Supreme Court of California Justia
Docket No. S128603

Copley Press v. Super. Ct.

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, 08/31/2006S128603

Parties
1Copley Press, Inc. (Petitioner)
Represented by Guylyn R. Cummins
Sheppard Mullin Richter & Hampton, LLP
501 W. Broadway, 19th Floor
San Diego, CA

2Copley Press, Inc. (Petitioner)
Represented by Harold W. Fuson
Copley Press, Inc.
7776 Ivanhoe Avenue
La Jolla, CA

3Superior Court Of San Diego County (Respondent)
4County 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

5County 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

6San 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

7San 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

8San Diego Police Officers Association (Real Party in Interest)
9Aclu Foundation Of Norther California, Inc. (Amicus curiae)
Represented by Mark Andrew Schlosberg
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

10Aclu Foundation Of Norther California, Inc. (Amicus curiae)
Represented by Alan L. Schlosser
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

11Peace Officers Research Association Of California (Amicus curiae)
Represented by Jean-Claud Andre
Ivey Smith & Ramirez
2602 Cardiff Avenue
Los Angeles, CA

12Peace Officers Research Association Of California (Amicus curiae)
Represented by Gary M. Messing
Carroll Burdick & McDonough, LLP
1007 Seventh Street, Suite 200
Sacramento, CA

13Los Angeles Times Communications Llc (Amicus curiae)
Represented by Kelli L. Sager
Davis Wright Tremaine, LLP
865 S. Figueroa Street, Suite 2400
Los Angeles, CA

14Aclu 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

15Aclu 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

16Aclu Foundation Of Southern California, Inc. (Amicus curiae)
Represented by Peter J. Eliasberg
ACLU Foundation of Southern California
1616 Beverly Boulevard
Los Angeles, CA

17State Personnel Board (Amicus curiae)
Represented by Bruce A. Monfross
California State Personnel Board
801 Capitol Mall, P.O. Box 944201
Sacramento, CA

18State 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 2006Opinion: Reversed

Dockets
Oct 21 2004Record requested
 
Oct 21 2004Petition for review filed
  by counsel for RPI (San Diego Deputy Sheriffs' Assoc. and San Diego Police Officers' Assoc.)
Oct 22 2004Received Court of Appeal record
  two doghouses
Nov 8 2004Request for depublication (petition for review pending)
  RPI 'S.
Nov 19 2004Received:
  errata from Attorney Bradley M. Fields re: CA case number.
Dec 1 2004Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Dec 9 2004Certification of interested entities or persons filed
  RPI (San Diego Deputy Sheriff's Assoc.) Atty. Everett L. Bobbitt.
Dec 30 2004Opening brief on the merits filed
  RPI's ( San Diego Co. Deputy Sheriffs' & San Diego Police Officers's Assoc.)
Jan 7 2005Request for extension of time filed
  for petnr Copley Press to file the answer brief on the merits, to 2/23/05.
Jan 13 2005Extension of time granted
  to 2-23-05 for petitioner to file the answer brief on the merits.
Jan 28 2005Request 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 2005Certification of interested entities or persons filed
  petitioner (Copley Press, Inc.)
Feb 8 2005Request 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 2005Extension 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 2005Extension 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 2005Filed:
  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 2005Answer brief on the merits filed
  by RPI County of San Diego
Feb 24 2005Order 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 2005Answer brief on the merits filed
  by Petitioner (The Copley Press, Inc.) CRC 40.1(b)
Mar 8 2005Request for judicial notice filed (granted case)
  by Petitioner (The Copley Press, Inc.)
Mar 28 2005Reply brief filed (case fully briefed)
  RPI ( San Diego County Dep. Sheriff, et al.)
Apr 27 2005Received 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 2005Received 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 2005Received 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 2005Lodged:
  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 2005Permission 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 2005Amicus curiae brief filed
  ACLU Foundation of Northern California et al. in support of petitioner (Copley Press).
May 3 2005Permission 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 2005Amicus curiae brief filed
  Peace Officers Research Association of Calfornia's Legal Defense Fund in support of real parties in interest.
May 3 2005Permission 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 2005Amicus 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 2005Request 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 2005Request 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 2005Change of contact information filed for:
  Gary M. Messing, counsel for Amicus Peace Officers Research Association of California's Legal Defense fund
May 13 2005Extension 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 2005Request 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 2005Request for extension of time filed
  to July 7, 2005 to file answers to amici curiae briefs [ Filed at Los Angeles Office ]
May 19 2005Notice 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 2005Extension 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 2005Received 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 2005Permission 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 2005Amicus curiae brief filed
  California State Personnel Board in support of petitioner [ Copley Press Inc.]
Jun 13 2005Response 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 2005Request 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 2005Extension 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 2005Response 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 2005Response 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 2005Filed:
  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 2005Order filed
  The application for expedited review filed by petitioner is hereby DENIED.
Aug 10 2005Response 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 2006Received:
  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 2006Received 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 2006Case ordered on calendar
  June 7, 2006, at 9:00 a.m., in Los Angeles
May 4 2006Received:
  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 2006Application 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 2006Change of contact information filed for:
  Alan L.Schlosser and Mark Schlosberg, for Amici ACLU Northern California
May 12 2006Application 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 2006Order 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 2006Request 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 2006Cause argued and submitted
 
Jun 15 2006Order filed
  The Request for Judicial Notice of Media Amici Curiae is granted as to Exhibit J. It is otherwise denied.
Aug 31 2006Opinion 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 2006Remittitur issued (civil case)
 
Oct 10 2006Received:
  Receipt for remittitur from Clerk, 4th Appellate District, Division 1.
Oct 16 2006Returned record
  to Fourth District, Division One -- three doghouses

Briefs
Dec 30 2004Opening brief on the merits filed
 
Feb 18 2005Answer brief on the merits filed
 
Mar 8 2005Answer brief on the merits filed
 
Mar 28 2005Reply brief filed (case fully briefed)
 
May 3 2005Amicus curiae brief filed
 
May 3 2005Amicus curiae brief filed
 
May 3 2005Amicus curiae brief filed
 
Jun 6 2005Amicus curiae brief filed
 
Jun 13 2005Response to amicus curiae brief filed
 
Jul 7 2005Response to amicus curiae brief filed
 
Jul 7 2005Response to amicus curiae brief filed
 
Aug 10 2005Response to amicus curiae brief filed
 
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