on the timing of the disclosure request.
Finally, the majority reasons that failure to adopt the fiction that the
Commission is the deputy’s employing agency would “significantly impact a
peace officer’s right of administrative appeal,” presenting deputies with a
“[h]obson’s choice” of vindicating their rights on appeal or retaining the
confidentiality of their personnel records. (Maj. opn., ante, at p. 27.) A hobson’s
choice is defined as either “an apparent freedom to take or reject something
offered when in actual fact no such freedom exists” (Webster’s 3d New Internat.
Dict. (2002) p. 1076, col. 1) or “the necessity of accepting one of two equally
objectionable things” (ibid.). As to the first definition, a peace officer facing
disciplinary charges has a viable choice: he may appeal to the Commission, in
which case the proceedings before the Commission (but not his actual personnel
file) will be disclosable under the CPRA, or he can decline to appeal, accept his
discipline and keep everything secret. The officer’s situation is no different than
that of any civil litigant who, in order to vindicate legal rights in court, must
10
submit to pretrial discovery and endure a public trial. That a choice may come
freighted with some disadvantages does not render it illusory. As for the second
definition, even if these choices as the majority suggests are “equally
objectionable” to the officer, the majority does not explain why a peace officer
facing discipline is entitled to pursue an administrative appeal free from
uncomfortable choices. Guarding the confidentiality of the deputy’s actual
personnel file, maintained by the sheriff’s department, but allowing for the
disclosure of other information having an origin outside that file, hardly places a
burden on a deputy’s administrative right to appeal so intolerable and
objectionable that we may conclude the Legislature could not have intended that
result. So far as we know, a peace officer may be desirous of having his appeal
heard by an independent body, one drawn from outside his immediate chain of
command. Although the majority states “[t]here is no evidence the Legislature
intended to give local agencies discretion to force peace officers to make” a choice
between appeal and disclosure (maj. opn., ante, at pp. 27-28), there likewise is no
evidence the Legislature intended to preclude such discretion. Indeed, because
Government Code section 3304.5 leaves the “precise details” of an officer’s right
to administrative appeal4 to be determined by individual local law enforcement
agencies (Caloca v. County of San Diego (2002) 102 Cal.App.4th 433, 443),
equally likely is that the Legislature intended to give such agencies the discretion
to require more disclosure on appeal, so long as the review procedures established,
4
Government Code section 3304, subdivision (b) provides: “No punitive
action, nor denial of promotion on grounds other than merit, shall be undertaken
by any public agency against any public safety officer who has successfully
completed the probationary period that may be required by his or her employing
agency without providing the public safety officer with an opportunity for
administrative appeal.”
11
as here, do not violate any express provision of the statutory scheme set forth in
Penal Code sections 832.5, 832.7, 832.8, or in the CPRA.
II
No doubt San Diego County chose the Commission to hear peace officer
appeals for a specific reason. The Commission is “a ‘quasi-independent’ county
agency. In contrast to most county agencies, which are directly supervised by the
board of supervisors [citation], the Commission’s unique review function demands
an independence which is specifically provided for in section 904.1 of the San
Diego County Charter (as amended Dec. 17, 1982): ‘The Commission is the
administrative appeals body for the County in personnel matters authorized by this
Charter. Upon appeal, the Commission may affirm, revoke or modify any
disciplinary order, and may make any appropriate orders in connection with
appeals under its jurisdiction. The Commission’s decisions shall be final, and
shall be followed by the County unless overturned by the courts on appeal.’ ”
(Civil Service Com. v. Superior Court, supra, 163 Cal.App.3d at p. 77, italics
omitted.)5
Because the Commission does not employ the deputy being disciplined in
this case, its records are presumptively open under the CPRA. Only to the extent
qualifying records maintained by the deputy’s employer—the San Diego County
Sheriff’s Department—or information obtained from those records (Pen. Code,
§ 832.7, subd. (a)) are introduced in the appeal hearing would the Commission’s
5
That Civil Service Com. v. Superior Court, supra, 163 Cal.App.3d 70, does
not establish the Commission’s independence “for all purposes” (maj. opn., ante,
at p. 17), as the majority opines, does not of course mean the Commission lacks
independence for any purpose. Significantly, the majority identifies no reason San
Diego County would designate the Commission to hear disciplinary appeals, other
than the Commission’s independence.
12
records remain confidential under Government Code section 6254(k) and Penal
Code section 832.7. Even information presented to the Commission that is
duplicated in the officer’s file would not necessarily be rendered confidential by
section 6254(k) (incorporating Pen. Code, § 832.7) if it had a source independent
from the personnel file itself. Only if the information is “obtained from” that file
(Pen. Code, § 832.7), as would be the case if the file were read into evidence,
would the exception to disclosure apply. For example, the name of an officer and
the nature of his alleged misconduct may be derived from testimony before the
Commission by the complaining witness herself or from other eyewitnesses to the
alleged misconduct. As the Court of Appeal below observed: “Testimony of a
percipient witness to events, or from documents not maintained in the personnel
file, is not information subject to section 832.7 even though that information may
be identical to or duplicative of information in the personnel file.” On the other
hand, investigative information in the file that does not come out at the hearing
remains confidential.
Contrary to the majority’s assertions, unlike In re Reeves (2005) 35 Cal.4th
765, cited by the majority (maj. opn., ante, at pp. 32-33, fn. 22), reference in the
statutory scheme to the officer’s “employing agency” is not ambiguous. By
ignoring the actual language of the CPRA and Penal Code sections 832.5, 832.7
and 832.8, the majority unjustifiably enlarges the confidentiality of law
enforcement personnel files and concomitantly reduces the amount of information
disclosable to the public under the CPRA regarding how our law enforcement
officers are performing their duties. Although the majority relies throughout on its
view of what is “reasonable,” I submit it is for the Legislature, and not this court,
to make the policy decision concerning the appropriate balance between a peace
officer’s right to confidentiality of his or her personnel records and the public’s
right to accountability in government. In imposing its own view of what is
13
reasonable, the majority departs from the clear statutory language that should be
our only guide.
Because I disagree the Commission employs this deputy sheriff, I would
find the Commission’s records are not privileged under Penal Code section 832.7
and thus should have been disclosed under the CPRA. Because the majority finds
otherwise, I dissent.
WERDEGAR, J.
14
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion The Copley Press, Inc. v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 122 Cal.App.4th 489
Rehearing Granted
__________________________________________________________________________________
Opinion No. S128603
Date Filed: August 31, 2006
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Wayne L. Peterson
__________________________________________________________________________________
Attorneys for Appellant:
Harold W. Fuson, Jr., Judith L. Fanshaw, Scott A. Wahrenbrock; Sheppard Mullin Richter & Hampton,
Guylyn R. Cummins, Robert J. Stumpf, Gary L. Bostwick and Jean-Paul Jassy for Petitioner.
Casey Gwinn, City Attorney (San Diego), Anita M. Noone, Assistant City Attorney, and James M. Chapin,
Deputy City Attorney, for City of San Diego and City of San Diego Civil Service Commission as Amici
Curiae on behalf of Petitioner.
Law Offices of Amitai Schwartz, Amitai Schwartz; Alan L. Schlosser, Mark Schlosberg; Peter Eliasberg;
Jordan C. Budd, Elvira Cacciavillani and David Blair-Loy for the ACLU Foundation of Northern
California, the ACLU Foundation of Southern California and the ACLU Foundation of San Diego &
Imperial Counties as Amici Curiae on behalf of Petitioner.
Davis Wright Tremaine, Kelli Sager, Alonzo Wickers IV, Susan E. Seager, Thomas R. Burke; David
Tomlin; Russell F. Coleman, David S. Starr; Charles J. Glasser, Jr.; Peter Scheer; Thomas W. Newton,
James W. Ewert; Terry Francke; Levine Sullivan Koch & Schulz, James E. Grossberg; Eve Burton,
Jonathan R. Donnellan; Karlene W. Goller; Stephen J. Burns; DLA Piper Rudnick Gray Cary, James M.
Chadwick; David McCraw; Lucy A. Dalglish; Loeb & Loeb and Douglas E. Mirell for Los Angeles Times
Communications LLC, Freedom Communications, Inc., dba The Orange County Register, The Hearst
Corporation, The Associated Press, The Bakersfield Californian, The New York Times Company, The
McClatchy Company, Belo Corp., The San Jose Mercury News, Inc., Bloomberg L.P., California
Newspaper Publishers Association, Society of Professional Journalists, Greater Los Angeles Chapter, The
Reporters Committee for Freedom of the Press, California First Amendment Coalition, Californians Aware
and Professor Erwin Chemerinsky as Amici Curiae on behalf of Petitioner.
Elise S. Rose and Bruce A. Mongross for California State Personnel Board as Amicus Curiae on behalf of
Petitioner.
__________________________________________________________________________________
Attorneys for Respondent:
No appearance for Respondent.
Page 2 – S128603 – counsel continued
Attorneys for Real Party in Interest:
John J. Sansone, County Counsel, and William H. Songer, Deputy County Counsel, for Real Parties in
Interest County of San Diego and San Diego County Civil Service Commission.
Bobbitt & Pinckard, Everett L. Bobbitt, Richard L. Pinckard, Bradley M. Fields and Julie S. Buechler for
Real Parties in Interest San Diego Sheriffs’ Association and San Diego Police Officers’ Association.
Carroll, Burdick & McDonough, Gary M. Messing; Ivey, Smith & Ramirez and Jean-Claude André for
Peace Officers Research Association of California’s Legal Defense Fund as Amicus Curiae on behalf of
Real Parties in Interests San Diego Sheriffs’ Association and San Diego Police Officers’ Association.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Guylyn R. Cummins
Sheppard Mullin Richter & Hampton
501 West Broadway, 19th Floor
San Diego, CA 92101-3598
(619) 338-6500
William H. Songer
Deputy County Counsel
1600 Pacific Highway, Room 355
San Diego, CA 92101-2469
(619) 531-4749
Everett L. Bobbitt
Bobbitt & Pinckard
8388 Vickers Street
San Diego, CA 92111
(858) 467-1199
Opinion Information
| Date: | Docket Number: |
| Thu, 08/31/2006 | S128603 |
Parties
| 1 | Copley Press, Inc. (Petitioner) Represented by Guylyn R. Cummins Sheppard Mullin Richter & Hampton, LLP 501 W. Broadway, 19th Floor San Diego, CA |
| 2 | Copley Press, Inc. (Petitioner) Represented by Harold W. Fuson Copley Press, Inc. 7776 Ivanhoe Avenue La Jolla, CA |
| 3 | Superior Court Of San Diego County (Respondent) |
| 4 | County Of San Diego (Real Party in Interest) Represented by William H. Songer Office of the County Counsel 1600 Pacific Highway, Suite 355 San Diego, CA |
| 5 | County Of San Diego (Real Party in Interest) Represented by Casey G. Gwinn Office of the City Attorney 1200 Third Avenue, Suite 1620 San Diego, CA |
| 6 | San Diego Deputy Sherffs Association (Real Party in Interest) Represented by Bradley Michael Fields Law Office of Everett L. Bobbitt 8388 Vickers Street San Diego, CA |
| 7 | San Diego Deputy Sherffs Association (Real Party in Interest) Represented by Richard L. Pinckard Law Office of Everett L. Bobbitt 8388 Vickers Street San Diego, CA |
| 8 | San Diego Police Officers Association (Real Party in Interest) |
| 9 | Aclu Foundation Of Norther California, Inc. (Amicus curiae) Represented by Mark Andrew Schlosberg ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA |
| 10 | Aclu Foundation Of Norther California, Inc. (Amicus curiae) Represented by Alan L. Schlosser ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA |
| 11 | Peace Officers Research Association Of California (Amicus curiae) Represented by Jean-Claud Andre Ivey Smith & Ramirez 2602 Cardiff Avenue Los Angeles, CA |
| 12 | Peace Officers Research Association Of California (Amicus curiae) Represented by Gary M. Messing Carroll Burdick & McDonough, LLP 1007 Seventh Street, Suite 200 Sacramento, CA |
| 13 | Los Angeles Times Communications Llc (Amicus curiae) Represented by Kelli L. Sager Davis Wright Tremaine, LLP 865 S. Figueroa Street, Suite 2400 Los Angeles, CA |
| 14 | Aclu Foundation Of San Diego & Imperial Counties, Inc. (Amicus curiae) Represented by John David Blair-Loy Center For Justice 35 W Main St #300 Spokane, WA |
| 15 | Aclu Foundation Of San Diego & Imperial Counties, Inc. (Amicus curiae) Represented by Jordan Charles Budd ACLU Foundation of San Diego P.O. Box 87131 San Diego, CA |
| 16 | Aclu Foundation Of Southern California, Inc. (Amicus curiae) Represented by Peter J. Eliasberg ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA |
| 17 | State Personnel Board (Amicus curiae) Represented by Bruce A. Monfross California State Personnel Board 801 Capitol Mall, P.O. Box 944201 Sacramento, CA |
| 18 | State Personnel Board (Amicus curiae) Represented by Elise S. Rose Chief Counsel, State Personnel Board 801 Capitol Mall, P.O. Box 944201 Sacramento, CA |
| Disposition | |
| Aug 31 2006 | Opinion: Reversed |
| Dockets | |
| Oct 21 2004 | Record requested |
| Oct 21 2004 | Petition for review filed by counsel for RPI (San Diego Deputy Sheriffs' Assoc. and San Diego Police Officers' Assoc.) |
| Oct 22 2004 | Received Court of Appeal record two doghouses |
| Nov 8 2004 | Request for depublication (petition for review pending) RPI 'S. |
| Nov 19 2004 | Received: errata from Attorney Bradley M. Fields re: CA case number. |
| Dec 1 2004 | Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ. |
| Dec 9 2004 | Certification of interested entities or persons filed RPI (San Diego Deputy Sheriff's Assoc.) Atty. Everett L. Bobbitt. |
| Dec 30 2004 | Opening brief on the merits filed RPI's ( San Diego Co. Deputy Sheriffs' & San Diego Police Officers's Assoc.) |
| Jan 7 2005 | Request for extension of time filed for petnr Copley Press to file the answer brief on the merits, to 2/23/05. |
| Jan 13 2005 | Extension of time granted to 2-23-05 for petitioner to file the answer brief on the merits. |
| Jan 28 2005 | Request for extension of time filed to 2-18-2005 by RPI County of San Diego Civil Service Commission to file its answer brief on the merits. |
| Jan 28 2005 | Certification of interested entities or persons filed petitioner (Copley Press, Inc.) |
| Feb 8 2005 | Request for extension of time filed by petitioner The Copley Press for a 12-day extension of time to 3-7-2005, to file its answer brief on the merits. |
| Feb 9 2005 | Extension of time granted On application of petitioner The Copley Press Inc. and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including March 7, 2005. No further extensions of time are contemplated. |
| Feb 10 2005 | Extension of time granted On application of real party in interest County of San Diego Civil Service Commission and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including February 18, 2005. |
| Feb 18 2005 | Filed: RPIS San Diego County Deputy Sheriffs' Association and San Diego Police Officers' Associaiton to file a consolidated Reply Brief on the Merits to within 20 days from when whichever answer brief is filed later. |
| Feb 18 2005 | Answer brief on the merits filed by RPI County of San Diego |
| Feb 24 2005 | Order filed The application of real parties to file a consolidated reply brief on the merits to within 20 days after the later answer brief on the merits is filed is hereby GRANTED. |
| Mar 8 2005 | Answer brief on the merits filed by Petitioner (The Copley Press, Inc.) CRC 40.1(b) |
| Mar 8 2005 | Request for judicial notice filed (granted case) by Petitioner (The Copley Press, Inc.) |
| Mar 28 2005 | Reply brief filed (case fully briefed) RPI ( San Diego County Dep. Sheriff, et al.) |
| Apr 27 2005 | Received application to file Amicus Curiae Brief and Brief of ACLU Founddation of Northern California, etc et al. in support of petitioner (Copley Press) |
| Apr 28 2005 | Received application to file Amicus Curiae Brief ["The Media"] L.A. Times Communications LLC, Freedom Communicataions, Inc., dba The OC. Register, The Hearst Corp., The Assoc.Press- The Bakersfiedl Californian, The Hearst Cop., The Associated Press, The Bakersfield Californian, The N.Y. Times co., The McClatchy co., Belo Corp., The San Jose Mercury News, Inc., Bloomberg L.P., Calif. Nes publ. Assoc., Society of Professional Journalist, Greater L.A. chapter, The Reporters Committee for Freedom of the Press, Californai First Amendment Coalition, Californians Aware and Professor Erwin Chermerinsky. [app & brief under separate] also submitted: concurren herewit II vols of exhibits A -thru-J // also submitted : O. & 3 copies -> Judicial Notice request/blue covers [ all -- supporting respondent The Copley Press, Inc.] |
| Apr 29 2005 | Received application to file Amicus Curiae Brief and brief of Peace Officers Research Association of California's Legal Defense Fund in support of RPIS and Respondents San Diego Deputy Sheriffs' Association and San Diego Police Officers' Association |
| May 3 2005 | Lodged: L.A. Times Communication et al.'s "Media Amici Curiae Appendix: Declaration of Susan E. Seager with Exhibits A-J, Vol I of I, MAA1-MAA293" (Original +1 only) |
| May 3 2005 | Permission to file amicus curiae brief granted The application of ACLU Foundation of Northern California, et al. for permission to file an amicus curiae brief in support of petitioner (Copley Press) is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| May 3 2005 | Amicus curiae brief filed ACLU Foundation of Northern California et al. in support of petitioner (Copley Press). |
| May 3 2005 | Permission to file amicus curiae brief granted The application of Police Officers Research Association of California's Legal Defense Fund for permission to file an amicus curiae brief in support of real parties in interest is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| May 3 2005 | Amicus curiae brief filed Peace Officers Research Association of Calfornia's Legal Defense Fund in support of real parties in interest. |
| May 3 2005 | Permission to file amicus curiae brief granted The application of Los Angeles Times Communications LLC, Fredom Communications, Inc., dba The Orange County Register, et al. for permission to file an amicus curiae brief in support of petitioner (The Copley Press, Inc.) is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| May 3 2005 | Amicus curiae brief filed Los Angeles Times Communications LLC, Freedom Communications, Inc., dba The Orange County Register, et al., in support of petitioner (The Copy Press, Inc.) |
| May 3 2005 | Request for judicial notice filed (granted case) by Amicus Curiae Los Angeles Times Communications LL, et al. Lodged: Media Amici Curiae Appendix; Declaration of Susan E. Seager with Exhibits A-J, Volume I of I, MAA1-MAA293" [original + 1 copy] |
| May 10 2005 | Request for extension of time filed to 7-7-2005 (45 days) to file RPIS' (San Diego County Deputy Sheriffs' Assn. and San Diego Police Officers' Assn.) Answers to Amicus Curiae Briefs filed by (1) L.A. Times Communications LLC, Freedom Communications, Inc., dba The Orange County Register, et al., and (2) ACLU Foundation of Northern California, et al. |
| May 13 2005 | Change of contact information filed for: Gary M. Messing, counsel for Amicus Peace Officers Research Association of California's Legal Defense fund |
| May 13 2005 | Extension of time granted On application of real parties and good cause appearing, it is ordered that the time to serve and file real parties responses to amicus curiae briefs is extended to and including July 7, 2005. |
| May 17 2005 | Request for extension of time filed to June 10, 2005 (additional 18 days), to file Petitioner's (Copley Press) Response to Amicus Curiae Brief of Peace Officers Research Association of California's Legal Defense Fund. |
| May 18 2005 | Request for extension of time filed to July 7, 2005 to file answers to amici curiae briefs [ Filed at Los Angeles Office ] |
| May 19 2005 | Notice of substitution of counsel Guylyn R. Cummins of Sheppard, Mullin et al in place of Gray Cary et al. as counsel for Petitioner (The Copley Press, Inc.) |
| May 23 2005 | Extension of time granted On application of Petitioenr (Copley Press) and good cause appearing, it is ordered that the time to serve and file Petitioner's response to the Amicus Curiae Brief filed by Peace Officers Research Association of California's Legal Defense Fund in support of real parties is extended to and including June 10, 2005. |
| May 26 2005 | Received application to file Amicus Curiae Brief California State Personnel Board (Received untimely in Sacramento) [See application to file late amicus curiae brief within amicus brief submitted.] |
| Jun 6 2005 | Permission to file amicus curiae brief granted The application of California State Personnel Board for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Jun 6 2005 | Amicus curiae brief filed California State Personnel Board in support of petitioner [ Copley Press Inc.] |
| Jun 13 2005 | Response to amicus curiae brief filed Petitioner's (Copley Press) to Amicus Brief of Peace Officers Research Association of California's Legal Defense Fund. [CRC 40.1(b) |
| Jun 13 2005 | Request for extension of time filed requesting to 8-10-05 (45 days) to file real parties in interest's response/answer to brief of amicus curiae State Personnel Board. |
| Jun 20 2005 | Extension of time granted To August 10, 2005 to file RPIS' Answer to AC Brief filed by The California State Personnnel Board No further extensions are contemplated.. |
| Jul 7 2005 | Response to amicus curiae brief filed by RPIS San Diego County Deputy Sheriffs' Associaiton et al. to ACB by ACLU Foundation of Northern California, et al. [ Filed in San Diego ] |
| Jul 7 2005 | Response to amicus curiae brief filed by RPIS San Diego County Deputy Sheriffs' Association et al. to ACB by Media Amici Curiae et al. [ Filed in San Diego ] |
| Jul 25 2005 | Filed: Application for Expedited Review in Light of Ongoing Closure of County of San Diego Civil Service Commission Appeal Hearings of Disciplined Peace Officers. Petitioner's (Copley Press) Application. |
| Jul 26 2005 | Order filed The application for expedited review filed by petitioner is hereby DENIED. |
| Aug 10 2005 | Response to amicus curiae brief filed by RPI San Diego County Deputy Sheriffs' Association et al to ACB by the California State Personnel Board. |
| Feb 2 2006 | Received: From Everett L. Bobbitt, lead attorney for real parties (San Diego County Deputy Sheriffs' Association and San Diego Police Officers' Association) Notice of Vacation Leave from March 1-17, 2006. |
| Apr 25 2006 | Received application to file Amicus Curiae Brief (Late) from the Association for Los Angeles Deputy Sheriffs, in support of the San Diego Deputy Sheriffs' Association and San Diego Police Officers' Association. |
| May 2 2006 | Case ordered on calendar June 7, 2006, at 9:00 a.m., in Los Angeles |
| May 4 2006 | Received: Notice of Substitution of Counsel for David Blair-Loy in place of Jordan Budd as counsel for Amicus Curiae ACLU of San Diego and Imperial Counties |
| May 4 2006 | Application to file amicus curiae brief denied The application of Association for Los Angeles Deputy Sheriffs for permission to file an amicus curiae brief in support of Real Parties San Diego Deputy Sheriffs' Association and San Diego Police Officers' Association is hereby DENIED. ( See California Rules of Court, rule 29.1(f)(2). |
| May 5 2006 | Change of contact information filed for: Alan L.Schlosser and Mark Schlosberg, for Amici ACLU Northern California |
| May 12 2006 | Application filed to: divide oral argument time. Joint application by real parties in interest to divide time equally between real parties San Diego County Deputy Sheriffs' Association et al. and real party County of San Diego. |
| May 17 2006 | Order filed The request of counsel for real parties in interest in the above-referenced cause to allow two counsel to argue on behalf of real parties in interest at oral argument is hereby granted. The request of real parties to allocate to San Diego Sheriffs' Association et al. 20 minutes, & County of San Diego 10 minutes, of real parties' 30-minute allotted time for oral argument is granted. |
| Jun 5 2006 | Request for judicial notice granted The request for judicial notice of petitioner The Copley Press, Inc., is granted as to Exhibit 1 and as to the legislative history of Penal Code sections 832.5, 832.7 & 832.8, and of Evidence Code sections 1043 through 1046. It is denied as to Exhibits 2 and 3. |
| Jun 7 2006 | Cause argued and submitted |
| Jun 15 2006 | Order filed The Request for Judicial Notice of Media Amici Curiae is granted as to Exhibit J. It is otherwise denied. |
| Aug 31 2006 | Opinion filed: Judgment reversed Judgment of the Court of Appeal reversed and the matter is remanded. Opinion by Chin, J. -- Joined by George, C.J., Kennard, Baxter, Moreno, Corrigan, JJ. Dissenting Opinion by Werdegar, J. |
| Oct 3 2006 | Remittitur issued (civil case) |
| Oct 10 2006 | Received: Receipt for remittitur from Clerk, 4th Appellate District, Division 1. |
| Oct 16 2006 | Returned record to Fourth District, Division One -- three doghouses |
| Briefs | |
| Dec 30 2004 | Opening brief on the merits filed |
| Feb 18 2005 | Answer brief on the merits filed |
| Mar 8 2005 | Answer brief on the merits filed |
| Mar 28 2005 | Reply brief filed (case fully briefed) |
| May 3 2005 | Amicus curiae brief filed |
| May 3 2005 | Amicus curiae brief filed |
| May 3 2005 | Amicus curiae brief filed |
| Jun 6 2005 | Amicus curiae brief filed |
| Jun 13 2005 | Response to amicus curiae brief filed |
| Jul 7 2005 | Response to amicus curiae brief filed |
| Jul 7 2005 | Response to amicus curiae brief filed |
| Aug 10 2005 | Response to amicus curiae brief filed |
