*1 S128603. Aug. [No. 2006.] PRESS, INC., Petitioner,
THE COPLEY COUNTY, THE SUPERIOR COURT OF SAN DIEGO Respondent; al., DIEGO et Real Parties in Interest. COUNTY OF SAN *6 Counsel Fuson, Jr., Fanshaw, Wahrenbrock;
Harold W. Judith L. Scott A. Sheppard Cummins, Mullin Richter & R. Robert J. L. Hampton, Guylyn Stumpf, Gary Bostwick and Jean-Paul for Jassy Petitioner. Noone, Gwinn, M. Assistant (San City Anita Diego), City Attorney
Casey of San Diego for Attorney, City City and James M. Attorney, Chapin, Deputy behalf of Amici Curiae on Civil Service Commission as of San City Diego Petitioner. Schwartz; Schlosser, Schwartz, Mark Alan L. Amitai of Amitai
Law Offices Budd, David Elvira Cacciavillani and Jordan C. Peter Schlosberg; Eliasberg; California, the ACLU Northern Foundation of for the ACLU Blair-Loy & Foundation of San Diego California and the ACLU Foundation of Southern on behalf of Petitioner. Counties as Amici Curiae Imperial IV, Tremaine, Susan E. Seager, Kelli Alonzo Wickers Sager, Wright Davis Starr; Coleman, Tomlin; Burke; David S. Russell F. R. David Thomas Ewert; Newton, Scheer; Glasser, Jr.; James W. Peter Thomas W. Charles J. Schulz, Francke; Eve Grossberg; & James E. Levine Sullivan Koch Terry Goller; Bums; Donnellan; DLA Burton, J. Karlene W. Stephen Jonathan R. McCraw; Chadwick; A. Lucy David James M. Cary, Rudnick Gray Piper Los Times Angeles E. Mirell for Douglas Loeb & Loeb Dalglish; Communications, Inc., LLC, as The business doing Freedom Communications Press, The The Associated the Hearst Corporation, Orange County Register, Californian, The McClatchy The New York Times Company, Bakersfield L.P., News, Inc., Bloomberg The San Jose Mercury Belo Corp., Company, Association, of Professional Society Publishers California Newspaper for Journalists, Committee The Reporters Greater Los Angeles Chapter, Coalition, Press, Californians Amendment Freedom of the California First on behalf of as Amici Curiae Chemerinsky and Professor Erwin Aware Petitioner. Board as California State Personnel Bmce A. for Mongross
Elise S. Rose and on behalf of Petitioner. Amicus Curiae
No appearance Respondent. Sansone, Counsel, County William H. Songer, Deputy John J. County Counsel, Diego and San Diego in Interest San County for Real Parties Civil Service Commission. County Pinckard, Pinckard, Bobbitt, M. Bradley Richard L. Everett L.
Bobbitt & Sheriffs’ Diego Real Parties in Interest San S. Buechler for Fields and Julie Officers’ Association. and San Police Diego Association Smith & Ramirez Carroll, M. Gary Messing; Ivey, & McDonough, Burdick Andre; Association Research for Peace Officers and Jean-Claude Parties in behalf of Real Fund Amicus Curiae on Defense Legal California’s Police Officers’ and San Diego Sheriffs’ Association Interest San Diego Association.
Opinion extent,
CHIN, J. review in this case to consider the if granted any, We (CPRA Act) (Gov. which the California Public Records Act et disclosure to a of the seq.) County requires newspaper publisher Commission (Commission) of San Civil Service to a Diego relating peace officer’s administrative of a matter. The Court of appeal Appeal held that the trial court erred in the disclosure denying entirety, its request records, and ordered the Commission to disclose the including requested officer, name of the redacted to exclude certain written material file maintained the officer’s “employing agency,” 832.8,1 term is used in Penal Code section and oral is a testimony recitation from that material. We find that the Court of read the term Appeal too “employing agency” We therefore reverse the narrowly. Court of Appeal’s judgment. Background
Factual and Procedural Press, The January Inc. Copley which the San (Copley), publishes Union-Tribune Diego learned that the newspaper, Commission had scheduled 2003-0003, a closed in case No. hearing which a sheriff of San deputy (sometimes Diego County hereafter referred to as was County) appealing from a termination notice. access to the Copley requested but the hearing, Commission denied the After the request. filed appeal’s completion, Copley several CPRA with the requests Commission for disclosure of asking any with, to, documents filed submitted or created Commission concerning the appeal (including decision) findings and recordings tape records, hearing. Commission withheld most of its including deputy’s name, disclosure asserting under Government Code section exemptions (c) (k). subdivisions then filed in the
Copley court a for a writ of mandate and superior petition relief, complaint declaratory injunctive access to the remain- seeking records and a ing declaration that the Commission must hold public hearings unless closure is otherwise justified law. With the court’s permission, San Police Diego Officers Association and the San Sheriffs’ Diego County 14, 2003, (interveners) Association intervened. On the trial May court denied relief, San Police Diego City Assn. v. San Diego Civil Service citing Officers Com. (SDPOA) Cal.App.4th sections 832.7 and 832.8. decision,
Shortly after the trial court filed its filed two more CPRA with the Commission for all requests asking documents regarding 1 All further statutory unlabeled references are to the Penal Code. *8 of a number the Commission provided
“in unredacted form.”2 response, documents, cited the termination order—which including additional facts each ground—the and outlined the supporting for grounds discipline recommendation Commission a stipulation that the accept officer’s hearing of the which meeting during and the minutes appeal, disposing documents, to those According the recommendation. Commission approved to arrest a suspect based on the failure deputy’s the termination order was so, failure cause to do incident having probable a domestic violence despite incident, and dishonesty documenting a written report to prepare and injury that the victim bore no signs in the falsely indicating patrol log voluntarily on arrival.” In the stipulation, deputy was “gone suspect withdrew and the sheriff’s department and withdrew resigned appeal, “termi- exit status to to agreed change deputy’s termination action out” the untruthfulness mutual consent” and to “line nated—resignation by charge.
Unsatisfied, Court of writ of mandate with the filed a petition It order of 2003. asked May relief from the trial court’s seeking Appeal and all disclose the name order the Commission to deputy’s for an requiring evidence, documents, It also from the appeal. requested audiotapes hearing access to the the Commission’s denial of appeal declaration that unlawful, and an injunction materials to disclose all were hearing its failure denials of access. future precluding disclosure of the relief. Regarding
The Court of granted partial Appeal records, Commission’s first held that the confidentiality provisions the court CPRA through” be into the Penal Code section 832.7 “should imported (k), which Code section provides Government “[r]ecords, the disclosure of which not disclosure of CPRA does require law, not federal or state but including, or prohibited pursuant exempted to, the Evidence Code relating privilege.” limited provisions “confidentiality section 832.7’s reasoned that Penal Code next Appeal it Penal Code has a fundamental limitation 832.8]: provision [under officer,” employing peace to files maintained applies file or oral i.e., officer’s maintained in the peace personnel “written material Thus, it “does not in that file.” a recitation from material that is testimony than of which is other officer the source to information about peace apply name, if even under the individual’s file maintained agency’s the employing “[testimony file.” It does not apply in that that information is duplicated events, not maintained or from documents witness to a percipient to or be identical may information file . . . even though “that were not requests was to obtain documents “purpose” for these Copley’s stated relating all documents requests” and “to make sure [it had] the time of earlier] available at [its “going was to release.” to the case that” the Commission information file.” It also does apply in the personnel
duplicative file maintained “added to the material from the that is thus concluded that insofar The Court of agency.” Appeal employing *9 file “are not documents from personnel the Commission’s records as file,” “are outside the definitional in a they recited from documents a CPRA request section limitations to applicable [and] [Penal Code] 6254,] Code section not be denied under for those records may [Government (k)’s ‘the disclosure of which is exempted subdivision for records exemption to’ section 832.7.” or prohibited pursuant to the Commis- reject
The Court of similar rationale” Appeal applied “[a] 6254, (c), which reliance Code section sion’s on Government medical, files, or similar the disclosure from disclosure “[personnel, exempts an invasion of This provi- of which would constitute unwarranted privacy.” sion, held, that “is within the the Court of to information only Appeal applies i.e., 832.8,” Code that it be of a definitional limitation of Penal section part Thus, “file maintained ... the Court of agency.” employing [the officer’s] held that the Commission had “erred on by relying Appeal [Government 6254, (c) (k) CPRA subdivisions reject Copley’s request Code] in the trial court to order It ordered issuance of a writ entirety.” directing 2003-0003, the “to Case No. Commission release its records appeal officer, redacted to exclude information name of the including within the limited Penal as defined ambit of Code sections 832.7 opinion.”3 [the court’s] We interveners’ for review. granted petition
Discussion 1968, In enacted the CPRA “for Legislature purpose freedom members of the access to increasing of information by giving public (Filarsky information in the agencies. possession public [Citation.]” 28 Cal.4th 194].) This evident from the first in which very Act’s purpose provision, “the . . . declares that access to information Legislature concerning conduct of the business is a fundamental and necessary right people’s Code, (Gov. To this purpose, this state.” every person implement § at all times the Act records are provides “[p]ublic open inspection has a the office of the state or local agency every person hours during Code, record, (Gov. hereafter as right inspect any public except provided.” “in (a).) subd. The term records” is defined to broadly “[p]ublic § information clude . . . to the conduct of the relating any writing containing appeal and settled the matter deputy Because the sheriff withdrew administrative hearing, Appeal the Court of declined to decide whether stipulation without hearings may public. Commission close such to the owned, used, or retained state or local by any business public’s prepared, Code, (Gov. form or characteristics.” agency regardless physical § “ board, (e).) subd. The term includes a ... agency’ county ‘[l]ocal Code, (Gov. (a).) Under these commission or thereof.” § definitions, of San the Commission and the San County Diego, Diego Sheriff’s are all local under the CPRA and County agencies Department records; all do not requested appear qualify public parties contend otherwise of access to records under the CPRA is not absolute. right CPRA, this also enacting Legislature, although recognizing right, “mindful declared that it of individuals to right was expressly privacy.” (Gov. declaration at the beginning express policy *10 the Act as well as concern for individual “bespeaks legislative privacy (Black Panther v. Kehoe Party 645, (1974) 42 disclosure.” 652 Cal.App.3d (Kehoe).) declaration, of this judicial “In Cal.Rptr. spirit [117 decisions the Act to balance the to access to right seek interpreting public information, need, need, or to confidential lack of government’s preserve (American Civil and the to ity, right individual’s privacy. [Citations.]” Liberties Union Foundation v. Deukmejian 440, (1982) 32 Cal.3d 447 235, 822].) Cal.Rptr.
“The same dual concern” and the Legislature for disclosure privacy stated in Government Code section 6250 throughout “appears [A]ct.” (Kehoe, supra, above, As noted Government Code Cal.App.3d 6253, (a), section subdivision provides inspection public follow, hereafter In the the Act states a “except provided.” provisions number to to refuse disclose exemptions permit government agencies Code, (Gov. 6254-6255.) certain “In these records. public large part, §§ are to whose data or designed exemptions protect privacy persons (Kehoe, come into documents governmental possession.” 652.) A to disclose qualifying agency refusing public record must decision that the record ... “by demonstrating “justify” under” one of the CPRA’s ... or exempt “express [exemption] provisions that on the facts of the case the interest served particular public the record interest served disclo outweighs disclosing clearly Code, 6255, (a).) (Gov. sure of the record.” subd. § Commission The CPRA relied on here are in Government exemptions 6254, (c) (k). Code section subdivisions We must decide whether either “[w]riting” enough tape be to include a appears The Act’s definition of a broad Code, (See (g) [“every recording upon ... means of recording hearing. of a Gov. § communication”].) any tangible thing any form to withhold certain the Commission’s decision
of these justifies exemptions this case. records regarding disciplinary appeal Code section discuss Government Because the primarily parties “[rjecords, which (k), turn first to that exemption, applies subdivision we to federal or state pursuant the disclosure of which is exempted prohibited to, law, Code relating of the Evidence but not limited including, provisions “is not this exemption As is from the statutory language, evident privilege.” estab It other prohibitions an independent exemption. merely incorporates (CBS, Inc. Block Cal.3d lished law. [Citations.]” an article to the 470].) In added Legislature statutes that over 500 “listing] describing]” provide CPRA specifically 6254, subdivi Government Code section through disclosure exemptions id., Code, 6275; 6276-6276.48.) Among also (k). (Gov. sion see § §§ (Gov. statutes are 832.7 and Penal Code.” listed “[s]ections 6276.34.) (a), that certain provides relevant part, and “information obtained from officer or custodial officer” records “[p]eace be disclosed in criminal these records are confidential shall not [] Sections 1043 and 1046 of civil by discovery pursuant proceeding except of records. The first categories the Evidence Code.” The statute to two applies *11 832.7, as (§ (a)), subd. which section 832.8 defines is records” “personnel name his or her by employing file maintained under “any [an officer’s] to,” and records other containing relating among things, “[pjersonal agency advancement, 832.8, (§ or (a)), discipline” data” subd. “[e]mployee appraisal, 832.8, (§ and or (d)), investigations complaints, subd. “[c]omplaints, . . . and or transaction in which he or she concerning participated event duties.” his or her to the manner in which he or she performed pertaining 832.7, 832.8, section (§ (e).) subd. The second of records to which category state or local (a), agency is “records maintained by any subdivision applies or 832.5.” The latter statute requires department pursuant “[e]ach [s]ection establish a in that officers procedure agency employs peace [to] [California] members of the investigate by against personnel complaints 832.5, (a)(1).) It also (§ these or . . . .” subd. agencies requires departments . . . to these relating and or any findings complaints “[c]omplaints reports or . . . either in the peace be retained for a of at least five years period file designated by custodial officer’s file or in general separate 832.5, (§ or by agency policy.” or provided department ” “ “the file maintained (b).) by subd. file’ ‘[g]eneral personnel to each or custodial records agency containing specific primary evaluations, and status changes, including assignments, officer’s employment, 832.5, (§ (d)(1).) subd. discipline.” imposed reasons, 832.7,
For several (a), that section subdivision does Copley argues First, justify Commission’s refusal to disclose the records. that the statute Copley argues to a “criminal or civil applies only proceeding” (§ neither; (a)), and that the at issue here is it is an proceeding Second, “administrative” that the proceeding. argues statute applies to records only ‘that offic- “kept departments agencies employ peace ” ” ers’ or “maintained that the Commission ‘employing agency,’ officers, “neither nor . employ[s] peace . . create[s] maintain[s] [s]ection [sjection 832.5 or 832.8 records.” that it Finally, has both Copley argues constitutional and common law of access to the For right records question. below, the reasons set forth we reject Copley’s arguments.
A. Section 832.7 is not limited to criminal and civil proceedings. (a), first Copley’s argument—that applies only to criminal and civil on the proceedings—is statute premised phrase providing information is “confidential and shall not be specified disclosed in criminal or civil proceeding by discovery except pursuant Sections 1046 of the Evidence Code.” In Bradshaw v. Los City of Angeles (Bradshaw), (1990) 221 court the word “confidential” in this “is in opined its context phrase hand, to two reasonable susceptible On one because the interpretations.” ” ‘and,’ word “is followed the word it could “a signify separate, indepen dent (Ibid.) makes the concept material.” [specified] privileged [that] hand,” “On the other the word could also be viewed as merely “descriptive follows,” to the dictate prefatory specific legislative immediately] [that which it case could mean that the records “are confidential in” specified only “ ” (Ibid.) the context The Bradshaw court of a ‘criminal or civil proceeding.’ the latter adopted that the statute affords confiden interpretation, concluding tiality criminal and civil and not in “an administrative proceedings, (Id. action hearing” involving against officer. police *12 because, We reject argument like court to Copley’s every appellate address the issue in a we with subsequently published opinion, disagree Bradshaw’s conclusion that section 832.7 in criminal and civil applies only When faced awith of we look proceedings.5 question statutory interpretation, 136, v. first to the (People Murphy (2001) statute. 25 Cal.4th language 387, 1129].) 142 P.3d 19 that we Cal.Rptr.2d language, interpreting [105 (Garcia strive to effect and give significance word and every phrase. 5 893, (2003) City Diego Cal.App.4th Cal.Rptr.2d See Davis v. San 106 901-902 [31 of 266]; SDPOA, 281-288; City (2000) supra, Cal.App.4th pages Angeles 104 at Rosales v. Los of 144]; (1995) Cal.App.4th City Superior 82 Cal.Rptr.2d 426 Hemet v. Court 37 [98 of (Hemet); Cal.App.4th City Cal.Rptr.2d 1425-1430 Richmond v. 532] of (1995) (Richmond). 32 Cal.App.4th Cal.Rptr.2d 1439-1440 [38
1285 906].) 16 Cal.4th McCutchen define 832.7, “only had intended If, Legislature in passing have it could criminal and civil proceedings, disclosure in procedures criminal or in not be disclosed that the records ‘shall done so by stating 1043 and 1046 to Sections discovery pursuant civil except by proceeding ‘confiden ,’ information designating . . without also the Evidence Code . at 832.7, (a).)” (Richmond, Cal.App.4th supra, subd. (Pen. tial.’ § SDPOA, 284.) at 1439; p. supra, Cal.App.4th see also p. 832.7, (a)) as (§ “establishing] subd. “confidential” word interpreting at (Hemet, Cal.App.4th supra, condition of confidentiality” general criminal disclosed in any “shall not be 1427), and phrase p. interpreting 1046 of to Sections 1043 and discovery or civil except by pursuant proceeding Code, 832.7, a limited (a)) as (Pen. “creating] the Evidence Code” meaning we confidentiality,” “give[] to the exception general principle (Hemet, supra, Cal.App.4th both clauses” of the provision question. (See this of section 832.7 support interpretation. Other subdivisions 832.7, (c), SDPOA, subdivision Section Cal.App.4th or that (a), agency “[Notwithstanding department that subdivision provides disseminate data regarding or custodial officers may employs peace number, its officers if that against . . . made or type, disposition complaints the individuals involved.” is in a form which does not identify information (a), a subdivision (d), “Notwithstanding subdivision Section provides: release custodial officers may or or agency peace employs who if the officer factual information concerning investigation disciplinary the officer’s or agent or investigation, is the subject disciplinary she knows to be false makes a statement he or publicly representative, action. . . . or the of disciplinary concerning investigation imposition this agency of factual information pursuant Disclosure employing file limited to facts contained in the subdivision is action or concerning investigation imposition disciplinary or made public by refute the false statements specifically These provisions, officer or his or her agent representative.” custodial be released to the under which information may which circumstances specify released, be be would may and the of information general public scope if, concluded, under section confidentiality as Bradshaw unnecessary and a and criminal (a), proceedings extends to civil CPRA. under the information to the general public is free to release a construction construction statutory preclude “Well-established canons (Manufacturers a statute meaningless inoperative.” renders a part [that] *13 257, 274 10 Cal.4th Ins. Co. v. Court Superior Life (1988) 44 56]; McClatchy Newspapers cf. (McClatchy) Cal.3d 1181-1182 authorizing to release materials to grand jury [statute succeeding grand jury is “most indication that the has not authorized compelling Legislature disclosure of materials to the public”].) [those]
Finally, Bradshaw’s narrow of section 832.7 would interpretation defeat the largely Legislature’s is purpose enacting provision. “[T]here little point information from disclosure in protecting connection with criminal and civil if the same information proceedings can be obtained (Richmond, under CPRA.” routinely at supra, Cal.App.4th p.
“it would be unreasonable to assume the intended to Legislature strict put limits on the discovery police records context of civil and criminal and then to discovery, broadly member of the permit any (SDPOA, obtain easily those records” through CPRA. supra, “Section 832.7’s Cal.App.4th would be protection wholly illusory unless that statute ... to establish status for confidentiality [we read] [the records” criminal specified] (SDPOA, and civil beyond proceedings. 284.) We cannot conclude the Legislature intended to enable third parties, CPRA,
by so invoking easily circumvent the privacy protection granted under section 832.7.6We therefore reject argument section 832.7 Copley’s does not criminal and civil apply beyond we proceedings, disapprove Bradshaw v. Los City Angeles, supra, to the extent it is inconsistent with this conclusion. B. Commission records disciplinary appeals, including name, are under section 832.7. protected above, As noted asserts that the Commission’s records are not 832.7, under (a), protected subdivision because are neither they records” nor “records maintained “personnel state or local any 832.7, (§ to Section 832.5.” pursuant (a).) For the set reasons forth below, we disagree. view that the
Copley’s Commission’s records do not under section qualify records,” (a), which Court of “personnel Appeal above, on section 832.8. As noted adopted,7 premised section provides [sjection used in records’ means file main- ‘personnel “[a]s tained under name his or her employing agency [an officer’s] matters, containing to” relating specified including “discipline” Legislature grant general Nor can we conclude the intended public greater access granted litigants this information than it in civil and proceedings, criminal which would be the Bradshaw’s conclusion. adopting result of Appeal expressly The Court of did not state that the qualify Commission’s records do not However, agency. as records maintained the employing implicit that conclusion is analysis and court’s conclusion.
1287 or an event trans- concerning investigations complaints, “[c]omplaints, in . . . manner and pertaining action in which participated [the officer] (d) (e).) & (§ her duties.” subds. he or she his or which performed meet this definition records do not asserts that Commission’s and, therefore, the Commission does not officers” “employ peace because a file file a it maintains regarding peace disciplinary 832.8.) (§ ... by agency.” “maintained employing [the officer’s] take into the nature of the fails to account argument Copley’s role for officers in San Commission and its in disciplinary proceedings peace 3304, which (b), is part Government Code Diego County. Code, (Gov. Bill of Act 3300 of the Public Officers Procedural Safety Rights § ac (POBRA), et a from prohibits agency” taking “punitive seq.) “public . officer . . tion . . . without against any public safety [nonprobationary] for administrative officer with providing public safety opportunity forth one of “basic We have that this sets explained provision appeal.” by officers that “must be accorded individual rights” public safety agencies (White which them.” v. Sacramento (1982) 31 employ County of 520, added; (White), 676, italics see Cal.3d 679 Cal.Rptr. [183 191] 564, Police City also Pasadena Assn. v. Pasadena (1990) 51 Cal.3d Officers 584, the basic 569 P.2d “sets forth Cal.Rptr. rights 797 608] [273 [POBRA that law enforcement to their officer agencies must provide peace employ 128, 232, v. Baggett Gates ees”]; (1982) 32 Cal.3d 138 Cal.Rptr. [185 officers ‘an “require[s] city peace opportunity provide 874] [statute our ”].) administrative As described Courts of appeal’ by Appeal, “pur is, of this officer “an . . . pose” give peace provision part, opportunity ” ‘to to take employing agency convince to reverse its decision’ punitive (Binkley City v. Beach (1993) Long action. Cal.App.4th [20 added, Block (Binkley), Browning italics v. Cal.Rptr.2d quoting 903] City Los 763]; Riveros see also (1996) 41 Angeles [appeal Cal.App.4th officer “a to ... to convince try under Gov. chance gives peace § decision”].) his to reverse its employer Diego duty offering
In San this is satisfied County, statutory by Commission, administrative which is established through officers appeals (Charter) as County. the San Charter Diego County (Charter, the Commission as “the designates The Charter §§ for the matters authorized County administrative appeals body includes (Charter, 904.1.) this Charter.” This authority “appellate appeals § with from actions of classified involving permanent discipline employees [][] against status” and filed a citizen classified “charges person “affirm, (Id., 904.2.) authorizes the Commission status.” The Charter order, . . make orders modify any any appropriate revoke . with under its jurisdiction,” specifies connection appeals “[t]he *15 final, Commission’s decisions shall be and shall be followed by County (Id., unless overturned by 904.1.) courts on Because the appeal.” Commission, a has been department County, to designated provide that officer’s is law to in employer by connection required provide action, with taking it is reasonable punitive to conclude that for purposes case, the relevant applying statutes this the Commission is as functioning of “the part and that employing agency” file it any maintains regarding peace constitutes a file disciplinary appeal “maintained ... by [the within the employing agency” of section meaning officer’s] 832.8.
The operative statutory viewed in the context of the entire language scheme statutory this conclusion. the relevant supports Although statutes do not define the term “employing agency” purposes applying 832.8, section 832.5 offers assistance in the term’s determining As scope. above, noted section 832.5 addresses by members of the “complaints against the of’ California personnel any or . . “department . that agency 832.5, above, officers.” employs peace (§ (a)(1).) subd. As also noted it requires or “[c]omplaints any reports to these findings relating ... be complaints retained for a of at least five . . . either in period years or custodial peace officer’s general file or in a file personnel separate designated or agency or provided by department agency 832.5, (§ (b).) here, subd. policy.” As relevant especially statute provides “determined complaints . . . officer’s to employing agency be frivolous ... or unfounded or exonerated . . . shall not be maintained in 832.5, officer’s general (§ file” personnel (c), added), subd. italics “shall be removed from” that file to official “prior determination regard transfer, ing 832.5, promotion, (§ action.” (b).) subd. The “ Legislature these passed provisions ‘ensure that [peace are not officers] ” penalized false charges (Assem. in their languishing files.’ Off. Research, 3d Bill reading analysis (1995-1996 Assem. No. 3434 Reg. Sess.) as amended May 2.) Under this Copley’s interpretation, would not be protection triggered by Commission determination on appeal frivolous, unfounded, exonerated, that a is complaint because the Commis sion, final, although County department designated statuto provide rily required administrative step is not the disciplinary process, (§ (c).) “employing agency.” This would be neither interpretation reasonable nor consistent with the intent. Legislature’s reasonably understood, the term as used in section “employing agency” subdivi (c), sion includes the Commission insofar as it hears disciplinary appeals. Under settled it principles statutory interpretation, appropriate give that term the same meaning (See section 832.8.8 applying Walker v. dissent, construction, adopt which would Copley’s suggesting analysis errs in that our (or could) “speculation rests on that a law enforcement disregard would the Commis (Dis. dissent, opn., post, sion’s decision on appeal.” Like the presume we that a P.2d (1988) Cal.3d 852] with same dealing appearing provisions language separate
[“Identical County be accorded the same interpretation”]; matter should subject v. Aetna Cas. etc. Co. Placer Cal.2d 188-189 are together matter to be construed subject same relating [“statutes if harmonized possible”].) cites Civil for a arguing contrary interpretation, Copley unpersuasively *16 Com.
Service Court 70 (1984) Cal.Rptr. 159] v. [209 (CSC). the characterization of relies on that decision’s Copley Specifically, (Id. 77.) at How county “as a agency.” p. Commission ‘quasi-independent’ ever, in ‘to indicate that one “the term is used legal phraseology ‘quasi’ characteristics, are in but that there resembles another ... certain subject re (In McNeill and them.’ intrinsic material differences between [Citation.]” words, (Bankr. 1996) 661.) B.R. it E.D.N.Y. other “presupposes (Wiseman both resemblance and v. Calvert (1950) 134 W.Va. difference.” Thus, 445, 454], added.) characterization of the S.E.2d italics CSCs [59 “ (CSC, supra, 77) a county agency” Commission as ‘quasi-independent’ all that is an body does establish the Commission independent es.9 (1973 Jury) v. Grand People Superior (Cf. Cal.3d purpos “full [grand enjoys 438-439 jury 761] “ ” action,” is the court which it is convened’ by but independence ‘part “ F.P. County Johnson Fontana Dist. ”]; and ‘under the control the court’ ‘ (1940) 15 a Cal.2d subdivi “generally political [“ officers, commissions, boards, and the and thereof agents sion representatives ’ CSC a in ”].) form but court made this characterization single entity” Commission, counsel, had “an whether in the determining county advising the distinct with Commission and from attorney-client “separate relationship” that county counsel’s fundamental with the such county County,” relationship Commission, County by unappealed abide decision the as agency law enforcement would an However, 904.1.) (Charter, the requires. the Charter under the dissent’s view that Commis- § agency the that a law acting part employing agency, sion is not as of the fact enforcement by by abides a does not that into a Commission decision transform decision “determin[ation] Thus, 832.5, (c).) (§ agency plain . . . . .” under the peace employing the officer’s . . subd. statute, required language agency not be to remove relevant the law enforcement would unfounded, frivolous, or complaints officers’ files the to be from Commission finds exonerated, by doing and so. Whether a local could abide the Commission’s decision without Thus, would choose to remove such agency complaints question. the dissent’s separate is Legislature many protection and strip peace officers of the assurance construction would sought guarantee. Charter, noted, County already department under is a As Commission Moreover, by County’s (Charter, is Board of County. appointed each member §§ (Charter, 903) “may by majority be vote of the Board if removed Supervisors § removal, containing the reasons for serves the Commissioner written statement Board [with] minutes, opportunity be heard records the statement allows commissioner (Id., 903.2.) publicly.” counsel could not lawsuit represent county county’s against (CSC, that Commission. the considerations informed that were issue here court’s decision far different from the considerations at whether the file of an determining administrative disciplinary appeal provided aby a “file main- through Commission is employer ... tained within the of section meaning employing agency” [the officer’s] differences, 832.8. Given these on unavailing.10 reliance CSC is Copley’s reasons, For several that the Copley’s argument Commission’s records cannot as “records maintained state or local qualify agency 832.7, (§ 832.5” also (a)) subd. fails.11 asserts pursuant [s]ection officers kept departments agencies employ peace (§ (a)), are “maintained . . . 832.5” and that pursuant [s]ection the Commission’s records meet do not this criterion because the Commission However, does not peace officers. employ preceding analysis regarding sections 832.7 and 832.8 also the conclusion that for supports purposes Commission, applying hearing appeals, of a functioning officers part employs peace *17 that any records it maintains such are maintained regarding by appeals being a such or agency. department event, the any statutory language does not assertion support Copley’s
(which (dis. 1308)), the post, dissent that erroneously repeats opn., agencies or that officers are kept by departments employ peace 832.7, “maintained (§ (a).) . . . pursuant 832.5.” subd. Section [s]ection or 832.5 . that requires . . department agency employs [California] “[e]ach officers establish to investigate a members procedure by complaints [to] 832.5, (§ of of these or public against agencies” departments 10 argument, At oral asserted that both Government Code 3304 and the section factfinder,” require by Charter administrative to be a and appeals conducted “neutral that it is and, time, “illogical” part to characterize the Commission as both at the neutral same of assertion, employing commenting agency. Without on the former we note the latter is that City Angeles (See (2002) Brown v. Los Cal.App.4th inconsistent with California case law. 102 of 155, (Brown) [regulation hearing Cal.Rptr.2d requiring 178-179 that officer for [125 474] appeal administrative of disciplinary police department be selected from members satisfies due 1123, Hongsathavij Angels etc. (1998) Medical Center v. Queen of process]; Cal.App.4th 62 adjudicator” board “impartial 1142 center’s of directors is [73 695] [medical notwithstanding administrative its appeal physician’s suspension that administrator “initiated” City action”]; Stanton v. Sacramento management and its “risk staff West prosecuted 1438, (Stanton) (1991) hearing 226 Cal.App.3d Cal.Rptr. [police 1443 chief 478] [277 “ ‘ discipline reasonably impartial, administrative “a appeal imposed another officer ’ ”]; 673, Doyle City Chino (1981) v. Cal.App.3d noninvolved reviewer” 117 681-682 [172 Cal.Rptr. hearing [city police council chiefs administrative of termination decision 844] “ ”].) by city manager body’ made ‘was an impartial 11 above, public against” As “complaints noted section 832.5 deals with members of the (§ (a)(1).) peace officers. subd. The record does disclose whether case involves this complaint. explained, would be the such As result same event.
1291 directs that members (a)(1)), [by public] subd. “[c]omplaints shall be retained for to these findings relating any reports complaints not, however, (Id., (b).) of at five It does years.” specify least period Moreover, it does expressly specify that must maintain these records. entity in a be maintained ... retained pursuant may “complaints [the statute] ” (Ibid.) . . . In light . file separate designated because the Commission these it is reasonable to conclude that provisions, under its records has been to hear designated appeals, qualify local (a), “records state or by any as maintained Francisco Police (See San to Section agency pursuant 832.5.”12 Officers’ Assn. v. Court (1988) Superior Cal.Rptr. 297] [248 (SFPOA) mandating the establishment of Legislature, appropriate [“the has mechanisms for the of citizens’ investigation complaints, relegated each local so long format to the authority agency, operating procedures are and related confidential and maintained findings complaints kept for minimum five years”].) period extent this leaves statutory
To the examination language flow uncertainty, it is to consider “the will appropriate consequences v. Growth (Harris from a Capital particular interpretation. [Citation.]” Investors XIV (1991) P.2d Cal.3d Cal.Rptr. (Harris).) Where more than one construction is statutory arguably possible, our been the more has to favor construction leads to “policy long (Webster reasonable 46 Cal.3d result. [Citation.]” 596].) from largely This derives policy that the results with Legislature intends reasonable consistent presumption (Harris, 1165-1166.) our task is to apparent purpose. pp. *18 that select construction most with closely Legislature’s comports intent, with a view than the statutes’ rather apparent promoting defeating unreasonable, and to lead to general avoid a construction that would purpose, 234, 246 v. Jenkins (People (1995) 10 Cal.4th arbitrary results. impractical, 493, 903, 1224]; (1995) People v. Simon 9 Cal.4th Cal.Rptr.2d 893 [40 Eu 1271]; Fields v. (1976) 517 18 Cal.3d 886 P.2d [37 729].) 328 We narrow will Cal.Rptr. adopt “[a] restricted “if result in an evasion of it would meaning” statutory language broader, statute], meaning the evident when a but purpose permissible, [a 12 assertion, Contrary by meaning “maintained ... phrase [the to the dissent’s of the not, context, (dis. employing agency” “plain" in section 832.8 is either alone or so officer’s] 1309) opn., post, County been by at to exclude maintained that has p. must, law, identify designated County that the Nor does the dissent appeals provide. hear post, (Dis. any language meaning.” opn., p. at On “plain in section 832.5 that has that contrary, finds from the “apparent” view of 832.5 is based on what it the dissent’s section (Dis. post, at language together.” opn., ... of the section’s various subdivisions “[c]onsider[ed] p. 1292 (In
would the evasion and prevent out that carry re purpose.” Reineger 184 Cal. 81].) P. considerations, these
Regarding it is significant under inter- Copley’s the extent of pretation, confidentiality available to officers would turn peace on several fortuities: the entity hearing appeal timing former, As to the request. the law although requires “public agency” provide nonprobationary officers with “an opportunity administra- tive in connection with appeal” (Gov. Code, 3304, taking action” “punitive § (b)), it also expressly gives “local agencies]” discretion to determine “rules and for these procedures” (Gov. “administrative appeal[s].”13 Code, 3304.5; see Binkley, supra, at Cal.App.4th p. [“details” “are required left to be appeal formulated the local In San agency”].) Diego this County, discretion has been statutory exercised by designating However, Commission to hear administrative appeals. other local at agencies various times have designated individuals within the law enforcement depart- Brown, ment to hear such (See appeals. supra, 102 at Cal.App.4th p. [“a member of the of the rank of Department chief’]; captain through deputy Riveros v. City Los Angeles, supra, 41 at 1358-1361 Cal.App.4th pp. officer [hearing was captain with chief department, final retaining decision]; Stanton, supra, 226 ”]; ‘Chief of Cal.App.3d Police’ [“ Holcomb v. City Los Angeles (1989) 210 Cal.App.3d 1562 [259 rights” of “two watch consisting 1] [“board commanders and one from the LAPD”].) captain Under Copley’s interpretation, record of the officer’s in this case is appeal unprotected only because San Diego County, the Commission has been to hear designated the administrative appeal law requires employer if the provide; officer worked in a where jurisdiction administrative are appeals heard within the law enforce- ment then the records of agency, SFPOA, would (Cf. be protected. [tape recording before office of hearing citizen is a complaints “confidential disclosure of which is expressly record[] governed statutory scheme”].)
As for timing, Copley’s would interpretation yield inconsistent results records, disclosure of regarding identical on when the depending disclosure above, is made. As noted request (b), requires *19 members of the “[c]omplaints [by public against and any officers] or reports findings to these relating ... be retained for a complaints of period If, contends, at least five years.” Commission’s records are not “maintained . . . to pursuant 832.5” within the of section meaning [s]ection 832.7, (a), subdivision then the Commission’s retention of its own and reports course, Of discretion must be exercised consistent with statutory constitutional and SFPOA, (Cf. 190.) limitations. p. at the employ- of section 832.5 and satisfy requirements would not
findings of law to retain by copies or itself would be required ing agency department five The years. copies for at least in its own files findings those and reports would, files agency’s and findings employing Commission’s reports 832.7, “records (a), be subdivision under the section express language “confidential.” and would be . . . to 832.5” maintained pursuant [s]ection However, own Commission’s findings same and reports because those 832.7, [sjection (§ . . to 832.5” not . files would be “maintained pursuant disclosed and would have to be (a)), not be confidential they subd. would (or some before of a disclosure they destroyed filing request unless were Thus, disclo- CPRA under Copley’s interpretation, other exception applied).14 is made to on a disclosure would whether depend, fortuitously, request sure it records.15 the Commission or after destroys before . . not “maintained . Copley’s interpretation, Under because the Commission’s are 832.7, [sjection (§ (a)), five-year of section requirement to subd. retention pursuant 832.5” 832.5, Thus, (b), nothing prevent would the Commission apply subdivision not them. would destroying immediately appeal. after an completing from its records construction, and copies reports dissent’s under its assertion that Commission (dis. opn., post, at findings kept not be confidential the sheriff’s would 832.5, (b), 1311-1312), plain section language is inconsistent with the subdivision pp. for at findings relating complaints citizen be retained requires “any reports which to” 832.7, (a), years, specifies and that “records maintained least five of section subdivision which agency inconsistent by any state are confidential....” It is also pursuant 832.5 ... [s]ection (1993) Superior Cal.Rptr.2d with our decision 5 Cal.4th in Williams v. Court 337 [19 (Dis. (Williams), erroneously post, p. relies. at opn., on which dissent 377] There, (Gov. “investigatory security files” construing exception the CPRA certain for Code, 6254, materials”—i.e., (f)), their explained that those “not on “nonexempt we through exempt exempt from face disclosure” under CPRA—“nevertheless become 354—355.) (Williams, supra, in an investigatory pp. inclusion file. at [Citations.]” may contrary analysis, supports agency to the actually dissent’s Williams view that properly in a file “plac[ed]” refuse to disclose an otherwise “disclosable that it has document” if, Therefore, (Dis. opn., as the dissent protected post, p. that is from disclosure. at argues, the Penal Code 832.7 because Commission’s files are confidential under section 832.5, they Penal then employing agency pursuant are not maintained Code section when, as findings nevertheless become confidential copies reports Commission’s 832.5, (b), agency’s they employing requires, properly placed section subdivision are files. (dis. 1311), explained opn., post, the dissent at we also in Williams p. As observes investigatory agency applicable the CPRA for files exemption cannot make ” ‘investigatory’ (Williams, supra, 5 it in a particular placing record file labeled “simply 355); investigatory only “prospect if the properly can be called Cal.4th the file definite,” “properly in question and the record must proceedings” enforcement is “concrete (Id. 362.) Contrary to the investigation.” belong in the file” it to the because “relate[s] copies analysis, completely is consistent with the view dissent’s this discussion maintaining as findings agency properly that the is reports employing Commission (a). (b), under subdivision required by section are confidential Cal.App.4th Times 97 [60 The dissent’s reliance on New York Co. v. There, (New Times) filed a CPRA news similarly misplaced. York records, names sheriffs who deputy but request, not disclosure of for information: *20 Given these we cannot consequences, say adopting Copley’s interpre- tation would reasonable produce results that most with the closely comport Legislature’s intent. The statutes a apparent disclose intent both to legislative require “any retention of reports findings” generated part agency’s 832.5, for citizen procedure investigating (§ officers complaints against peace by any (b), added) subd. italics and to make records “maintained state or 832.7, local to” agency pursuant (§ (a), this “confidential.” subd. requirement SFPOA, added; italics see supra, at p. 190 “evi- [statutes legislative retention of records “purpose provide dence[]” relevant while limitations their imposing upon dissemination”].) discovery Copley’s intent, interpretation results inconsistent with this produces by stripping Commission’s reports findings at least so as the confidentiality, long Commission retains of them. in the copies Nothing legislative history sug- a intent gests legislative to create the asserts. confidentiality exception Copley Moreover, it is doubtful intended to make the extent Legislature confidentiality available to a officer turn on whether he or she works in peace where jurisdiction for administrative been responsibility has as- appeals to someone signed outside the law enforcement department. enacting directly give did not Legislature local discretion agency to release records of disciplinary local appeals. although particular have agency might good reasons for wanting grant access to officers, records disciplinary where regarding peace jurisdictions all aspects matters and citizen disciplinary complaints—including appeals—are within handled law enforcement the statutes do not department, give employing agency discretion to disclose records without consent disciplinary involved officer. It is unlikely Legislature, declining confer this discretion directly, nevertheless intended to allow an officer’s indirectly, to exercise such discretion employer someone by designating course, outside the to hear these matters.16 Of some jurisdictions may (Id. during fired weapons an incident. at argued The sheriffs protected information was from disclosure the CPRA exemption “personnel . . . files.” (Gov. (c).) disagreed, explaining although court the information found, files, among could be places, other readily officers’ it could “be provided any (New . . . without portion deputies’ personnel disclosure of of the files.” York Times, 103-104, omitted.) Cal.App.4th pp. fn. The court reasoned that the names officers, information,” which was . “otherwise . . unrestricted did exempt not become (Id. from merely by being “plac[ed] disclosure a personnel into file . . . .” This correct, here, reasoning, (a), even if application has no because section protects specified both the records and “information obtained from records.” Nor does [those] York proposition public agency’s New Times stand for the that records within a possession lose were, time, protection they merely they to which are otherwise entitled because at some available from some other source. 16Logically, Copley’s interpretation apply only would not to records of an administrative appeal. Copley’s analysis, relating Under part of a matter handled outside the law enforcement department meaning would not be confidential within the of section 832.7. *21 for outside the agency to matters persons for such assign responsibility for—public considering implications without unrelated to—and reasons effort to went to great which unlikely Legislature, it is Again, disclosure. to subject and would be confidential such matters ensure that records of circumstances, intended that such protection under limited very disclosure of a local agency’s or incidental consequence be lost as an inadvertent would disclosure, to someone decision, designate unrelated public for reasons the Legislature is it likely such matters. Nor to hear agency outside this decision. that influences a factor confidentiality to make loss of intended we find the legislative history, language reviewed the Having statutory would rights intended that one officer’s privacy the Legislature no evidence for or her because his employer, less than another’s simply be protected reason, an like using entity administrative conducts appeals whatever 832.7, to have made the Legislature appears section enacting Commission. records, has of such confidentiality a statewide decision regarding has “may”—i.e., where a local agency the circumstances expressly specified (§ those records. limited information from discretion to—release very it intended to leave (c), (d).) up suggests Legislature subds. Nothing handling chosen for the mechanism through local departments agencies, much, matters, accident—how determine—either intentionally these does even attempt to afford officers. Nor if any, protection peace Code to enact Penal the considerations that led the Legislature explain why CPRA this statute as a and later to recognize section expressly on whether (Gov. 6276.34), differently depending apply exception enforcement agency.17 inside or outside the law matter is handled 832.7, we section records made confidential In a case prior involving with the age interests do not vary officers’ explained “[p]eace privacy San Jose v. (City who seeks records.” accused 73, 621].) Nor do those 850 P.2d (1993) 5 Cal.4th Cal.Rptr.2d an administrative of the hearing interests with the vary relationship person to a officer’s employer.18 appeal peace exist, where may justification public disclosure there be more To the extent differences is heard appeal than where the entirely heard within the law enforcement
the matter is context, has more reason to Arguably, in the latter entity like the Commission. and, less need for disclosure. objectivity consequently, decision maker trust the not, asserts, confidentiality” available “the level of do the dissent “assume[]” We as Rather, added.) post, (Dis. we italics “must be the same” for all opn., officers. peace because, explained, it the dissent’s construction disparity note the that exists under intent, statutory interpreta objective “the determining Legislature’s which is relevant ____” 979].) (People v. Flores 30 Cal.4th 1063 [135 tion not, more agency’s provide desire to suggests, believe that a local We also do as the dissent post, (Dis. simply We find—and opn., public disclosure would be “unreasonable.” local Legislature, precluded which has suggesting that the offers—no evidence dissent would also significantly Adopting Copley’s interpretation impact under Code right administrative Government above, (b). As noted is one of the “basic right rights” (White, under the must officers POBRA. public employer provide peace *22 679.) 31 Cal.3d at create a would p. Adopting Copley’s interpretation strong disincentive to this basic in exercising where statutory right jurisdictions are heard outside law enforcement such appeals by persons department. in order to exercise this to jurisdictions, officers would have right, peace give 832.7, much of their of under Penal Code section right confidentiality up Thus, (a). subdivision officers with Copley’s interpretation presents peace Hobson’s choice between their of under right Penal Code confidentiality section 832.7 and their of administrative under Government Code right appeal local section 3304.19 There is no evidence the intended to Legislature give discretion to agencies force officers to make such a choice. Nor is there peace evidence intended that the basic of administra- Legislature statutory right tive would be less available in some than in effectively jurisdictions appeal 20, 36, Seattle Times Co. v. Rhinehart (Cf. (1984) others. 467 U.S. fn. 22 “ 17, L.Ed.2d 104 S.Ct. that individuals [noting may ‘forgo 2199] ” “ ” of their to just claims’ avoid ‘unwanted pursuit publicity,’ causing “ ”].) ‘frustration of On the such a conclusion right’ contrary, [a valuable] would be Legislature’s inconsistent with declaration that express peace under of “a rights POBRA—including right appeal—are matter of statewide concern” and must be available “to all public safety officers, . . . wherever situated within State of California.” (Gov. declaration, added.) italics this we have Citing statu- explained constructions “more tory making administrative opportunity appeal available” “accord . . . with the widely express purpose [POBRA].” (White, supra, 683.) 31 Cal.3d at from the of both p. perspective narrow statutory language practical consequences, Copley’s interpretation one, is not the more reasonable and would not reasonable results produce closely most with the intent.20 comport Legislature’s apparent agencies implementing directly, permit indirectly, by from this desire intended to them to do so designating entity like disciplinary appeals. the Commission to hear as, among things, necessity A Hobson’s choice “the accepting is defined other of one of (Webster’s (2002) equally objectionable things.” two or more Internal. Diet. p. 3d New sense, construction, by forcing give up col. In this certain peace dissent’s officers right right confidentiality, surely either their or their them with a appeal presents suggesting options Hobson’s choice. The that our limits the dissent errs construction peace appeals officers who want their heard bodies “drawn from outside immediate [their] post, (Dis. Nothing precludes chain of command.” at opn., opinion peace our choosing appellate body agency officers from such an if a local offers one. dissent, construction, According a peace to the under its officer who must choose between right right confidentiality litigant seeking and the is the same as civil assertion, post, (Dis. 1311-1312.) legal rights even opn., pp. vindicate in court. This if correct, statute, By Legislature point. expressly provided peace is beside the has officers addressed disclosure as the Court Appeal specifically
Insofar is not confiden information that this finding it erred identity, the deputy’s from section derives largely This conclusion tial under section 832.7. (a)” of subdivision 832.7, (c), “[notwithstanding which permits, subdivision officers disclose employs officers, that informa but “if against certain data regarding complaints individuals involved.” identify in a form does tion is which this be disclosed under exception that may the information language limiting (a), is designed protect, that section demonstrates to complaints. “the of officers” identity subject other among things, 3; Journal Daily Corp. cf. (Richmond, fn. Cal.App.4th Cal.4th identify that would disclosure of information prohibiting [provision *23 safeguard concern to “reaffirms the general legislative witnesses grand jury of this confirms The legislative history provision grand jury secrecy”].) the individuals information identifying intent to “prohibit any Legislature’s released, rights an effort to personal from being protect involved Public (Assem. Safety, Republican citizens and officers.” Com. on both 2, 1989, 2; Sess.) (1989-1990 2222 Reg. Sept. p. of Assem. Bill No. Analysis Means, Assem. Bill No. & Analysis see also Assem. Com. on Ways allows release (1989-1990 Sess.) as amended Reg. May [exception the officers identify as the information does not long data “as summary and the involved”].) legislative history, Given the statutory language of the name of deputy Court of erred in disclosure ordering Appeal involved in this case. Times, reliance on New York conclusion, we reject this reaching Copley’s There, a news organiza a CPRA request,
supra,
97.
through
Cal.App.4th
a criminal
during
sheriffs who fired weapons
tion
the names of
sought
deputy
Times,
sheriff, who determined
(New
York
100.) The
county
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at p.
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to
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investigation
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an internal
during
Legislature
officers
with both
rights,
here is whether the
intended
make
question
and the
that,
agency
whatever
they
for an
rights
happen
choose between those
if
to work
reason,
Nothing suggests that such
designated
body
appeals.
like the Commission to hear
has
Legislature’s
intent.
treatment
would be consistent with the
unequal
officers
legislative
asserting that Government Code section 3304.5 evidences
The dissent errs in
section,
1312.)
opn., post,
(Dis.
which
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at
That
unequal
intent
to allow such
treatment.
rules and
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that “administrative
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3304.5),
(Gov.
public
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adopted by”
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local
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abrogate
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Club,
Country
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not
Finally, Copley’s appeal policy unpersuasive. insists that officers is vital to scrutiny “public disciplined prevent exercise of official arbitrary those who oversee law enforcement power by and to foster confidence in the system, especially given widespread are, concern about America’s serious misconduct There police problems.” course, considerations favor such competing policy may confidentiality, retaliation, and witnesses recrimination or protecting complainants against officers from of frivolous or unwarranted protecting peace publication confidence in law enforcement *24 charges, maintaining agencies by avoiding disclosure of premature (Cf. claims misconduct. groundless police McClatchy, supra, 44 Cal.3d at 1173-1178 reasons for pp. [discussing Gubler v. Commission on Judicial in confidentiality grand jury proceedings]; 27, 171, (1984) 37 Cal.3d 60 688 P.2d [207 Performance matters].) In [discussing judicial enacting amending sections 832.5, 832.7, with Legislature, though presented arguments similar to made decision “that Copley’s, policy desirability matters does in confidentiality interest police personnel outweigh (Hemet, supra, 1428, in 37 18.) at fn. openness.”21 Cal.App.4th p. Copley 21 The opposed legislation American Civil Liberties Union that enacted sections 1978 832.5, arguing 832.7 and 832.8 and amended . that the statutes would . . off” “seal[] Barnhart, regarding complaints against peace (Legis. Brent officers “forever.” Advocate Union, 30, 1978, Carpenter, regarding American Civil Liberties letter to Sen. Dennis Mar. Sen. (1977-1978 Sess.).) Reg. Attorneys Bill No. opposed 1436 The California for Criminal Justice 832.7, arguing a public policy” 2000 amendment to section that it was “bad because it would accountability (Legis. Wendy “allow officers to avoid for their misconduct.” Advocate Justice, Cardoza, Taylor, Attorneys May Cal. letter for Criminal to Assem. Member Dennis (1999-2000 Sess.).) regarding Reg. Assem. Bill No. The California Public in to that extended opposed Defenders Association amendments sections 832.5 and 832.7 officers, confidentiality arguing “greater public exposure greater to custodial affords (Sen. insuring greater accountability.” Safety, protection public, by to the Com. on Public 13, 2002, 10.) (2001-2002 Sess.) Analysis Reg. May p. Bill amended Assem. No. 2040 the Legislature’s policy underlying to the considerations why
fails explain of a disciplinary on whether part decision differently, depending apply must, statute, is handled inside provide that the officer’s employer matter event, for the In it is itself. outside the law enforcement one Court of considerations. As to weigh competing policy Legislature “[Ojur deci- a similar argument: has in rejecting policy Appeal explained As a notions. . . . cannot be based on such generalized public policy sion are written.”22 they the laws as . . . our role body, interpret judicial [is] 287.) at 0SDPOA, p. Cal.App.4th constitutional considerations do not support
C. Common law and Copley’s interpretation. above, law and noted in that it has both a common argues
As part constitu- constitutional of access to the records in right question. Copley’s to a claim that section 832.7 is unconstitutional argument tional amounts the reasons as it of the records in For question. insofar nondisclosure permits below, stated we these reject arguments.23 agree Legislature policy make the We thus with the dissent that “it is for the ... however, errs, (Dis. in regarding confidentiality. opn., post, p. decision” at The dissent reasonable, asserting improperly are adopting the construction we find to be we (Id. “imposing” public policy “own view what be. Our decisions our of’ should long recognized “overriding construing give “to purpose” have that a court’s statute is [citation], conforming Legislature’s] keeping statute a reasonable construction intent [the meaning may single mind that ‘the of the enactment not be determined from a word or sentence; context, relating subject the same provisions words must be construed in (Massey Comp. possible’ matter must be harmonized to the extent v. Workers’ [citation].” 117], added.) (1993)
Appeals Cal.Rptr.2d Bd. 5 Cal.4th 854 P.2d italics Indeed, analytical approach—are inconsistent with an dissent’s criticisms—and overall just year. In re Reeves opinion majority the dissent’s author wrote for a of this court last 1218], finding “ambiguities” after Cal.4th 765 (id. 770), “seemingly plain [statutory] language” majority reasonable “searched] issue, more than explaining capable construction” of the statute at a statute is “[w]hen ‘ *25 construction, give provision . . . the a reasonable and commonsense one must “[w]e lawmakers, practical of the interpretation apparent purpose consistent with the and intention nature, in wise rather than upon application policy rather than technical in which will result ’ 9, added.) (Id. analysis, Our unlike absurdity.” mischief or at 771 & fn. italics [Citations.]” dissent’s, approach. is with this completely consistent 23 mandate, arguments Appeal made in its for writ of but the Court of Copley petition these bring this omission to the Court of opinion. Copley did not address them in its did not notwithstanding holding that by filing petition rehearing, for the court’s Appeal’s attention subject 832.7 and are not to requested some of the records are confidential under section petition file either a for review in this court or Copley disclosure under the CPRA. Nor did review, law or constitu petition answer to interveners’ which did not mention common identity only statutory question disciplined of whether “the of a tional issues raised action, requested from a Civil Service regarding officer and records request under” the CPRA. Under these provided pursuant Commission” should “be to American, circumstances, (See Inc. v. we decline to decide these issues. Barratt properly could 1300 common law fails under well-established
Copley’s argument prin we common law one As have is of forms of ciples. explained, only “[t]he law and no more than . . be sacred other. . the will any may changed [I]t of the unless constitutional limitations.” [L]egislature, prevented by (People 470, (1928) Hickman Cal. 204 “we common law may consider . . . if are or in only not conflict with practices they superseded by constitutional or ex rel. statutory provisions. (People [Citation.]” 150, 478, (1981) v. Brown 29 Cal.3d 624 P.2d Deukmejian Cal.Rptr. [172 Indeed, 1206].) California of cites authority Copley support that the common law records does argument recognizes right inspect public where “a makes apply specific exception specific nonpublic. (Estate 777, (1977) Hearst [Citation.]” [136 of Here, above, 821].) enacted a Legislature has statute explained specific Code, (Pen. that makes the records in “confidential.” question § Code, 6275, 6276, Code, (a); subd. Gov. see also 6276.34 832.7 §§ § [Pen. 6254, (k)].) constitutes CPRA to Gov. subd. exemption pursuant § statute, law, asserts, Given this the common even if it is as does not Copley this case.24 govern under the California Constitution fails for a
Copley’s argument
I,
3,
(b)(1),
similar reason.
relies on article
subdivision
Constitution,
California
which
“The
have the
of access
right
provides:
people
business, and,
to information
the conduct of the
there
concerning
people’s
fore, the
bodies and the
officials and
meetings
public
writings
public
However,
(b)(3)
shall be
agencies
scrutiny.”
open
same section
in relevant
in this subdivision . . .
provides
part
“[n]othing
affects the construction of
statute
to the
that it
...
extent
any
protects th[e]
I,
article
section 1 of the California
right
guaranteed by
Constitu
privacy”
tion,
any
or disclosure of
“including
statutory procedures governing discovery
the official
information concerning
performance
professional qualifications
Const.,
I,
3,
(Cal.
(b)(3).)
of a
officer.”
art.
One of section
peace
(71
832.7’s
is “to
officers.”
right
purposes
protect
privacy
(1988);
(2001)
see also
v. Mooc
26 Cal.4th
People
Ops.Cal.Atty.Gen.
685, 700,
City
Cucamonga
(2005)
Rancho
Cal.Rptr.3d
37 Cal.4th
fn. 3
[37
issues,
However,
719].)
lay
“in
parties have briefed the
and we will address them
order
(1992)
(People
v. Hansel
constitutionality.”
to rest
about
1 Cal.4th
doubts
[statute’s]
694].)
Communications,
Copley also cites Nixon v. Warner
Inc.
Notably,
reaching
majority
KQED,
cited Houchins
Inc.
438 U.S.
L.Ed.2d
98 S.Ct.
Houchins,
(Houchins). (United
Reporting, supra,
528 U.S. at
court reversed an
of Alameda
high
injunction
Sheriff
prohibiting
facilities,
from
members of the news media access to
County
denying
jail
(Houchins,
First Amendment does not
such access.
finding
guarantee
(lead
J.).)
Court of assertion that the conclusory public Appeals’ the conditions of regarding First Amendment information right government and their inmates and all other facilities such as public jails presumably ‘There no constitutional to have right and mental institutions. is hospitals HI] information, or to from the access to government require openness particular The interest in about its knowing govern- bureaucracy. public’s [Citation.] Press, ment is of a Free but guarantee protection protected Act nor indirect. The Constitution itself is neither a Freedom Information ”25 (Houchins, an Official Secrets Act.’ at p. statute, “a once duly Under our constitutional system government, ” enacted, and (Lockyer City County ‘is to be constitutional.’ v. presumed 225, 1055, (2004) San Francisco 33 Cal.4th 1086 95 Cal.Rptr.3d [17 459].) must be shown Unconstitutionality clearly, certainly positively, statute, and we resolve doubts favor of the statute’s attacking party 580, (Ibid.; (1935) 584 Co. v. Brownell 294 U.S. validity. Metropolitan 1133, 1070, 538]; (1995) In re Cal.4th 1152 L.Ed. 55 S.Ct. York [40 [79 308, 804]; (1920) v. Acc. San Francisco Industrial Com. Cal.Rptr.2d 273, 26].) 183 Cal. P. of United light Reporting 279-280 [191 Houchins, cannot meet burden of that section 832.7 is showing its Copley unconstitutional insofar as it nondisclosure of the records in question. permits fails to mention these making argument,
Notably,
Copley completely
Instead,
finding
court decisions.
it relies on a line of
court cases
high
high
to various
of a
First Amendment
access
qualified
right
public
parts
(1986)
criminal
Court
478 U.S.
Superior
Co. v.
proceeding. (Press-Enterprise
1,
L.Ed.2d
106 S.Ct.
hearing];
[transcript
preliminary
[92
2735]
(1984)
Court
Cal.
joined Burger’s opinion. separate opinion lead Justice Stewart wrote a Chief Justice guarantee the judgment stating: in the “The First and Fourteenth Amendments do not generated by government, they nor do public right of access to information or controlled guarantee right superior public generally. to that of the press basic of access once the press equal does no more than assure the and the access Constitution Accordingly, agree substantially opinion government opened has its doors. I with what (Houchins, say 438 U.S. at fn. omitted The Chief Justice has to on that score.” Stewart, (cone. J.).) dissenting opinion, wrote a which Justice Brennan opn. of Justice Stevens participate and Justice Blackmun did not joined. and Justice Powell Justice Marshall case. *28 Free Press v. (6th (NBC and Detroit
778, Subsidiary) P.2d 337] Ashcroft former, Press). In the (Detroit Free we extended 2002) F.3d 681 Cir. criminal line access to authority involving proceedings court’s of high context, Amendment . . . of access right civil “First finding qualified (NBC 1212.) In Subsidiary, supra, at p. civil trials and ordinary proceedings.” latter, line of extended the same the federal Sixth Circuit Court Appeals context, “First to the administrative finding qualified of authority Press, Free (Detroit hearings.” Amendment of access to right deportation supra, at p. NBC As we noted reliance on these cases is in unpersuasive.
Copley’s criminal Subsidiary, all of the court cases cites arose in the high context, extended First Amendment and the court has not its high expressly (NBC in those cases to other context. right-of-access any jurisprudence 1207, 1209; Tennessee Lane Subsidiary, v. at 20 Cal.4th see also pp. 509, 820, (2004) L.Ed.2d 124 S.Ct. have 541 U.S. 1978] [“we [158 to criminal that members of the have a of access recognized right public Amendment”].) secured the First we so extended Although proceedings in NBC Subsidiary, we limited the extension “to jurisprudence expressly ordinary civil and stressed that we were not general,” proceedings of access to addressing “any right governed by particular proceedings specific Moreover, (NBC 1212, 30, Subsidiary, added.) statutes.” at after fn. italics p. access, of concern that a constitutional acknowledging validity right “ limitations, ‘if not would warrant subjected practical theoretically permit- to sit and their ting everything contemporaneously eavesdrop upon ” does,’ government we that this concern “has been accounted for explained in decisions that have been careful not to extend the of access right public’s trial appel- beyond and filed documents adjudicative proceedings added, (NBC late courts.”26 omitted.) Subsidiary, italics fn. later, decision, a few months court issued such a Only high just holding could, in United Reporting that California without unanimously violating Amendment, First refuse to access to information regarding provide public (United Reporting, supra, arrestees and crime victims. 528 U.S. commissions, including, they may powers, Civil service “while be invested with mixed others, them, best, they among judicially to act in a are not courts. At power matter before are, bodies, quasi judicial power, proceeding something quite in the exercise of that distinct courts, courts, they as that term is used in the from and in no manner do constitute inferior (Chinn 580]; (1909) constitution.” 156 Cal. P. see also [state] City Vallejo v. Council (1949) hearing Swars 33 Cal.2d 873-874 [206 355] [in order, police justice’ civil was not “a ‘court of of dismissal service commission meaning sittings every justice public]; cf. providing within of” statute court of shall be McCartney v. Commission on Judicial 12 Cal.3d 520-521 Qualifications [rejecting judge’s open due claim to process constitutional hearing, reasoning that before Commission on Judicial “are neither proceedings Qualifications ”].) justice’ criminal nor before a ‘court of conclusion, did not even cite the majority opinion Notably, reaching Amendment of access right cases First finding court’s earlier qualified forth in framework set analytical and did not apply criminal proceedings, framework earlier cases or their analytical those earlier cases. Nor were those all that California agreed of which mentioned in separate opinions, (United the information in question. refuse to disclose could constitutionally Scalia, J.); id. at (cone. 41-42 opn. 528 U.S. at Reporting, supra, pp. (dis. J.); id. at 44-48 (cone. opn. 42-44 of Ginsburg, pp. pp. opn. Stevens, United J.).) Reporting Lower courts have subsequently applied *29 (Center to administrative records. no First Amendment of access right finding (D.C. 2003) 356 U.S. App.D.C. Justice Cir. Dept. Nat. Sec. Studies v. 918, of access to government First Amendment right 333 F.3d 935] [no attacks]; Amelkin v. McClure detained after terrorist records regarding persons 293, of access to 2000) right First Amendment (6th Cir. 205 F.3d 296 [no 2001) (N.D.Ga. Barnes 135 F.Supp.2d accident v. Spottsville police reports]; Herald, 2003) 1316, [same]; (1st Inc. Cir. see also In re Boston 1318-1323 . . . of access right[] applied only 321 F.3d 180 ha[s] [“constitutional above, on documents”].) reliance NBC Copley’s judicial light is cases criminal involving proceedings and the court Subsidiary high unavailing. reasons, Free is reliance on Detroit Press also
For several Copley’s First, the court decided there was whether the the only unpersuasive. question and the hearing, Amendment access to a deportation First guaranteed public whether the First declined to an on court expressly express opinion Amendment and documents from access guarantees transcripts public Press, F.3d at fn. (Detroit Free 303 hearings. supra, p. completed Thus, before us: little to say regarding question Detroit Free Press has records of access to right whether has a First Amendment public Copley Second, even to mention United Detroit Free Press failed the Commission.27 earlier and which directly which was decided three years Reporting, Amendment access to nonjudicial government addressed the of First question Houchins as a Detroit Free Press discounted incorrectly records. Finally, majority neither nor rejected by that “was accepted “plurality opinion” (Detroit moved from ...” away and that “the Court since Court” ha[d] statement, Press, 694-695.) In this making 303 F.3d at supra, Free pp. Stewart’s failed to that because Justice court in Detroit Free Press appreciate with what the lead said opinion in Houchins agreed concurring opinion gener- Amendment of access to information “right First alleged regarding (cone, U.S. at (Houchins, p. ated or controlled by government” Stewart, held in Houchins “that J.)), “a four-member majority” opn. right to attend has a constitutional regarding no whether express opinion We facts of this case do not Appeal explained, appeal hearings. As the Court Commission ante, (See fn. present question. Amendment . . . access to sources guarantee public First [does not] (San Mercury-News Municipal Jose
information under control.” government 655], fn. Cal.3d omitted.) The court in Detroit Free Press also failed to realize that in in United reaffirmed Houchins’s Reporting expressly seven court high justices could, without the First violating it in that California vitality by citing holding Amendment, records about all access to information deny police (United 40), and Reporting, supra, arrestees and crime victims 528 U.S. at Reporting agreed United that even the two with the dissenting justices (Id. Stevens, (dis. J.).) on this issue. For majority’s holding opn. reasons, Detroit Free Press is of little assistance here.28 these under Houchins, United Reporting we First Amendment reject Copley’s claim.29
Conclusion of the Court of is reversed and the matter judgment Appeal
remanded for further consistent with this proceedings opinion. *30 J., Kennard, J., Baxter, J., Moreno, J., J., C.
George, and Corrigan, concurred.
WERDEGAR, J., We considerin this the interest of the Dissenting. case here San in full public, represented by major Diego daily newspaper, disclosure of the records of a San Sheriff’s adminis- Diego County deputy’s trative of We also consider the of the appeal departmental extent discipline. his and out of deputy’s right eye. matters the keep private we must the majority correctly recognizes statutory interpret applicable Code, (CPRA) (Gov. in the Public language California Records Act et and its of the limitations on disclosure set forth in Penal seq.), incorporation Code section with the of the intent. goal Legislature’s implementing Faithful adherence to the of these will meaning statutory plain provisions ensure that the ultimate result in this case is consistent with the balance struck the Legislature the relative the regarding disclosing importance hand, secret inner on the one workings government, maintaining officer, the individual on other. privacy Free Press. Detroit disagreed We also note that several have and criticized courts with Justice, (Center Dept. Nat. Sec. Studies at p. 331 F.3d First Amendment 932 [no for attacks]; North right government regarding of access to detained after persons terrorist 198, 201, Jersey Group, Media (3d 2002) Inc. v. First Cir. 308 F.3d 204-205 [no Ashcroft right deportation hearings].) Amendment to attend light In of our conclusion under section 832.7 and Government Code section (k), requested protected subdivision we need not decide whether the information here is also (c). under Government Code section statutes, it incorrectly misconstrues the applicable Because the majority should remain of the administrative appeal holds that every aspect deputy’s secret, overval- majority name. so By doing, even including deputy’s interest in undervalues public’s interest privacy, ues deputy’s disclosure, careful balance the Legislature’s fails to ultimately implement area. I dissent. Accordingly, of the concerns in this competing
I Press, Press), Inc. publisher The Copley (Copley As majority explains, from the disclosure sought of the San Union-Tribune Diego newspaper, (the Commission) of certain Service Commission of San Civil County Diego on a sheriff’s hearing documents related to the Commission’s deputy disclosure, such of him. seeking from his proposed discipline department’s CPRA, safeguard which “was enacted in 1968 to Press relied on the to a is antithetical secrecy to the accountability government public, for the system ‘government people, people democratic [and] against “background legislative impa- The Act ‘was enacted people.’ (53 . . . .” government Ops.Cal.Atty.Gen. tience with secrecy ” (San (1983) 143 (1970).)’ Gabriel Tribune v. 415].) As this court has explained: “Implicit 771-772 should be accountable is the notion that government
the democratic process must have access In order to individuals verify accountability, for its actions. exercise arbitrary access checks against files. Such government permits However, a narrower secrecy political process. of official power of individuals whose personal but no less interest is privacy important 42 Cal.3d (CBS, Inc. v. Block affairs are recorded in files.” government omitted; *31 470], fus. see also Gov. Cal.Rptr. to govern- the CPRA that access enacting declaration [Legislature’s § a fundamental and necessary right”].) ment information “is rule of and disclo- CPRA with the begins general openness Although information, from disclosure 29 categories it exempts sure of government Code, are (Gov. permissive, “These exemptions materials.1 § authority discretionary endows the with agency The mandatory. [CPRA] favors interest when a dominating public override the statutory exceptions Block, If an agency 42 Cal.3d (CBS, supra, Inc. v. disclosure.” CPRA, by its denial justify under the it must for disclosure denies request from disclosure. the record in exempts question CPRA showing expressly Code, 6255, (a).) (Gov. subd. § Act thus include objectives the Public Records it: “The As one court describes (Black Panther disclosure.” the broad seas of enforced privacy upon of islands of
preservation 106].) Party Kehoe CPRA, under claim for disclosure Press’s
In denying Copley I need (like the majority) but statutory provisions, cited two Commission (section one, (k) subdivision Code section discuss Government in this chapter “[N]othing in relevant 6254(k)).2 part: That statute provides are any records disclosure of shall be construed require Records, of which is [IQ exempted the disclosure (k) . . . following: [][] “is not . . . .” This subdivision federal or state law prohibited pursuant Block, 656), but (CBS, Inc. v. 42 Cal.3d at independent exemption” case, real In this disclosure. against that protect other statutes incorporates Penal Code section 6254(k) in interest section allege incorporates parties records, law enforcement 832.7, two which renders confidential types by civil except “in criminal or any proceeding their disclosure prohibiting (Pen. Evidence Code.”3 and 1046 of the to Sections 1043 discovery pursuant Code, 832.7, officer or custodial The first are (a).) subd. type “[p]eace § (Ibid.) from such records. or information obtained officer records” personnel records, turn, Code section 832.8 as are defined in Penal Such personnel his or her by employing file under that individual’s name “any maintained made of material (Italics added.) category . . . .” first agency limited to personnel Penal Code section 832.7 is by expressly confidential or department. records maintained by employing agency confidential Penal The of law enforcement records made second type Government Code (and 832.7 thus from disclosure Code section protected obtained from such 6254(k)) are “records information records] [or local to Section 832.5” (Pen. any agency pursuant state or maintained Code, i.e., added), to citizen (a), relating subd. italics § (a)(1) Penal section 832.5 states Subdivision Code complaints. “[e]ach in this state must “estab- employs peace officers” members of the against lish a to investigate complaints by public” procedure (b) that such (Italics added.) their Subdivision requires complaints personnel. (c), which The relied also on Government Code section Commission disclosure of “[NJothing chapter require be construed to provides pertinent part: in this shall files, Personnel, medical, [|] (c) or similar following: records that are [][]... bulk personal privacy.” of which would constitute an unwarranted invasion disclosure however, records, provision. under the terms of this With of the Commission’s do not fall (see that file Pen. file and information obtained from exception deputy’s actual (a)), statutory set forth in section exception from disclosure *32 (c) Copley records from no on which to withhold the Commission’s provides subdivision basis Press. right to disclosure of the Commission’s Although Press also a constitutional claims records, find disclosure is the issue inasmuch as I would I would not reach constitutional People (See Brown 31 Cal.4th required under the CPRA. statutory claim is questions if a should decline to reach constitutional 1137] [courts dispositive].) language application of Penal Code agree majority preclude that this does not I with ante, 1284-1286.) (Maj. opn., pp. as here. proceedings, section 832.7 to administrative related be retained for at least five either in the officer’s any reports years file a “general or in file personnel designated by separate department or that official determination agency,” provided “prior any regarding transfer, action,” or described in promotion, disciplinary complaints (c) subdivision must be “removed from the general officer’s file personnel file or placed separate designated by agency.” [a] (c) Subdivision or a provides complaints any portion complaint “frivolous, (italics added) officer’s “employing agency” finds to be . . . unfounded or exonerated” must not be maintained in the officer’s general “ ” (d)(1) file. defines file’ personnel Finally, ‘[g]eneral personnel as “the file maintained by the officer’s agency” containing employment records.
Considering subdivisions of Penal Code section 832.5 it is together, the Legislature used the terms to refer to apparent “agency” “department” the officer involved. files deemed public entity employs material, confidential under Penal Code section 832.7’s second category first, like its are limited to those maintained officer’s by peace employing agency or This be a department. agency may city police department (employ- officer), a a ing county sheriff’s police department (employing deputy sheriff) or the of Corrections and Department Rehabilitation (employing officer). correctional dolls,
The law to this case is not unlike a applicable set which nesting one law within fits another. We with the rule of begin general disclosure of (the CPRA), government records move to a to the possible exception general Code, (Gov. 6254(k)), rule which in turn a law incorporates establishing § (Pen. 832.7), of certain law enforcement confidentiality which renders confidential officer specifically records as peace defined Penal Code section and records maintained state by by any local as defined Penal Code section both of which are limited to files maintained It agency. is in these employing officer’s definitions, final located within this network of self-referential statutory deep that the majority to strike because provisions, purports gold. Declaring the Commission has been administrative designated provide appeals of the San Sheriff’s employees Diego County majority Department, “it is reasonable to conclude that for the relevant opines purposes applying case, Commission statutes in this ‘the functioning part employing and that file it maintains agency’ regarding constitutes a file ‘maintained ... agency’ employing [the officer’s] ante, within the of section 832.8.” italics meaning (Maj. opn., added.)
What the has found is fool’s No amount of majority gold. judicial juggling commission can convert a civil service into the legal county’s legerdemain *33 no Certainly officers. law enforcement the county’s that agency employs none—showing cites the majority in the record—and evidence appears from this deputy; a job application has ever accepted the Commission him; him; a or hired issued paycheck check conducted background benefits; the medical, had power or retirement his dental him about contacted him; assignments. his day-to-day had over any say demote or promote Sheriff’s County Depart- Diego the San by That the was employed deputy Commission, ment, not the plain. the characterization—dubious majority’s as accurate
Even accepting Penal Code section 832.7 is “functioning,” how the Commission best—of function or act as all entities that merely within its embrace does not sweep the the files be maintained by it of the agency; requires part employing Code, Pen. 832.8 is the (See actually agency. § [file entity employing id.., 832.5, (a)(1) subd. or her agency”]; § maintained his “by employing in this state that employs peace or agency [referring department “[e]ach otherwise, far from the plain the officers”].) majority strays In concluding statutory language. meaning applicable agency, that if the Commission is not employing
The majority posits unfounded need not be Commission finds frivolous or citizen complaint file, a finds majority result removed but can remain deputy’s Where, ante, is baseless. This concern unreasonable. (Maj. opn., here, to hear commission is designated appeals as civil service county cases, must abide agency the officer’s employing officer “ final, and decisions shall be the commission’s decision. ‘The Commission’s ” County shall be the courts on appeal.’ unless overturned followed (Civil Service Com. v. here found 159].) had the Commission example, frivolous, the sheriff’s absent to be against department, complaint deputy that decision. all and abide by would in respects adopt appeal, presumably retain the complaint conclusion—that would contrary The Commission, and not was the file on the that it ground the deputy’s personnel or unfounded—seems that had found the frivolous the department, complaint that a says Certainly nothing majority supports speculation farfetched. deci could) the Commission’s (or disregard enforcement would law sion on appeal. tack, that the Commis- concludes majority a somewhat different
Taking . . . to Section records “maintained sion’s own pursuant qualify are confidential under (a)) and thus (Pen. 832.5” Code section that because Penal reasons majority scheme. statutory citizen for at least five years complaints the retention requiring maintain that must entity does not findings, specify related reports *34 these records and “does retained expressly specify ‘complaints pursuant to be maintained ... in a may file the separate designated [the statute] ” ante, or department at agency’ (maj. 1291), “it is reasonable opn., conclude that because the Commission has been to hear designated disciplin- its ary appeals, under (a), section subdivision qualify as ” ‘records maintained state or local by any to Section agency pursuant 832.5’ (ibid.). But the absence of evidence or any in the suggestion record that the sheriff’s has in fact department the Commission to designated retain a file of for five as complaints years, required by (b), wholly the undermines majority’s on this analysis point.
The majority next argues conclusion the Commission the employs correct, sheriff must be deputy because a contrary conclusion would render the scope available to confidentiality officers “on several dependent fortuities: the an and the entity hearing appeal timing request.” (Maj. ante, opn., Neither rationale is persuasive.
Because a law enforcement has discretion to decide the mechanism for administrative review of (Gov. matters 3304.5), different agencies will choose likely different mechanisms. The majority assumes—with no erroneously from or support legal authority legislative history—that regardless here, of the review (or, mechanism chosen im- on the posed agency), level of confidentiality to the attaching record of a peace officer’s must be the proposed discipline same. (Maj. opn., ante, 1292-1293.) But no such pp. is “equality” principle apparent scheme, statutory nor is the of different possibility levels of mandatory disclosure under the CPRA thereto. contrary By to the limiting exception CPRA files maintained “employing agency,” Legisla- ture left that law open possibility enforcement-related files maintained by other would be public agencies disclosure under the subject CPRA.
A law enforcement have number of agency may any reasons to for provide independent commission—rather than in-house—review of police disciplin- matters, with its ary attendant greater concerns public scrutiny. Community about police brutality, oversight counsel imposed by city board county (as here), charter mandate supervisors, (does the size of the it department have several hundred two?), officers or just negotiated outcomes between a rank-and-file, and the union department all representing these factors can no doubt in the choice of an play part commission to independent provide administrative review. That an exists to option less disclosure to the provide does not logically preclude option providing greater openness The government. fails to a law majority why enforcement explain agency’s local choice to use an government’s administrative review mechanism involves more disclosure to the is unreasonable. community Commission is not considered contends if the majority also on arbitrarily disclosure would turn level of employing agency,
deputy’s if according majority, only to disclose. timing request depart- the sheriff’s the sheriff’s deputy’s employer, *35 maintain the record of his disciplinary ment would be statutorily required case, could be had (Pen. (b).) In that disclosure appeal. CPRA; its destroyed under the but if the Commission from the Commission the the the record in sheriff’s department’s records before the copy request, maintained a record” would confidentiality “personnel possession acquire its (Maj. opn., to Penal Code section disclosure. precluding pursuant ante, 1292-1293.) at pp. If the record of the is majority appeal
The is incorrect. Commission’s CPRA, could not under the sheriff’s subject disclosure file. shield it from disclosure it by placing deputy’s personnel Williams v. Court (1993) 5 Superior Cal.4th 337 Cal.Rptr.2d we to CPRA disclosure set is instructive. There addressed the exception (f), concerning forth in Government Code section law in Williams whether the enforcement files. investigatory disputed parties information in files would confidential after the investigation such remain ended. This court even the investigation concluded after applied exception ended, but also that “the law . . that a stated does not . provide public agency disclosure, nature, shield a record from may regardless simply by public ” Court, (Williams it in a file labelled placing ‘investigatory.’ in New York Times Co. v. Superior the Court of p. Similarly, Appeal (1997) 410], commenting on Cal.App.4th “The and ‘internal labels of records’ possibility, opined: ‘personnel are an investigation’ expansive, elasticity menacing captivatingly present A scrutiny may to the servant not principle government. public public avoid such into file what would otherwise be a scrutiny by placing personnel unrestricted information. A to the would weaken and contrary conclusion Act.” Public Records Because a law enforcement cannot despoil into avoid the mandate the CPRA a document a disclosable placing file, on officer’s does not turn confidentiality level of peace personnel of the timing disclosure request. the fiction that reasons that failure
Finally, majority adopt would impact Commission employing agency “significantly deputy’s with a of administrative right presenting deputies peace appeal,” retaining on vindicating rights choice” of their appeal “[h]obson’s ante, their A confidentiality (Maj. opn., records. personnel choice to take or reject hobson’s is defined as either “an freedom apparent (Webster’s offered when in actual fact no such freedom exists” 3d something 1) Internat. or “the one necessity accepting New Dict. col. definition, (ibid,.). peace of two As to first equally objectionable things” officer has a viable facing disciplinary charges choice: he to the may appeal Commission, in which case the (but before Commission not proceedings CPRA, actual file) his will be personnel disclosable under the or he can decline to his appeal, secret. The accept discipline keep everything who, officer’s situation is no than different that of civil in order to litigant court, vindicate legal rights in must submit to and endure a pretrial discovery trial. That a choice come may with some freighted disadvantages does definition, not render it As for the second illusory. even if these choices as the officer, are majority suggests to the “equally objectionable” does majority officer explain why facing is entitled to an discipline pursue administrative free from uncomfortable choices. the confi Guarding file, dentiality actual maintained deputy’s the sheriff’s but for the department, allowing disclosure of other information having *36 file, outside that origin burden on a administrative hardly places deputy’s right to so intolerable and appeal that we conclude the objectionable may know, Legislature could not have intended that result. far So as we a peace officer be desirous of may his heard an having appeal by independent body, one drawn from outside his immediate chain of command. the Although “[tjhere local states is no evidence the majority intended-to Legislature give discretion to force to agencies officers make” choice between peace appeal ante, and 1296), disclosure there (maj. opn., likewise is no evidence the Indeed, intended to preclude Legislature such discretion. because Government Code section 3304.5 leaves the details” of an officer’s “precise right administrative to be determined individual local law enforcement appeal4 by (Coloca San County agencies Diego Cal.App.4th 3]), is that the intended to equally likely Legislature give such the discretion to more agencies disclosure on so as require appeal, long established, here, the review procedures do not violate any express provision statutory scheme set forth in Penal Code sections 832.7, 832.8, or in the CPRA.
II No doubt San chose the Diego Commission to hear officer County for a reason. The Commission is “a appeals specific ‘quasi-independent’ county contrast to most which are agency. county agencies, directly [citation], the board of the supervised by Commission’s supervisors unique review function demands which is for independence specifically provided (as in section of the San 904.1 Charter amended Dec. Diego County action, (b) Government provides: punitive Code section “No nor denial merit, grounds of promotion by any public agency against on other than shall be undertaken any safety successfully completed probationary period may officer who has the be required by employing agency public safety his or her the with an providing without officer opportunity appeal.” for administrative the County body is the administrative
1982): appeals ‘The Commission the Commission this Charter. Upon appeal, authorized by matters order, affirm, make may revoke or may modify any under jurisdiction. with in connection appeals orders appropriate final, County the by be followed shall be shall Commission’s decisions ” (Civil Service Com. v. overturned the courts on by appeal.’ unless Court, omitted.)5 italics being disciplined the deputy the does not employ
Because Commission case, Only under the CPRA. are open this its records presumptively San maintained deputy’s employer—the extent records qualifying those obtained from information County Department—or Sheriff’s Diego Code, hearing are (Pen. (a)) introduced § confidential Code under Government would the Commission’s records remain 6254(k) presented Penal Code section 832.7. Even information section necessarily file would not that is duplicated Commission Code, Pen. 6254(k) be rendered confidential (incorporating if file itself. 832.7) Only if it had a from the personnel source independent § be 832.7), that file as would (Pen. information “obtained from” evidence, read disclosure case if file were into would exception of his alleged For of an officer and nature name apply. example, derived before Commission may misconduct be from testimony *37 the alleged herself from other to eyewitnesses witness or complaining As observed: “Testimony misconduct. the Court of below Appeal events, the from not maintained in witness to documents percipient file, is information section 832.7 even subject though not personnel in the personnel information identical to or of information may duplicative be hand, file.” the in the file that does not On other information investigative at the come out remains confidential. hearing re unlike In Reeves assertions, 35 Cal.4th to the Contrary majority’s ante, 1218], (maj. opn., cited the majority the scheme to officer’s 22), statutory fn. reference in the actual By language is not agency” ambiguous. ignoring “employing the majority unjusti- Code sections 832.7 and CPRA Penal law files enforcement enlarges confidentiality personnel fiably to the the amount of information disclosable concomitantly reduces are performing how our law enforcement officers under the CPRA regarding view of is relies on its what throughout their duties. Although majority Court, does not establish That Civil Service Com. ante, 1289), majority (maj. p.at as the independence purposes” opn., “for all Commission’s purpose. mean the Commission lacks independence opines, not does of course Diego County designate Significantly, majority no reason San would identifies independence. other than Commission’s disciplinary appeals, Commission to hear “reasonable,” court, I submit it is for the Legislature, and not this make decision policy concerning balance between a appropriate right of his her and the confidentiality records public’s right accountability own government. view of what imposing reasonable, from the majority clear departs statutory language should be our only guide. sheriff,
Because I the Commission disagree this I employs deputy would find the are Commission’s under Penal Code section privileged 832.7 and thus should been have disclosed under the CPRA. Because otherwise, finds I majority dissent.