IN THE SUPREME COURT OF CALIFORNIA
LONG BEACH POLICE OFFICERS
ASSOCIATION,
Plaintiff and Appellant,
v.
S200872
CITY OF LONG BEACH et al.,
Ct.App. 2/2 B231245
Defendants and Appellants;
Los Angeles County
LOS ANGELES TIMES
Super. Ct. No. NC055491
COMMUNICATIONS LLC,
Real Party in Interest and
Respondent.
A newspaper asked a city to release the names of police officers involved in
certain shootings while on duty. The police union then sought injunctive relief
against the city in superior court, attempting to prevent release of the names. The
newspaper intervened (seeking disclosure of the names), and the city then aligned
itself with the union (opposing disclosure). The trial court denied the union‘s
request for a permanent injunction; that denial was upheld on appeal. We granted
the separate petitions for review filed by the city and the union. We now affirm
the judgment of the Court of Appeal.
I
Shortly before 5:00 p.m., on December 12, 2010, two City of Long Beach
police officers responded to a resident‘s telephone call about an intoxicated man
brandishing a ―six-shooter‖ on neighboring property. At the sight of the two
officers, the man (35-year-old Douglas Zerby) pointed at them an object
resembling a gun. The officers immediately fired multiple rounds at Zerby, killing
him. It turned out that the object Zerby was holding was a garden hose spray
nozzle with a pistol grip.
Three days later, reporter Richard Winton of the Los Angeles Times (the
Times), asked the Long Beach City Attorney‘s Office for ―[t]he names of Long
Beach police officers involved in the December 12[, 2010,] office[r-]involved
shooting in the 5300 block of East Ocean Boulevard‖ (the Zerby shooting), as well
as ―[t]he names of Long Beach police officers involved in officer[-]involved
shootings from Jan[uary] 1[,] 2005 to Dec[ember] 11, 2010‖ (the nearly six-year
period leading up to the Zerby shooting). The request was made under the
California Public Records Act (Gov. Code, § 6250 et seq.).
On December 30, 2010, plaintiff Long Beach Police Officers Association
(the Union), the bargaining agent for all Long Beach police officers, sought
injunctive relief in the superior court. Named as defendants were the City of Long
Beach, the Long Beach Police Department, and its chief of police (collectively, the
City). In its complaint, the Union asserted that the City had informed it that,
unless prohibited by a court, the City would disclose the information sought by the
Times. Accompanying the Union‘s request for injunctive relief was a declaration
by Lieutenant Steve James, the Union‘s president, expressing concern that release
of the officers‘ names could result in ―threats against the well being of officers or
their families,‖ as occurred in one recent police shooting case in which release of
2
an officer‘s name led to ―death threats‖ against the officer. James also mentioned
an anonymous post on an Internet Web site, wishing that the children of an officer
involved in a particular police shooting would experience Christmas without their
father. James asserted that the Internet offers broad access to personal
information, using only a person‘s name as an Internet search term.
The superior court issued a temporary restraining order prohibiting the City
from disclosing to the Times the names of the officers involved in the Zerby
shooting. The court then continued the case to a later date to determine whether to
issue a preliminary or permanent injunction, and it allowed the Times to intervene
in the action.
Defendant City supported plaintiff Union‘s request for injunctive relief.
The City asserted that the names of the two officers involved in the December
2010 fatal shooting of Zerby were exempt from disclosure under the California
Public Records Act. With respect to the names of the City‘s police officers
involved in earlier shootings, the City asserted that those names, too, were likely
subject to the same statutory exemptions but that its practice was to evaluate each
disclosure request on a ―case-by-case basis.‖
The City submitted a declaration by Long Beach Police Lieutenant Lloyd
Cox, who was in charge of ―the criminal and administrative investigations related
to all Officer Involved Shootings.‖ The declaration stated that the police
department conducts an administrative investigation of every officer-involved
shooting, and, if warranted, an internal criminal investigation follows. Documents
resulting from these investigations are treated by the police department as
personnel records that are statutorily exempt from disclosure. Cox‘s declaration
also stated that revealing the name of an officer involved in a shooting could
expose the officer and the officer‘s family to harassment, because the officer‘s
home address and other personal information could easily be found using the
3
Internet. The declaration further stated that when, for example, an officer is
involved in a shooting of a gang member, it is not uncommon for the gang to
retaliate against the officer. Cox mentioned eight ―Officer Safety Bulletins . . .
about potential retaliation/threats against officers,‖ two of which were related to
shootings, and he also described graffiti in the City of Long Beach that read
―Strike Kill a Cop.‖
In arguing against disclosure of the names of the officers involved in the
Zerby shooting, the Union and the City cited Government Code section 6255,
subdivision (a), which authorizes denial of a public records request when ―the
public interest served by not disclosing the record clearly outweighs the public
interest served by disclosure of the record.‖ The Union and the City argued that
the public interest in preventing harassment, threats, or violence against officers
and their families outweighed any benefit the public would gain from disclosure.
The Times moved to strike Lieutenant James‘s declaration (filed by the
Union), but the Times did not object to the declaration of Lieutenant Cox (filed by
the City).1 The trial court struck those portions of the James declaration that
mentioned (1) the general safety concerns associated with releasing the names of
officers involved in shootings, (2) the death threats made against specific officers
involved in past shootings, and (3) the ease with which a name can be used to
gather personal information over the Internet. The trial court then denied the
Union‘s request for a preliminary or permanent injunction, and it discharged the
1
The Times contends that it was not properly served with the Cox
declaration. The Times does not, however, assert that it raised that issue in the
trial court, and hence the issue appears to have been forfeited. In any case, as
discussed below, the trial court concluded that the facts asserted in the Cox
declaration were too general and speculative to support the Union‘s request for
injunctive relief. Therefore, any failure to properly serve the Cox declaration did
not adversely affect the Times.
4
temporary restraining order. The court ruled that none of the disclosure
exemptions in the California Public Records Act protected the names of officers
involved in shootings. With respect to the potential harassment facing those
officers and their families, the court considered such harassment to be speculative
in the absence of a particularized showing regarding a specific officer.
Recognizing that such a showing might be made in the future, the superior court
denied injunctive relief ―without prejudice‖ to a renewed request demonstrating
that ―releasing the names of particular officers will create a likelihood of harm.‖
The Union and the City appealed, without success. We then granted their
petitions for review.2
II
A. Statutory Law
The California Legislature in 1968, recognizing 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), enacted the California
Public Records Act, which grants access to public records held by state and local
agencies (id., § 6253, subd. (a)). The act broadly defines ― ‗[p]ublic records‘ ‖ as
including ―any writing containing information relating to the conduct of the
public‘s business prepared, owned, used, or retained by any state or local
2
Both the trial court and the Court of Appeal rejected the Times‘s legal issue
that Government Code sections 6258 and 6259 set forth the exclusive means for
litigating whether requested records must be disclosed and that therefore
declaratory relief was inappropriate. (See Filarsky v. Superior Court (2002) 28
Cal.4th 419 [holding that a city is not entitled to declaratory relief regarding its
disclosure obligations under the California Public Records Act, but not deciding
whether a third party — such as the Union here — is entitled to such relief].) We
did not grant review to decide that legal issue, and we express no view on the
matter. The issue remains open, and the Times can reassert it in any future
proceedings.
5
agency . . . .‖ (Id., § 6252, subd. (e).) The act has certain specific exemptions (id.,
§§ 6254-6254.30), but a public entity claiming an exemption must show that the
requested information falls within the exemption (id., § 6255, subd. (a)).
Government Code section 6255‘s subdivision (a) contains a ―catchall
exemption.‖ (Michaelis, Montanari & Johnson v. Superior Court (2006) 38
Cal.4th 1065, 1071.) It allows a public agency to ―justify withholding any record
by demonstrating 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).) As we have said in the
past, ―this provision contemplates a case-by-case balancing process, with the
burden of proof on the proponent of nondisclosure to demonstrate a clear
overbalance on the side of confidentiality.‖ (Michaelis, Montanari & Johnson,
supra, at p. 1071.)
Also relevant here is Government Code section 6254, subdivision (c),
which protects ―[p]ersonnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.‖ But the Union
and the City place their greatest reliance on Government Code section 6254,
subdivision (k). That provision protects ―[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.‖ Succinctly put,
subdivision (k) ― ‗incorporates other [disclosure] prohibitions established by
law.‘ ‖ (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1283
(Copley), quoting CBS, Inc. v. Block (1986) 42 Cal.3d 646, 656.) The
―prohibitions‖ pertinent here are those set forth in a set of discovery statutes that
the Legislature enacted in 1978 in response to our 1974 decision in Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess).
6
In Pitchess, a defendant charged with battery on four sheriff‘s deputies
(Pen. Code, §§ 242, 243, subd. (b)) claimed he was defending himself against the
deputies‘ use of excessive force. We held that defendants in similar situations had
a right, albeit limited, to discover from a peace officer‘s employer the existence of
any previous complaints about the officer‘s use of excessive force. (Pitchess,
supra, 11 Cal.3d at pp. 537-538.) In response to our decision, the Legislature
enacted several statutes, which we hereafter refer to as the ―Pitchess statutes‖ and
which we summarize below.
Under the Pitchess statutes, a public entity that employs peace officers must
investigate and retain citizen complaints of any officer misconduct, such as the use
of excessive force. (Pen. Code, § 832.5.) Litigants, upon a showing of good
cause, are given limited access to records of such complaints and investigations
(Evid. Code, §§ 1043, 1045), but such records are otherwise ―confidential‖ and
may ―not be disclosed‖ (Pen. Code, §§ 832.7, subd. (a), 832.8, subd. (e)). Also
protected as ―confidential‖ are ―[p]eace officer . . . personnel records‖ and
―information obtained from these records.‖ (Id., § 832.7, subd. (a).) Such
―personnel records‖ include an officer‘s personal and family information, medical
history, election of benefits (id., § 832.8, subds. (a), (b) & (c)), as well as matters
related to the officer‘s ―advancement, appraisal, or discipline‖ (id., subd. (d)). In
addition, confidentiality applies to any information that ―would constitute an
unwarranted invasion of [a peace officer‘s] personal privacy.‖ (Id., § 832.8, subd.
(f).)
One other piece of legislation merits mention here. In 2004, California‘s
voters passed an initiative measure that added to the state Constitution a provision
directing the courts to broadly construe statutes that grant public access to
government information and to narrowly construe statutes that limit such access.
(Cal. Const., art. I, § 3, subd. (b)(2).) That provision, however, does not affect the
7
construction of any statute ―to the extent . . . it protects [the] right to privacy,
including any statutory procedures governing discovery or disclosure of
information concerning the official performance or professional qualifications of a
peace officer.‖ (Cal. Const., art. I, § 3, subd. (b)(3).) Thus, by its express terms,
the constitutional provision excludes from the requirement of narrow construction
those statutes that protect the privacy interests of peace officers, including
Government Code section 6254‘s subdivision (c) and the Pitchess statutes, both of
which are at issue here.
B. Decisional Law
Relevant here are two of this court‘s recent decisions, which considered the
interplay between the Pitchess statutes and requests under the California Public
Records Act for disclosure of peace officers‘ names.
In Copley, supra, 39 Cal.4th 1272 (decided in 2006), a newspaper publisher
sought access to a civil service commission‘s records of an administrative appeal
brought by a county sheriff‘s deputy who had been terminated for disciplinary
reasons. After the commission denied the request, the publisher unsuccessfully
petitioned the superior court for a writ of mandate, seeking to compel disclosure.
The publisher then appealed, and the Court of Appeal directed the civil service
commission to give the publisher access to the records, and also to disclose the
deputy‘s name. The Court of Appeal reasoned that because the Pitchess statutes
define ―personnel records‖ as any file maintained under the officer‘s name by the
officer’s employing agency (Pen. Code, § 832.8) and because the civil service
commission was not the officer‘s employing agency, the civil service
commission‘s records did not qualify as ―personnel records‖ protected by the
Pitchess statutes. At the request of two police unions that had intervened in the
action, we granted review and, with one justice dissenting, reversed the Court of
Appeal.
8
Copley held that the civil service commission‘s records of the deputy‘s
appeal were confidential ―personnel records‖ under the Pitchess statutes (Pen.
Code, §§ 832.7, 832.8) and therefore exempt from disclosure. (Copley, supra, 39
Cal.4th at pp. 1286-1296.) Copley explained that neither the language nor the
legislative history of the Pitchess statutes suggested that a peace officer‘s privacy
rights should have less protection simply because the officer‘s employer uses an
outside agency like the civil service commission to conduct its administrative
appeals. (Copley, at p. 1295.) Copley also rejected the Court of Appeal‘s
conclusion that the name of the officer who brought the appeal had to be
disclosed, noting that the Pitchess statutes were ―designed to protect, among other
things, ‗the identity of officers‘ subject to [citizen] complaints.‖ (Copley, at
p. 1297, quoting Pen. Code, § 832.7, subd. (a); see Copley, at p. 1297, quoting
Pen. Code, § 832.7, subd. (c).)
Copley then discussed the Court of Appeal‘s reliance on an earlier appellate
decision, New York Times Co. v. Superior Court (1997) 52 Cal.App.4th 97 (New
York Times), which broadly declared that the Pitchess statutes do not prevent
disclosure of the names of peace officers. (Copley, supra, 39 Cal.4th at pp. 1297-
1298.) That categorical statement was made, we said, ―[w]ithout any analysis,‖
and was ―simply incorrect, at least insofar as it applies to disciplinary matters like
the one at issue [in Copley].‖ (Id. at p. 1298.) We disapproved New York Times to
the extent that decision conflicted with our analysis in Copley. (Copley, at p.
1298.)
In 2007, just one year after Copley, supra, 39 Cal.4th 1272, we again
addressed the issue of a newspaper‘s request, made under the California Public
Records Act, for disclosure of the names of certain peace officers. In Commission
on Peace Officer Standards and Training v. Superior Court (2007) 42 Cal.4th 278
(Commission on Peace Officer Standards), a newspaper sought certain
9
information about peace officers hired statewide by various California public
entities during a specified 10-year period. The information was contained in a
database maintained by a public agency. When the agency denied the
newspaper‘s request, the newspaper challenged that decision in superior court,
which ordered disclosure of each officer‘s name, the appointing agency, the date
of new appointment, and, if applicable, the date of termination. The Court of
Appeal reversed, but a majority of this court disagreed with the Court of Appeal.
(Id. at p. 303.)
In Commission on Peace Officer Standards, the public agency that had
compiled the peace officer database did not employ any of the peace officers, and
therefore the entries in its database were not ―personnel records‖ under a literal
reading of the Pitchess statutes (Pen. Code, § 832.8 [limiting personnel records to
records held in files maintained by an individual‘s employer]). Nonetheless, a
majority of this court concluded that the information in the database would fall
within the protections afforded personnel records if the information was ―obtained
from‖ personnel records maintained by the employing agencies of the peace
officers in question. (Commission on Peace Officer Standards, supra, 42 Cal.4th
at p. 289.) The majority further concluded, however, ―that peace officer personnel
records include only the types of information enumerated in [Penal Code] section
832.8‖ (id. at p. 293), and because the specific information the trial court ordered
disclosed (the names of the officers, their employing agencies, and their
employment dates) did not fall into any of the enumerated categories, it was not
information obtained from protected personnel records (id., at pp. 294-299), and
therefore it was subject to disclosure.
Commission on Peace Officer Standards next held that Government Code
section 6254‘s subdivision (c), which is part of the California Public Records Act,
also did not preclude disclosure of the information covered by the superior court‘s
10
order. (See Commission on Peace Officer Standards, supra, 42 Cal.4th at p. 303.)
As noted (see p. 6, ante), that statutory provision authorizes denial of a public
records request when the information sought consists of ―[p]ersonnel, medical, or
similar files, the disclosure of which would constitute an unwarranted invasion of
personal privacy.‖ (Gov. Code, § 6254, subd. (c).) Commission on Peace Officer
Standards assumed for purposes of its analysis that the records at issue ―may be
characterized as ‗[p]ersonnel . . . or similar files.‘ ‖ (Commission on Peace Officer
Standards, at p. 299.) But it noted that the exemption set forth in section 6254‘s
subdivision (c) requires a balancing of ―the privacy interests of peace officers in
the information at issue against the public interest in disclosure,‖ and it further
noted that the party opposing disclosure ―has the burden‖ of showing that the
records at issue fall within the exemption — a showing the agency failed to make
in Commission on Peace Officer Standards. (Commission on Peace Officer
Standards, at p. 299.)
Against this background of relevant statutes and court decisions, we now
consider the disclosure request of the Times.
III
The Times, citing the California Public Records Act, seeks disclosure of the
names of the two Long Beach police officers involved in the December 12, 2010,
fatal shooting of Zerby, as well as the names of any Long Beach officers involved
in shootings occurring between January 1, 2005, and December 11, 2010. The
Union and the City oppose disclosure. They rely largely on the confidentiality
protections afforded peace officers under the Pitchess statutes, focusing in
particular on Penal Code section 832.7‘s subdivision (a) (protecting from
disclosure a peace officer‘s ―personnel records‖) and Penal Code section 832.8‘s
subdivision (d) (defining ―personnel records‖ as including records of employee
―appraisal[] or discipline‖).
11
The Union and the City also attach significance to the italicized language in
this quote from Commission on Peace Officer Standards: ―[T]he legislative
concern [in adopting sections 832.7 and 832.8] appears to have been with linking a
named officer to the private or sensitive information listed in section 832.8. . . . It
seems unlikely that the Legislature contemplated that the identification of an
individual as a peace officer, unconnected to any of the information it defined as
part of a personnel record, would be rendered confidential by section 832.8.‖
(Commission on Peace Officer Standards, supra, 42 Cal.4th at p. 295, italics
added.) The Union and the City contend that disclosing the names of officers
involved in on-duty shootings necessarily links the named officers to private or
sensitive information in their personnel files, information made confidential under
Penal Code section 832.7‘s subdivision (a). The Union and the City reason that
because every on-duty shooting is routinely investigated by the employing agency,
the details of every such incident (including the names of the officers involved)
are ―records relating to‖ officer ―appraisal[] or discipline‖ (Pen. Code, § 832.8,
subd. (d)), which, by definition, are confidential ―personnel records‖ (id., § 832.8).
We are not persuaded.
Although the Pitchess statutes limit public access to personnel records
(Pen. Code, § 832.7, subd. (a)), including officer names if they are linked to
information in personnel records (Commission on Peace Officer Standards, supra,
42 Cal.4th at p. 295), many records routinely maintained by law enforcement
agencies are not personnel records. For example, the information contained in the
initial incident reports of an on-duty shooting are typically not ―personnel records‖
as that term is defined in Penal Code section 832.8. It may be true that such
shootings are routinely investigated by the employing agency, resulting eventually
in some sort of officer appraisal or discipline. But only the records generated in
connection with that appraisal or discipline would come within the statutory
12
definition of personnel records (Pen. Code, § 832.8, subd. (d)). We do not read
the phrase ―records relating to . . . [¶] . . . [¶] . . . [e]mployee . . . appraisal[] or
discipline‖ (ibid.) so broadly as to include every record that might be considered
for purposes of an officer‘s appraisal or discipline, for such a broad reading of the
statute would sweep virtually all law enforcement records into the protected
category of ―personnel records‖ (id., § 832.8).
Government Code section 6254‘s subdivision (f) lends some support to our
conclusion. Under that statute, when a shooting by a peace officer occurs during
an arrest (Gov. Code, § 6254, subd. (f)(1)) or in the course of responding to a
complaint or request for assistance (id., § 6254, subd. (f)(2)), and when the
officer‘s name is recorded as one of the ―factual circumstances‖ of the incident,
disclosure of the officer‘s name is generally required. It thus appears that the
Legislature draws a distinction between (1) records of factual information about an
incident (which generally must be disclosed) and (2) records generated as part of
an internal investigation of an officer in connection with the incident (which
generally are confidential). We therefore agree with this point made in a 2008
opinion by the California Attorney General: ―Generally speaking, a response to a
request just for the names of officers involved in a particular incident may be
provided without revealing any investigatory or disciplinary matter that may have
arisen out of the incident. Disclosure would merely communicate a statement of
fact that the named officers were involved in the incident. It would not imply any
judgment that the actions taken were inappropriate or even suspect.‖ (91
Ops.Cal.Atty.Gen. 11, 16-17 (2008), fn. omitted.) An employing agency is, of
course, free to emphasize, when complying with a California Public Records Act
request, that its disclosure of the names of officers involved in an incident does not
imply any wrongdoing by those officers.
13
Significantly, the Pitchess statutes are silent as to whether the names of
officers involved in shootings are protected ―personnel records.‖ (Pen. Code,
§ 832.8.) That silence is important because, as this court observed in Commission
on Peace Officer Standards, the personnel records exemption is limited to the
categories of information that are expressly ―enumerated‖ in Penal Code section
832.8. (Commission on Peace Officer Standards, supra, 42 Cal.4th at p. 293.)
That the Legislature did not intend to protect peace officers‘ identities can also be
inferred from the Legislature‘s enactment of Penal Code section 830.10, which
requires uniformed officers to display their name or identification number. That
statute reflects a legislative policy that, generally, the public has a right to know
the identity of an officer involved in an on-duty shooting.
Misplaced is the reliance by the Union and the City on this court‘s decision
in Copley, supra, 39 Cal.4th 1272. There, as we noted earlier, a newspaper
publisher sought records of an administrative appeal brought by a sheriff‘s deputy
who had been terminated. This court concluded that the records (including the
deputy‘s name) were confidential personnel records under the Pitchess statutes.
(Copley, at pp. 1297-1298.) Later, in Commission on Peace Officer Standards,
this court emphasized that the records requested in Copley would have ―linked‖
the deputy‘s name to ―private or sensitive‖ personnel matters, thus explaining why
the name at issue in Copley was protected. (Commission on Peace Officer
Standards, supra, 42 Cal.4th at p. 295; see id. at pp. 298-299.) Here, by contrast,
disclosing the names of officers involved in various shootings would not imply
that those shootings resulted in disciplinary action against the officers, and it
would not link those names to any confidential personnel matters or other
protected information.
In arguing here against disclosure of the officers‘ names, the Union and the
City note this court‘s disapproval in Copley, supra, 39 Cal.4th at page 1298, of the
14
Court of Appeal‘s statement in New York Times, supra, 52 Cal.App.4th at page
101, that ― ‗an individual‘s name is not exempt from disclosure‘ ‖ under the
Pitchess statutes. But, as we explained in Commission on Peace Officer
Standards, supra, 42 Cal.4th at page 298, this court disapproved the statement
from New York Times only ― ‗insofar as it applie[d] to disciplinary matters like the
one at issue‘ ‖ in Copley. (See Copley, at p. 1298.) The records sought in Copley
linked the officer‘s name, not just to an on-duty shooting, but to a confidential
disciplinary action involving the officer, and therefore they were exempt from
disclosure. (See Commission on Peace Officer Standards, supra, 42 Cal.4th at
pp. 295, 298-299.) Thus, Copley‘s disapproval of the statement from New York
Times did not alter the latter case‘s core holding, generally permitting disclosure
of the names of peace officers involved in on-duty shootings. (See 91
Ops.Cal.Atty.Gen. 11, 13-15 (2008) [discussing Copley‘s effect on New York
Times].)
Nor does Government Code section 6254‘s subdivision (c), which is part of
the California Public Records Act, help the Union and the City in their effort to
prevent disclosure of the names of officers involved in shootings. As noted (see p.
6, ante), that provision exempts from disclosure ―[p]ersonnel . . . or similar files‖
if disclosure ―would constitute an unwarranted invasion of personal privacy.‖
(Gov. Code, § 6254, subd. (c).) A serious question arises as to whether the names
of peace officers involved in particular law enforcement incidents can be
characterized as ―[p]ersonnel . . . or similar files‖ (ibid.). Moreover, when it
comes to the disclosure of a peace officer‘s name, the public‘s substantial interest
in the conduct of its peace officers outweighs, in most cases, the officer‘s personal
privacy interest. As we noted in Commission on Peace Officer Standards: ―Peace
officers ‗hold one of the most powerful positions in our society; our dependence
on them is high and the potential for abuse of power is far from insignificant.‘
15
(City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1428.) A police
officer ‗possesses both the authority and the ability to exercise force. Misuse of
[this] authority can result in significant deprivation of constitutional rights and
personal freedoms, not to mention bodily injury and financial loss.‘ (Gray v.
Udevitz (10th Cir. 1981) 656 F.2d 588, 591.)‖ (Commission on Peace Officer
Standards, supra, 42 Cal.4th at pp. 299-300.) Thus, the public‘s significant
interest in the conduct of its peace officers ―diminishes and counterbalances‖ an
officer‘s privacy interest in keeping his or her name confidential. (Id. at p. 299.)
In a case such as this one, which concerns officer-involved shootings, the
public‘s interest in the conduct of its peace officers is particularly great because
such shootings often lead to severe injury or death. Here, therefore, in weighing
the competing interests, the balance tips strongly in favor of identity disclosure
and against the personal privacy interests of the officers involved. Of course, if it
is essential to protect an officer‘s anonymity for safety reasons or for reasons
peculiar to the officer‘s duties — as, for example, in the case of an undercover
officer — then the public interest in disclosure of the officer‘s name may need to
give way. (See International Federation of Professional and Technical Engineers,
Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 337.) That
determination, however, would need to be based on a particularized showing,
which was not made here.
We next consider the City‘s assertion that Government Code section 6254‘s
subdivision (f) permits it to withhold the names of officers involved in on-duty
shootings. That provision exempts from disclosure ―[r]ecords . . . of investigations
conducted by . . . any state or local police agency.‖ (Ibid.) The Times here is not
seeking the records of any administrative or criminal investigation, so that
exemption is inapplicable.
16
Finally, we consider the catchall exemption in Government Code section
6255‘s subdivision (a), which allows a public agency to withhold any public
record if the agency shows 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.‖ The catchall exemption sets forth a balancing
test, and we have already concluded that, generally, the balance of interests favors
disclosing the names of peace officers involved in on-duty shootings. (See pp. 14-
15, ante.) Vague safety concerns that apply to all officers involved in shootings
are insufficient to tip the balance against disclosure of officer names. As we have
said in the past, ―[a] mere assertion of possible endangerment does not ‗clearly
outweigh‘ the public interest in access to . . . records.‖ (CBS, Inc. v. Block, supra,
42 Cal.3d at p. 652.)
The Union and the City assert that disclosing the names of peace officers
involved in shootings could lead to harassment of those officers and their families.
In rejecting that argument, the trial court found that the Union and the City had
offered ―no evidence‖ of a ―specific safety concern regarding any particular
officer.‖ We agree. The declaration by Long Beach Police Lieutenant Cox
(submitted by the City) described the possibility of gang retaliation against
officers involved in shooting gang members, but those concerns were general in
nature. The December 2010 Zerby shooting did not involve a gang member, and
the Union and the City did not identify other shootings that did involve a gang
member. The Cox declaration also mentioned two safety bulletins warning of
―potential retaliation/threats‖ against officers involved in shootings, and it
described graffiti that read ―Strike Kill a Cop,‖ but those vague concerns do not
establish any specific danger to the officers involved in the Zerby shooting or any
shooting that occurred in the six years before the Zerby shooting (see the Times‘s
public records request, quoted at p. 2, ante).
17
We do not hold that the names of officers involved in shootings have to be
disclosed in every case, regardless of the circumstances. We merely conclude, as
did the trial court and the Court of Appeal, that the particularized showing
necessary to outweigh the public‘s interest in disclosure was not made here, where
the Union and the City relied on only a few vaguely worded declarations making
only general assertions about the risks officers face after a shooting. The public
records request by the Times is broadly worded and covers a wide variety of
incidents. Thus, the Union and the City sought a blanket rule preventing the
disclosure of officer names every time an officer is involved in a shooting. Such a
rule would even prevent disclosure of the name of an officer who acted in a heroic
manner that was unlikely to provoke retaliation of any kind, in which case officer
safety would not be an issue. We reject that blanket rule.
The trial court‘s denial of injunctive relief was without prejudice to any
later evidentiary showing that disclosing a particular officer‘s name would
compromise that officer‘s safety or the safety of the officer‘s family. That ruling
permits further litigation by the Union, and it reflects the trial court‘s recognition,
which we share, that the public‘s interest in access to public records is not absolute
and must be weighed against the countervailing privacy and safety interests of
peace officers. Understandable are the general safety concerns of officers who
fear retaliation from angry members of the community after an officer-involved
shooting, especially when the shooting results in the death of an unarmed person.
But the Legislature, whose laws we must construe, has not gone so far as to
protect the names of all officers involved in such shootings. That the Legislature
generally considers it important for the public to know the identities of the officers
serving the community is reflected in the statutory provision requiring a uniformed
officer to display either a name or an identification number (Pen. Code, § 830.10).
DISPOSITION
18
We affirm the judgment of the Court of Appeal, which upheld the trial
court‘s denial of the Union‘s requested injunctive relief.
KENNARD, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.
Retired Associate Justice of the Supreme Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
19
DISSENTING OPINION BY CHIN, J.
I disagree with the majority‘s conclusion that the City of Long Beach (the
City) and the Long Beach Police Officers Association (the Union) have failed to
show that the information the Los Angeles Times (the Times) has requested — the
names of the officers ―involved in‖ the December 12, 2010, shooting of Douglas
Zerby and the names of all police officers ―involved in‖ shootings from January 1,
2005, until December 11, 2010 — is exempt from disclosure under the California
Public Records Act (CPRA) (Gov. Code, § 6250 et seq.).1 In my view, the
evidence in the record of the safety threat faced by police officers identified as
having been involved in a shooting establishes that the requested information is
exempt from disclosure under section 6254, subdivision (c), which provides that
the CPRA does not require disclosure of ―[p]ersonnel, medical, or similar files, the
disclosure of which would constitute an unwarranted invasion of personal
privacy.‖ I therefore dissent.
In relying on this section, the Union acknowledges that the majority in
Commission on Peace Officer Standards and Training v. Superior Court (2007) 42
Cal.4th 278 (Commission on Peace Officer Standards) held that ―the privacy and
safety interests of peace officers‖ as a group regarding the mere fact of their
1
All further unlabeled statutory references are to the Government Code.
employment ―do not outweigh the public‘s interest in the disclosure of [that]
information.‖ (Commission on Peace Officer Standards, supra, 42 Cal.4th at p.
303.) The Union argues, however, that the ―heightened safety concerns of officers
who have been involved in shootings‖ warrant striking a different ―balance‖ with
regard to this ―subgroup.‖ In support of its argument, the Union relies on the
declaration of Long Beach Police Lieutenant Lloyd Cox (Cox declaration), which
states in relevant part: (1) ―A number of officer involved shootings involve gang
members or violent criminals‖; (2) ―When an officer is involved in a shooting with
a gang member, it is not uncommon for the gang to retaliate against law
enforcement officers‖; (3) ―Since late 2007, the Long Beach Police Department
has issued eight Officer Safety Bulletins to the department about potential
retaliation/threats against officers, two of which were directly related to shootings
involving police officers. As recently as January 10, 2011, the department was
notified of graffiti at 5100 Appian Way that was approximately 4 feet high and 6
inches long which read ‗Strike Kill a Cop‘ ‖; and (4) ―Today, in the age of the
internet, knowing an individual‘s name can be the gateway to a world of
information. Public documents are readily accessible on line and can provide
anyone with the home address of an individual, including a police officer. The
address of a police officer in the hands of a gang member, violent offender, or
angry friend, relative, or associate of a person who was shot by a police officer is
of great concern for the personal safety of both the officer and their [sic] family.
Therefore the Long Beach Police Department insists on protecting the identity of
its officers, when those officers are involved in critical incidents, including
shootings, in order to ensure their safety and the safety of their families.‖
I agree with the Union‘s argument. As I explained in Commission on
Peace Officer Standards, ―in 1990, the Legislature amended subdivision (a) of
[Penal Code] section 832.8 by adding [officers‘] ‗home addresses‘ to the list of
2
examples of confidential ‗[p]ersonal data.‘ (Stats. 1990, ch. 264, § 1, p. 1535.)
According to the amendment‘s legislative history, one of the Legislature‘s
purposes in adding ‗home addresses‘ to the list was to protect officers and their
families. (Assem. Com. on Public Safety, Analysis of Sen. Bill 1985 (1989–1990
Reg. Sess.) as amended May, 16, 1990, p. 2.) Given that publicly available
databases on the Internet make it easy to link a name to an address, the release of
an officer‘s name would not seem to pose much, if any, less of a safety risk than
would disclosing an officer‘s home address. (See Frank v. City of Akron (6th Cir.
2002) 290 F.3d 813, 819 [‗Most individuals‘ addresses . . . are readily available on
the Internet‘].) . . . [I]n light of the accessibility of information through the
Internet, it would be entirely ‗feasible‘ for someone hostile toward the police to
use the list of names to locate peace officers‘ addresses in order to ‗harass them‘
or their families. [Citation.] Moreover, in light of the Legislature‘s
acknowledgment of the dangers faced by officers and their families, . . . we
[cannot] simply dismiss this threat as being ‗purely speculative.‘ (See King
County v. Sheehan [(2002) 114 Wash.App. 325, 340] [it is ‗naïve . . . to believe
that police officers who are identified on anti-police web sites . . . by name and
home address . . . could not thereby be placed in danger or subjected to
harassment‘].)‖ (Commission on Peace Officer Standards, supra, 42 Cal.4th at p.
317 (dis. opn. of Chin, J.).) The evidence in the record here amply supports this
analysis.
Nothing in the majority‘s brief discussion of section 6254, subdivision (c),
convinces me otherwise. The majority first asserts that there is a ―serious
question‖ as ―to whether the names of peace officers involved in particular law
enforcement incidents can be characterized as ‗[p]ersonnel . . . or similar files‘ ‖
within the meaning of section 6254, subdivision (c). (Maj. opn., ante, at p. 14.)
However, for reasons I have explained in a previous case, I have no trouble
3
concluding that the names of officers who have been involved in a shooting
constitute ―personnel . . . or similar files‖ under section 6254, subdivision (c).
(See International Federation of Professional and Technical Engineers, Local 21,
AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 350-351 (conc. & dis. opn. of
Chin, J.) (International Federation).)
The majority then moves on to its primary focus: the public‘s interest.
Relying on Commission on Peace Officer Standards, the majority first identifies
the public‘s interest generally in ―the conduct of its peace officers‖ — specifically,
the ― ‗[m]isuse‘ ‖ of their authority — and asserts that, ―when it comes to the
disclosure of a peace officer‘s name,‖ this interest ―outweighs, in most cases, the
officer‘s personal privacy interest.‖ (Maj. opn., ante, at p. 14.) The majority next
asserts that this general public interest ―is particularly great‖ in connection with
―officer-involved shootings‖ because ―such shootings often lead to severe injury
or death.‖ (Maj. opn., ante, at p. 15.) This heightened public interest, the majority
states, ―tips‖ the balance here ―strongly in favor of identity disclosure.‖ (Id. at p.
15.)
The majority‘s discussion is unpersuasive for several reasons. First, the
majority fails to explain how disclosing the name of an officer who has in any way
been ―involved in officer involved shootings‖ — which is what the Times
seeks — provides any information about whether the involved officers
― ‗[m]isuse[d]‘ ‖ their authority. (Maj. opn., ante, at p. 14.) Thus, merely
knowing which officers were ―involved in officer involved shootings‖ does little,
if anything, to advance the public‘s interest in ―the conduct of its peace officers.‖
(Maj. opn., ante, at p. 14.)
Second, the majority‘s assessment of the public‘s interest is inconsistent
with the Legislature‘s and the voters‘ view of that interest. Through the Pitchess
statutes (see maj. opn., ante, at pp. 6-7), the Legislature has precluded the general
4
public from obtaining ―[p]eace officer . . . personnel records‖ or ―information
obtained from these records.‖ (Pen. Code, § 832.7, subd. (a).) It has specified that
this restriction protects records ―relating to‖ (1) an officer‘s ―advancement,
appraisal, or discipline‖ (id., § 832.8, subd. (d)), and (2) ―[c]omplaints, or
investigations of complaints, concerning an event or transaction in which [an
officer] participated, or which he or she perceived, and pertaining to the manner in
which he or she performed his or her duties‖ (id., § 832.8, subd. (e)). It has
authorized law enforcement agencies to ―disseminate data regarding the number,
type, or disposition of complaints . . . made against [their] officers‖ only ―if that
information is in a form which does not identify the individuals involved.‖ (Id.,
§ 832.7, subd. (c).) These provisions clearly express the Legislature’s view
regarding the public‘s interest in discovering whether particular officers have
misused their power or even have been the subject of complaints about their
conduct. The voters have ratified the Legislature‘s view by passing a
constitutional provision that expressly preserves ―statutory procedures governing
discovery or disclosure of information concerning the official performance or
professional qualifications of a peace officer.‖ (Cal. Const., art. I, § 3, subd.
(b)(3).) The majority improperly ignores these expressions of policy by the
Legislature and the voters, and improperly substitutes its own view of policy. As a
court, we have neither prerogative nor power ―to substitute our public policy
judgment‖ for that of the Legislature and the voters. (Thomas v. City of Richmond
(1995) 9 Cal.4th 1154, 1165.)
The majority errs in asserting that Penal Code section 830.10 ―reflects a
legislative policy that, generally, the public has a right to know the identity of an
officer involved in an on-duty shooting.‖ (Maj. opn., ante, at p. 13.) That section
provides: ―Any uniformed peace officer shall wear a badge, nameplate, or other
device which bears clearly on its face the identification number or name of the
5
officer.‖ (Pen. Code, § 830.10.) On its face, the section applies only to
―uniformed‖ officers. (Ibid.) Thus, to the extent it has any relevance to officers
who are not in uniform, it indicates a legislative intent to protect their identities.
Even as to uniformed officers, it fails to support the majority‘s broad conclusion
that the public, ―generally,‖ has a right to know the identity of officers involved in
shootings. (Maj. opn., ante, at p. 13.) Under the section, police departments may
choose not to require their uniformed officers to display their names, and may
instead require them only to display their ―identification number[s].‖ (Pen. Code,
§ 830.10.) Even were the statute to require officers to display their names, a
statute affording the immediate participants in a police encounter access to the
officers‘ names does not reflect a far broader legislative policy that, ―generally, the
public has a right to know the identity of an officer involved in an on-duty
shooting.‖ (Maj. opn., ante, at p. 13.) This conclusion is obvious from the fact
that, as noted above, the Pitchess statutes allow law enforcement agencies to
―disseminate data regarding the number, type, or disposition of complaints . . .
made against [their] officers‖ only ―if that information is in a form which does not
identify the individuals involved.‖ (Pen. Code, § 832.7, subd. (c).) In other
words, the Legislature has precluded release of identifying information generally
to the public even though the names of officers against whom complaints have
been made are known to those who have filed complaints. As the majority
recognized in Commission on Peace Officer Standards, ―the mere fact that
officers‘ names‖ may be displayed on their uniforms does not mean ―that the
information cannot be considered personal or private. (See Department of Defense
v. FLRA (1994) 510 U.S. 487, 500 . . . [‗An individual‘s [privacy] interest in
controlling the dissemination of information regarding personal matters does not
dissolve simply because that information may be available to the public in some
6
form‘].)‖2 (Commission on Peace Officer Standards, supra, 42 Cal.4th at p. 296,
fn. 5.)
Nor do I agree with the majority that, under section 6254, subdivision (f),
―when a shooting by a peace officer occurs during an arrest [citation] or in the
course of responding to a complaint or request for assistance [citation], and when
the officer‘s name is recorded as one of the factual circumstances of the incident,
disclosure of the officer‘s name is generally required.‖ (Maj. opn., ante, at p. 12.)
Section 6254, subdivision (f), generally exempts from disclosure under the CPRA
―[r]ecords of complaints to, or investigations conducted by, . . . any state or local
police agency.‖ As here relevant, it further provides that, ―[n]otwithstanding any
other provision of this subdivision,‖ a law enforcement agency ―shall‖ disclose the
following: (1) ―the factual circumstances surrounding the arrest‖ of each person
the agency arrests (§ 6254, subd. (f)(1); and (2) the ―nature of the response‖ to all
complaints or requests for assistance the agency receives, ―including, to the extent
the information regarding crimes alleged or committed or any other incident
investigated is recorded, . . . the factual circumstances surrounding the crime or
incident‖ (id., subd. (f)(2)). Where one of the specified incidents involves a
2
The majority cites no legislative history to support its view of the
―legislative policy‖ Penal Code section 830.10 ―reflects.‖ (Maj. opn., ante, at p.
13.) The statute derives from its substantively identical predecessor, Penal Code
former section 830.7, which provided: ―Any uniformed peace officer shall wear a
badge, nameplate, or other device which bears clearly on its face the identification
number or name of such officer.‖ (Stats. 1969, ch. 1458, § 1, p. 2978.) In the only
illuminating item of legislative history I could find — a letter to the Governor
urging him to sign the passed bill containing the statute — the bill‘s legislative
author stated that it would ―aid[] morale in that it goes far to halt the
deindividualization of our law enforcement personnel.‖ (Assemblyman John
Miller, letter to Governor Ronald Reagan re Assem. Bill No. 1830 (1969 Reg.
Sess.) Aug. 8, 1969, p. 1.) This letter does not support the majority‘s assertion.
7
shooting, it is not at all clear that the ―factual circumstances surrounding‖ the
incident (id., subd. (f)(1), (2)) include the names of officers involved in the
shooting. The majority cites, and I have found, no case supporting that view.
Moreover, the language stating that these disclosure provisions apply
―[n]otwithstanding any other provision of this subdivision‖ (id., subd. (f), italics
added) indicates that the section‘s disclosure requirement does not override the
confidentiality provisions found in other statutes. Our courts of appeal have so
construed the statute. (County of Los Angeles v. Superior Court (1993) 18
Cal.App.4th 588, 600 [―we cannot construe section 6254, subdivision (f), to
require‖ disclosure of ―law enforcement information‖ the Pitchess statutes make
confidential].) Finally, the statute itself authorizes nondisclosure ―to the extent
that disclosure of a particular item of information would endanger the safety of a
person involved in an investigation or would endanger the successful completion
of the investigation or a related investigation.‖ (§ 6254, subd. (f).) Because, in
my view, this would include the names of officers involved in shootings, I do not
agree that, even under the circumstances the majority posits, section 6254,
subdivision (f), ―generally require[s]‖ disclosure of the information the Times
seeks.3 (Maj. opn., ante, at p. 12.)
3
The majority asserts that the disclosure exemption of section 6254,
subdivision (f), does not apply because the requested information comes from a
source other than ―the records of any administrative or criminal investigation‖ of
officer-involved shootings (maj. opn., ante, at p. 15), perhaps ―the initial incident
reports‖ of such shootings (maj. opn., ante, at p. 11). The appellate record offers
no basis for the majority‘s speculation regarding the source of the requested
information, as to either the Zerby shooting or any of the other officer-involved
shootings that occurred during the six-year period the request identifies. Nor does
the majority offer any legal basis for construing the broadly worded phrase
―records relating to . . . [¶] . . . [¶] . . . [e]mployee . . . appraisal[] or discipline,‖
which defines one category of confidential personnel records under Penal Code
(footnote continued on next page)
8
The majority also makes several errors in evaluating the other side of the
balance: the interests of the officers in nondisclosure. Although relying
principally on a heightened public interest in officer-involved shootings, the
majority fails to consider or even acknowledge the officer’s heightened privacy
and safety interests in such cases. In this regard, Commission on Peace Officer
Standards, on which the majority principally relies (maj. opn., ante, at pp. 14-15),
actually supports the Union. There, in holding that ―the typical peace officer has
[no] more than an insubstantial privacy interest in the fact of his or her
employment as an officer‖ (Commission on Peace Officer Standards, supra, 42
Cal.4th at p. 300), the majority reasoned that the fact of employment is ―innocuous
information‖ (id. at p. 302) because ―it would not reveal [the officer‘s]
involvement in any particular case‖ (id. at p. 302, fn. 12, italics added). In this
regard, the majority reasoned, disclosure of basic employment information is
different from the disclosure sought in Stone v. F.B.I. (D.D.C. 1990) 727 F.Supp.
662 (Stone): the names of FBI agents ―who participated in the investigation of the
assassination of Robert F. Kennedy.‖ (Commission on Peace Officer Standards,
supra, 42 Cal.4th at p. 302, fn. 12.) In Stone, ― ‗[w]hat could reasonably be
expected to constitute an unwarranted invasion of an agent‘s privacy is not that he
or she is revealed as an FBI agent but that he or she is named as an FBI agent who
participated in the RFK investigation.‘ [Citation.]‖ (Commission on Peace
Officer Standards, supra, at p. 302, fn. 12.) The ― ‗concern is not with the
(footnote continued from previous page)
section 832.8, subdivision (d), to apply narrowly ―only‖ to ―the records generated
in connection with‖ officer appraisal or discipline (maj. opn., ante, at pp. 11-12).
Had the Legislature intended to so limit the scope of confidentiality under this
section, it easily could have used the majority‘s far narrower phrase.
9
identifying information per se, but with the connection between such information
and some other detail — a statement, an event, or otherwise — which the
individual would not wish to be publicly disclosed.‘ ‖ (Ibid., quoting Halloran v.
Veterans Admin. (5th Cir. 1989) 874 F.2d 315, 321.) Here, the information the
Times seeks would reveal the participation of the named officers in ―particular
case[s]‖ and would reveal their connection to an event — a shooting — they may
― ‗not wish to be publicly disclosed.‘ ‖ (Commission on Peace Officer Standards,
supra, at p. 302, fn. 12.) As the majority opinion in Commission on Peace Officer
Standards establishes, the officers therefore have a heightened privacy interest in
nondisclosure. Moreover, the potentially incendiary nature of the information the
Times seeks — an officer‘s involvement in a shooting — further heightens an
officer‘s already elevated privacy interest in not being linked to ―particular
case[s].‖ (Ibid.) The majority errs in failing even to acknowledge this heighted
interest.
Finally, the majority‘s conclusion that the Union‘s claim under section
6254, subdivision (c), fails for lack of a ―particularized showing‖ regarding the
need for confidentiality (maj. opn., ante, at p. 15) is both erroneous and
inconsistent with our prior decisions. The majority acknowledges both the
existence and validity of the ―safety concerns of officers who fear retaliation from
angry members of the community after an officer-involved shooting.‖ (Maj. opn.,
ante, at p. 17.) It also acknowledges that the record contains evidence of
― ‗potential retaliation/threats‘ against officers involved in shootings.‖ (Maj. opn.,
ante, at p. 16.) However, the majority finds this evidence too ―vague‖ and insists
that more is required; as to each officer whose name is to be withheld, there must
be evidence to ―establish‖ a ―specific danger‖ to the officer or to the members of
the officer‘s family. (Maj. opn., ante, at p. 16.)
10
The specificity of proof the majority demands is inconsistent with our
decision in Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325 (Times
Mirror). There, we held that, because of safety concerns, the Governor of
California had properly refused to disclose his daily, weekly, and monthly
appointment calendars and schedules. (Id. at pp. 1329, 1346-1347.) The only
evidence supporting our conclusion was the declaration of the Governor‘s security
director, which stated in the most general terms that disclosing this information
― ‗would seriously impair [his] . . . ability to assure the Governor‘s security, and
would constitute a potential threat to the Governor‘s safety, because the
information . . . will enable the reader to know in advance and with relative
precision when and where the Governor may be found, those persons who will be
with him, and when he will be alone.‘ ‖ (Id. at p. 1346, italics added.) Based on
this evidence of a ― ‗potential threat to the Governor‘s safety‘ ‖ (ibid.), and
without requiring evidence of a particular or ―specific‖ threat (maj. opn., ante, at
p. 16), we concluded that, even as to ―outdated calendars and schedules,‖
nondisclosure was justified because ―it is plausible to believe that an individual
intent on doing harm [to the Governor] could use such information to discern
activity patterns of the Governor and identify areas of particular vulnerability.‖
(Times Mirror, supra, at p. 1346.) Here, based on the Cox declaration, it is
plausible to believe there are individuals, intent on doing harm to police officers in
retaliation for their involvement in a shooting, who could use the requested
information to exact revenge on the officers or members of their families. The
―showing‖ in this case regarding safety concerns is certainly no more ―vague,‖ and
11
is at least as, if not more, ―particularized‖ (maj. opn., ante, at p. 15), than the
showing we found sufficient in Times Mirror.4
The majority does not contend otherwise or explain why Times Mirror is
inapplicable. Instead, in applying a different and far stricter standard, it simply
ignores Times Mirror. It fails to explain why police officers and their family
members are entitled to less protection than the Governor. Surely, their lives are
not worth less. Nor is it less ―plausible to believe‖ there are ―individual[s] intent
on doing harm‖ to police officers involved in shootings than it is to believe there
are ―individual[s] intent on doing harm‖ to the Governor. (Times Mirror, supra,
53 Cal.3d at p. 1346.) On the contrary, as already noted, the majority
acknowledges both the existence and validity of the ―safety concerns of officers
who fear retaliation from angry members of the community after an officer-
involved shooting.‖ (Maj. opn., ante, at p. 17.)
Contrary to the majority‘s suggestion (maj. opn., ante, at pp. 14-15),
Commission on Peace Officer Standards and International Federation are
consistent with, and supportive of, this analysis. In neither case was there any
evidence submitted regarding the alleged safety concerns, a circumstance the court
stressed in refusing to apply a disclosure exemption. (Commission on Peace
Officer Standards, supra, 42 Cal.4th at p. 302; International Federation, supra, 42
4
Moreover, although there is a greater showing in this case regarding safety
than in Times Mirror, the showing needed to justify nondisclosure here arguably is
less than the showing that was needed in Times Mirror. Nondisclosure is proper
under section 6254, subdivision (c), upon a showing that disclosure ―would
constitute an unwarranted invasion of personal privacy.‖ In Times Mirror, we
held that nondisclosure was proper under section 6255, which requires a showing
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.‖ (Italics added; see Times Mirror, supra, 53 Cal.3d at pp. 1346-1347.)
12
Cal.4th at pp. 337-338.) Notably, after stating that ― ‗ [a] mere assertion of
possible endangerment‘ is insufficient to justify nondisclosure,‖ the majority in
Commission on Peace Officer Standards cited Times Mirror as a case in which
disclosure was justified because the evidence — the ―declaration of [the]
Governor‘s security director‖ — ―supported [the] conclusion that release of his
schedules would present a potential security threat.‖ (Commission on Peace
Officer Standards, supra, at p. 302.) As earlier explained, here, even more than in
Times Mirror, evidence regarding the dangers of disclosure was submitted.
Moreover, in Commission on Peace Officer Standards, the majority held that, on
remand, nondisclosure as to officers in certain ―categories‖ could be justified
―because the safety or efficacy of‖ officers in those categories ―would be
jeopardized by disclosure.‖ (Commission on Peace Officer Standards, supra, 42
Cal.4th at p. 284.) The majority in Commission on Peace Officer Standards
identified one such category: officers ―operating undercover.‖ (Id. at p. 301.)
The Times‘s broad request for the names of all officers ―involved in‖ shootings
from January 1, 2005, until December 11, 2010, surely includes such officers.
Moreover, the evidence in the record here establishes another category of officers
whose safety would be jeopardized by disclosure: those who have been involved
in a shooting.
Contrary to the majority‘s suggestion, there is no basis for excluding from
this category officers who, in using their weapons, ―acted in a heroic manner that
was unlikely to provoke retaliation.‖ (Maj. opn., ante, at p. 16.) The majority
asserts that safety is not ―an issue‖ for such officers. (Maj. opn., ante, at p. 16.)
But the majority fails to explain how to distinguish between heroic acts that are
likely to provoke retaliation and those that are not. And it is naïve to believe that
the desire for revenge of friends, family members, and gang associates of those
shot by police will be reduced, much less eliminated, by the fact that the officers
13
acted heroically. Indeed, the majority‘s bald assertion will surely come as
surprising news to the many officers who, having heroically used their weapons in
confronting gang-related crime, face retaliation from other gang members. It
simply is not true, as the majority asserts, that officer safety is ―not . . . an issue‖
whenever a shooting may be characterized as ―heroic‖ and ―unlikely to provoke
retaliation.‖ (Maj. opn., ante, at p. 16.) Of course, as to individual officers who
do not perceive a safety threat to themselves or their families, and who do not
oppose public recognition of their heroism, section 6254, subdivision (c), would
not prevent disclosure. Releasing an officer‘s name under those circumstances
would not constitute ―an unwarranted invasion of personal privacy.‖ (Ibid.)
Finally, there are good reasons for not requiring, as to each officer whose
name is to be withheld, evidence of an actual and specific threat to the officer or
the members of his or her family. Where, as here, the disclosure request covers all
officer-involved shootings during a six-year period, requiring such individualized
proof will impose an obvious and substantial burden on law enforcement agencies
that want to protect their officers.5 More importantly, as the Union observes,
―killers do not usually announce their intentions in advance.‖ Thus, in most cases,
although the threat to officer safety is real, the kind of evidence the majority
demands is not available. Because the lives of our officers and their families are at
stake, I would not require a law enforcement agency to wait until there is a
specific threat — or worse, an actual attack — before allowing it to withhold
5
For example, according to reported statistics, the Los Angeles Police
Department averaged 70 officer-involved shootings per year for the years 2005-
2008. (L.A. Police Dept., Use of Force Annual Report, p. 16
<http://www.lapdonline.org/assets/pdf/2009YearEndReportFinal.pdf> as of May
29, 2014.) In 42 officer-involved shootings internally reviewed in 2009 for
compliance with department policy, ―[t]here were 278 substantially involved
officers,‖ 85 of whom ―discharged their firearms.‖ (Id. at p. 19.)
14
information that puts its officers and their families at risk. Absent a showing of
some greater public need for the information, we should allow law enforcement
agencies to protect the very officers who are out there every day protecting us.
They deserve at least that much for their brave service.
I therefore dissent.6
CHIN, J.
6
Given my conclusion, I do not further address the majority‘s analysis
regarding the applicability of the exemptions set forth in Government Code
section 6255 and Penal Code sections 832.7 and 832.8.
15
See last page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Long Beach Police Officers Association v. City of Long Beach
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 203 Cal.App.4th 292
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S200872Date Filed: May 29, 2014
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Patrick T. Madden
__________________________________________________________________________________
Counsel:
Law Offices of James E. Trott, James E. Trott and Larry J. Roberts for Plaintiff and Appellant.The Law Offices of Charles Goldwasser, Charles A. Goldwasser, David A. Goldwasser and Theodore H.
Dokko for Association of Orange County Deputy Sheriffs, Santa Ana Police Officers Association and
Santa Barbara Police Officers Association as Amici Curiae on behalf of Plaintiff and Appellant.
Crabbe, Brown & James, Larry H. James and Christina L. Corl for The National Fraternal Order of Police
as Amicus Curiae on behalf of Plaintiff and Appellant.
Bobbitt, Pinckard & Fields, Richard L. Pinckard and Charles B. Walker for Police Officers Research
Association of California as Amicus Curiae on behalf of Plaintiff and Appellant.
Stone Busailah, Michael P. Stone, Muna Busailah and Robert Rabe for Los Angeles Police Protective
League and Riverside Sheriffs‘ Association, Legal Defense Trust as Amici Curiae on behalf of Plaintiff and
Appellant.
Robert E. Shannon, City Attorney, and Christina L. Checel, Deputy City Attorney, for Defendants and
Appellants.
Liebert Cassidy Whitmore, Richard M. Kreisler and David A. Urban for Los Angeles County Police
Chiefs‘ Association as Amicus Curiae on behalf of Defendants and Appellants.
Karlene W. Goller; Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox and Jeff Glasser for Real
Party in Interest and Respondent.
Peter Bibring; Michael T. Risher; and David Blair-Loy for ACLU Foundation of Southern California,
ACLU Foundation of Northern California and ACLU Foundation of San Diego & Imperial Counties as
Amici Curiae on behalf of Real Party in Interest and Respondent.
1
Page 2 – S200872 – counsel continued
Counsel:
Sheppard, Mullin, Richter & Hampton and Guylyn R. Cummins for California Newspaper Publishers
Association, California Broadcasters Association, Newspaper Association of America, National Press
Photographers Association, Associated Press, CBS Broadcasting, Inc., Freedom Communications, Inc.,
Gannett Co., Inc., Hearst Corporation, The New York Times Company, Press Democrat, The Press-
Enterprise, San Diego Union-Tribune, The McClatchy Company, First Amendment Coalition, First
Amendment Project, Californians Aware, Citizen Media Law Project, the Reporters Committee for
Freedom of the Press and Newspaper Guild as Amici Curiae on behalf of Real Party in Interest and
Respondent.
Levine Sullivan Koch & Schulz, James E. Grossberg, Lee Levine, Jeanette Melendez Bead; Terry Francke;
Mark Powers; James Ewert; Mark H. Jackson, Jason P. Conti, Gail C. Gove; David M. Giles; Peter Scheer;
Eve B. Burton, Jonathan R. Donnellan; Karole Morgan-Prager, Stephen J. Burns; Denise Leary, Ashley
Messenger; Mickey H. Osterreicher; Amanda M. Leith; Covington & Burling, Kurt Wimmer; Bruce D.
Brown, Gregg P. Leslie and Mark R. Caramanica for Californians Aware, California Broadcasters
Association, California Newspaper Publishers Association, Dow Jones & Company, Inc., The E.W. Scripps
Company, First Amendment Coalition, Hearst Corporation, The McClatchy Company, National Press
Photographers Association, National Public Radio, Inc. NBCUniversal Media, LLC, Newspaper
Association of America and the Reporters Committee for Freedom of the Press as Amici Curiae on behalf
of Real Party in Interest and Respondent.
2
Counsel who argued in Supreme Court (not intended for publication with opinion):
James E. TrottLaw Offices of James E. Trott
19665 Surfbreaker Lane
Huntington Beach, CA 92648
(714) 596-8995
Christina L. Checel
Deputy City Attorney
333 West Ocean Boulevard, 11th Floor
Long Beach, CA 90802
(562) 570-2200
David A. Urban
Liebert Cassidy Whitmore
6033 W. Century Boulevard, Suite 500
Los Angeles, CA 90045
(310) 981-2000
Kelli L. Sager
Davis Wright Tremaine
865 S. Figueroa Street ,Suite 2400
Los Angeles, CA 90017-2566
(213) 633-6800
3
Petition for review after the Court of Appeal affirmed an order denying a request for a preliminary injunction. This case presents the following issue: Are the names of police officers involved in on-duty shooting incidents subject to disclosure under the California Public Records Act?
| Date: | Citation: | Docket Number: |
| Thu, 05/29/2014 | 59 Cal.4th 59, 172 Cal. Rptr. 3d 56, 325 P.3d 460 | S200872 |
| Opinion Authors | |
| Opinion | Justice Joyce L. Kennard |
| Dissent | Justice Ming W. Chin |
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| Dec 31, 1969 Annotated by Teresa Reed | FACTS On December 12, 2010, two City of Long Beach police officers shot and killed Douglas Zerby. They believed that he was pointing a gun at them; in fact, the object was a garden hose. Subsequently, reporter Richard Winton of the Los Angeles Times made a request under the California Public Records Act (Gov. Code § 6250 et seq.) of the Long Beach City Attorney’s Office for the names of the Long Beach police officers involved in all officer-involved shootings during the six-year period prior to the Zerby shooting. PROCEDURAL HISTORY The Long Beach Police Officers Association (the Union), supported by the City, filed a complaint in the California superior court to enjoin the City from disclosing the information sought by the Times. The superior court issued a temporary restraining order prohibiting the City from disclosing the names of the officers to the Times and permitted the Times to intervene in the action. However, after continuing the case to a later date, the superior court denied the Union’s request for a preliminary or permanent injunction “without prejudice” to a renewed request demonstrating that releasing the names of particular officers would create a likelihood of harm. The superior court also dissolved the temporary restraining order. The Union and the City appealed this ruling without success. The Supreme Court granted their petitions for review. ISSUES The California Public Records Act, enacted in 1968, grants access to public records held by state and local agencies, subject to certain exceptions. The Times argued that disclosure of the police officers involved in the Zerby shooting and other officer-involved shootings between January 1, 2005, and December 11, 2010, was required under that Act. The Union and the City marshaled numerous exemptions to the Act in support of their position, particularly Penal Code Section 832.7(a), which protects a peace officer’s “personnel records” from disclosure, and Penal Code Section 832.8(d), which defines “personnel records” as including records of employee “appraisal[] or discipline.” HOLDING The Supreme Court affirmed the appellate court’s judgment that the police officers’ names must be disclosed to the Los Angeles Times. The particularized showing necessary to outweigh the public’s interest in disclosure was not made here, although the Supreme Court approved the trial court’s denial of injunctive relief without prejudice to any later evidentiary showing that disclosing a particular officer’s name would compromise that officer’s safety or the safety of the officer’s family. ANALYSIS A. The Union and the City argued that Penal Code Section 832.7(a), protecting a peace officer’s “personnel records,” and Penal Code Section 832.8(d), defining “personnel records” as including records of employee “appraisal[] or discipline,” protected the officers’ names from disclosure. (Those statutes, known as the Pitchess statutes, were enacted in reaction to Pitchess v. Superior Court, 11 Cal. 3d 531 (1974), a California Supreme Court case that allowed a defendant charged with battery on four sheriff’s deputies to discover from a peace officer’s employer the existence of previous complaints about the officer’s use of excessive force.) The Union and the City pointed to case law stating that “[t]he legislative concern [in adopting sections 832.7 and 832.8] appears to have been with linking a named officer to the private or sensitive information listed in section 832.8.” Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal. 4th 278, 295 (2007). The court determined that the term “personnel records” did not include every record that might be considered for purposes of an officer’s appraisal or discipline, and therefore did not cover records at issue in the case, such as the initial incident reports of an on-duty shooting. The court relied in part on Government Code Section 6254(f), which it found to require the disclosure of an officer’s name when recorded as one of the “factual circumstances” of a shooting by a peace officer during an arrest or in the course of responding to a complaint. The court viewed this provision as reflecting that the California Legislature drew a distinction between records of factual information about an incident (which generally must be disclosed) and records generated as part of an internal investigation of an officer in connection with the incident (which generally are confidential). The court found additional support for its conclusion in Commission on Peace Officer Standards, which limited the personnel records exemption to the categories of information that are expressly “enumerated” in Penal Code Section 832.8. The court also pointed to Penal Code Section 830.10, which requires uniformed officers to display their name or identification number, showing that the public generally has a right to know the identity of an officer involved in an on-duty shooting. Finally, the court distinguished relevant precedents, namely Copley Press, Inc. v. Superior Court, 39 Cal. 4th 1272 (2006), as prohibiting the disclosure of records that pertained explicitly to termination proceedings and thereby would have “linked” an officer’s name to “private or sensitive” personnel matters. Commission on Peace Officer Standards, 42 Cal. 4th at 295. Here, by contrast, disclosing the names of officers involved in various shootings would not imply that those shootings resulted in disciplinary action against the officers, and would not link those names to any confidential personnel matters or other protected information. B. The court found that Government Code Section 6254(c), which protects “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy,” did not extend to this case. First, there was a serious question as to whether the names of peace officers in this case were “[p]ersonnel . . . or similar files.” Second, the public’s significant interest in the conduct of its peace officers usually outweighs an officer’s personal privacy interest. In fact, the court found that the general public interest was particularly great in connection with officer-involved shootings because such shootings often lead to severe injury or death. Here, in the absence of any particularized showing of a peculiarly strong privacy interest, the public interest trumped. C. Finally, the court found that Government Code Section 6255(a), which contains a “catchall exemption” that allows a public agency to “justify withholding any record by demonstrating 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,” did not extend to this case. Because the balance of interests favored disclosing the names of peace officers involved in on-duty shootings, disclosure was required in the absence of a specific safety concern regarding any particular officer. DISSENTING OPINION BY JUSTICE CHIN Justice Chin disagreed with the majority’s conclusion that the requested information was not exempt from disclosure under Section 6254(c), which exempts from disclosure “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy,”. As a threshold matter, Justice Chin had “no trouble concluding” under International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal.4th 319 (2007), that the names of officers who have been involved in a shooting constitute “personnel…or similar files.” Moreover, Justice Chin disagreed with the majority’s assessment of the public interest. First, disclosure of the names of the officers involved in shootings would not actually satisfy the public’s interest in knowing whether specific officers had misused their authority. Second, Justice Chin viewed California Penal Code Sections 832.7 and 832.8 as reflecting the Legislature’s view that the public’s interest in officer conduct was limited. A similar perspective by California voters was evinced by the passage of a constitutional provision expressly preserving “statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer,” Cal. Const., Art. I, § 3(b)(3). Justice Chin interpreted California Penal Code Section 830.10 as merely a technical requirement of identification display, applicable only to uniformed officers, and not, contrary to the majority’s view, evidence that officer’s names ought generally be disclosed. Justice Chin also disagreed with the majority’s claim that Section 6254(f) clearly establishes that law enforcement agencies “shall” disclose the names of officers involved in a shooting as a “factual circumstance[] surrounding” a shooting; rather, the Justice interpreted the statute as protecting the names of officers from disclosure as "information [that] would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation" under that provision. Finally, Justice Chin criticized the majority’s assessment of the officers' interest in nondisclosure. Because the information the Times seeks would reveal the participation of the named officers in particular cases as well as their connection to a shooting that they may not wish to be publicly disclosed, the officers have a heightened privacy interest in nondisclosure under Commission on Peace Officer Standards. Justice Chin also rejected the majority’s claim that Section 6254(c) requires specificity of proof as to the need for confidentiality, finding it inconsistent with the court’s precedent in Times Mirror Co. v. Superior Court, 53 Cal.3d 1325 (1991) (holding that nondisclosure of the Governor’s schedule was justified based on a potential threat to the Governor’s safety). Because the majority acknowledged the existence and validity of the safety concerns of officers who fear retaliation from the community, the Times Mirror standard was satisfied. The requirement of individualized threat was also flawed because it created an undue burden for law enforcement agencies. TAGS California Public Records Act, Douglas Zerby, Los Angeles Times, California Government Code § 6250, California Government Code § 6254(c), California Government Code § 6254(f), California Government Code § 6255(a), California Penal Code § 830.10, California Penal Code § 832.7, California Penal Code § 832.8, Pitchess statutes, newspaper, media, investigation, identification, personnel records, privacy, police officers, disclosure, public interest, officer-involved shootings, police shootings, evidentiary showing, injunctive relief, denial without prejudice. Annotation by Tess Reed, Stanford Law School Class of 2015. |
