PASADENA POLICE OFFICERS ASSOCIATION et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; CITY OF PASADENA et al., Real Parties in Interest.
No. B260332
Second Dist., Div. One.
Sept. 10, 2015.
240 Cal. App. 4th 268
Green & Shinee and Richard A. Shinee for Petitioners.
No appearance for Respondent.
Michele Beal Bagneris, City Attorney, and Javan N. Rad, Chief Assistant City Attorney, for Real Party in Interest City of Pasadena.
Gronemeier & Associates, Dale L. Gronemeier and Elbie J. Hickambottom, Jr., for Real Parties in Interest Anya Slaughter, Pasadena Chapter of the National Association for the Advancement of Colored People, Interdenominational Ministerial Alliance of Greater Pasadena, ACT and Kristin Ockershauser.
Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox, Jonathan L. Segal; Los Angeles Times Communications, Jeff Glasser; Jassy Vick Carolan, Jean-Paul Jassy and Kevin L. Vick for Real Party in Interest Los Angeles Times Communications.
OPINION
JOHNSON, J.—In the wake of a March 2012 shooting death of unarmed teenager Kendrec McDade (McDade) by two members of the Pasadena Police Department (PPD), real party in interest City of Pasadena (City) retained an independent consultant, the Office of Independent Review Group (OIR), to review departmental policies. After OIR completed its review, real party in interest and intervener the Los Angeles Times (Times) and real parties in interest and interveners Anya Slaughter, Kris Ockershauser, the Pasadena Branch of the National Association for the Advancement of Colored People, ACT, the Interdenominational Ministerial Alliance of Greater Pasadena (collectively, the Slaughter parties or, when mentioned in conjunction with the Times, Interveners) made requests under the California Public Records Act (PRA or the Act) (
Petitioners the Pasadena Police Officers Association (PPOA) and Pasadena Police Officers Matthew Griffin and Jeffrey Newlen (the officers or, in conjunction with the PPOA, collectively, petitioners) initiated this reverse
We deny the petition by which PPOA and the officers seek to preclude disclosure of the entire Report or, in the alternative, the production of a more heavily redacted Report. The trial court correctly concluded that the Report itself is a public document. The court also correctly determined that portions of the Report contain confidential personnel information exempt from disclosure under the PRA. The trial court‘s redactions, however, went too far. Our review of the sealed materials in the record reveals that some of the material the court ordered redacted from the Report is unrelated to personnel files of individual officers. The inappropriately redacted material includes analyses of the PPD‘s administrative investigation and departmental policies, descriptions of the PPD‘s responsiveness (or the absence thereof), and recommendations by the OIR, none of which is privileged under the PRA.2 Accordingly, we deny the petition and remand the matter to the superior court with directions to conduct new proceedings, and issue a new or modified judgment ordering appropriate redactions to the Report in accordance with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On March 24, 2012, just after 11:00 p.m., the officers responded to a 911 call. The caller claimed to have been robbed at gunpoint by two men. Much later, the caller admitted he had falsely reported that the robbers were armed.
Responding to the dispatch broadcast, the officers proceeded in their squad car to the area of the alleged crime. As they approached the intersection, McDade, a 19-year-old African-American male, began running. The officers pursued McDade about two blocks. Officer Griffin fired four shots at McDade from inside the patrol car. Officer Newlen, having previously exited the squad car to give chase, fired four more shots, killing McDade. It was later discovered that McDade was not armed.
The shooting spawned multiple investigations, a citizen‘s complaint (filed on Mar. 25, 2012), and a federal lawsuit by McDade‘s mother, Anya
The PPD conducted its own investigations. Two were conducted immediately after the McDade shooting. The purpose of the first investigation, undertaken by the PPD‘s criminal investigations division (CID), was to determine whether the officers committed a crime. Different PPD investigators conducted a separate internal affairs (IA) investigation. The PPD investigated the March 25, 2012 citizen complaint in the course of its CID and IA investigations. In March 2013, the PPD conducted a third investigation: an administrative review based on evidence collected during the CID and IA investigations. That administrative review concluded with a determination that the officers acted within departmental policy because they reasonably believed McDade was armed and assaulting an officer, and shot him in self-defense and in defense of one another.
The officers were interrogated and gave voluntary statements to investigators in the course of the CID investigation. Those statements were considered as part of the district attorney‘s analysis in determining whether to file criminal charges. The officers were deposed in Slaughter‘s federal civil rights action against them. At their depositions the officers were questioned about the shooting and the subsequent investigations, and each used the statement he had given during the CID investigation to refresh his recollection.3 The officers did not provide additional statements in connection with either the IA investigation or the PPD‘s administrative review.
On an unspecified date soon after the shooting in March 2012 the City retained OIR as a private consultant to conduct an independent review of the McDade shooting. According to the declaration submitted in this action by PPD Deputy Chief Darryl Qualls, “[t]he purpose of the OIR Group‘s review, memorialized in the OIR Report, was to serve as a review of the incident for the benefit of the department and to evaluate how the [PPD] does business in the areas reviewed.” Deputy Chief Qualls also declared that the PPD would not use OIR‘s Report “to (1) affect the officers’ advancement; (2) conduct an appraisal of the officers; or (3) consider discipline of the officers.” After reviewing the Report and other evidence, the trial court found the City
OIR‘s 70-page Report was completed in August 2014. Interveners submitted requests to the City for the Report on the McDade shooting, pursuant to the PRA. On September 3, 2014, while the PRA requests remained pending, PPOA and the officers initiated the underlying reverse PRA action, and sought and obtained a temporary restraining order (TRO) preventing release of the Report. On September 9, 2014, the trial court vacated the TRO on the ground the matter was not yet ripe, and ordered the City to respond to the Interveners’ PRA requests and to give petitioners notice if it intended to disclose the Report. Interveners submitted new or renewed PRA requests for the Report to the City on September 9, 2014.
On September 11, 2014, the City announced that unless the court directed otherwise, it planned to release a redacted copy of the Report the following week. The City stated it intended to redact portions of the Report containing confidential police officer personnel records.4
On September 16, 2014, petitioners filed an ex parte application seeking to enjoin the City from releasing any portion of the Report. The same day, the Times and others filed motions seeking to intervene in this action and writ petitions seeking to compel release of the Report without redactions. The trial court granted leave to intervene.
On October 16, 2014, after extensive briefing and oral argument, the trial court issued a 16-page “Decision on Application for Injunctive Relief-Partly Granted.” The court acknowledged the parties’ competing positions regarding disclosure of the Report: Consistent with their positions here, Interveners argued the Report is a public record and should be disclosed in its entirety. Petitioners asserted that the Report is a confidential personnel record entirely exempt from disclosure under the Pitchess5 statutes (
The trial court found the Report was indisputably a “public record,” in which the “public‘s interest in disclosure . . . is ‘particularly great’ because it relates to ‘officer involved shootings’ and governmental policies regarding
Before the trial court, Interveners argued the officers had waived any arguable privilege or exemption from disclosure of the Report by placing much of the information they sought to suppress in the public domain in the course of Slaughter‘s federal court action, during which portions of the officers’ deposition transcripts had been filed in connection with a summary judgment motion. No protective order was sought and those transcripts were not filed under seal. At his deposition, each officer had testified about the circumstances surrounding the McDade shooting, including his own actions, tactics and concerns. The officers also used the statements they made to detectives during the CID investigation to refresh their recollections. The court rejected Interveners’ assertion of waiver. It concluded that, although “the Officers may have waived any confidentiality associated with the information or communications in the public domain,” information contained in or derived from their personnel files retained its confidential status regardless of whether it was also available elsewhere in an unprotected document.
Interveners also argued that the officers and the City waived confidentiality and privilege exemptions once the City disclosed the Report to petitioners. In other words, having disclosed the Report to members of the public (i.e., the officers), the City was required to make the Report available for public inspection. The court also rejected this contention. It observed that police officers have a statutory right to inspect their personnel files. (
In conclusion, the trial court found that those portions of the Report that “‘recite[] or rel[y] upon the administrative investigation‘” are exempt from disclosure under the Pitchess statutes. It found the administrative and criminal investigations were clearly separate investigations. The latter investigation did not constitute a personnel record and did “not reveal any information about the ‘advancement, appraisal, or discipline’ of a particular officer. See
On November 26, 2014, petitioners filed the instant petition for writ of mandate with this court, seeking review of the trial court‘s disclosure order. No other party filed a petition. We stayed the trial court‘s order pending our decision, and requested briefing. (
Subsequent events at the Court of Appeal
1. Petitioners’ publicly filed reply brief containing redacted material is sealed, then reinstated
On March 16, 2015, petitioners filed a “Reply to Preliminary Opposition to [the Times‘] Petition for Writ of Mandate and Opposition to Petition for Writ of Mandate” (Reply brief).6 On March 25, 2015, petitioners notified this court that the Reply brief filed on March 16 “inadvertently, and mistakenly, included verbatim excerpts of the OIR[] Report,” which are the subject of this proceeding and among the materials petitioners maintain are confidential peace officer personnel records. Petitioners asked this court to seal their March 16, 2015 Reply brief, requested permission to substitute an accompanying redacted reply brief (omitting the Report‘s excerpts) in the public record, and requested an order requiring the parties to return the March 16 Reply brief. On March 25, 2015, we granted petitioners’ request.
Interveners reacted immediately, requesting that we vacate our March 25 order. They argued that, in the guise of a perfunctory administrative request to remedy a filing mistake, petitioners’ March 25 motion actually sought an unconstitutional prior restraint on speech and sealing order.7 Interveners noted that they and numerous third parties lawfully received the unredacted Reply brief (which was publicly available for nine days before the motion to seal was filed). Accordingly, they argued that any order punishing or preventing dissemination of information in the March 16 Reply brief was a presumptively unconstitutional First Amendment violation, as to which petitioners
In response, petitioners argued they were not required to provide advance notice or an opportunity to respond in connection with their motion to seal, that this court‘s March 25 order was not an unconstitutional prior restraint, and that Interveners had unlawfully released the sealed reply brief after we issued our March 25 order.8
On April 1, 2015, this court notified the parties that it was considering vacating its March 25, 2015 order sealing petitioners’ March 16 Reply brief, and gave the parties an opportunity to respond. They did so and, on April 17, 2015, we vacated our March 25 order, and unsealed and reinstated petitioners’ March 16, 2015 Reply brief in its entirety.
2. The Slaughter parties move to dismiss this proceeding
On April 20, 2015, the Slaughter parties filed a motion to dismiss writ proceeding and to remand to trial court with instructions (motion to dismiss). They argued that because petitioners’ counsel publically filed the Reply brief containing a significant portion of the material petitioners seek here to suppress without contemporaneously asserting privilege on behalf of the officers, petitioners waived any privilege that may have attached with respect to the Report. In short, they asserted that this writ proceeding had been rendered moot. The Slaughter parties also argued that, in addition to dismissing the petition, this court should remand the matter with instructions to the trial court to issue an order to show cause to determine whether the entire unredacted Report should be released to Interveners.
Petitioners and the City each opposed the motion to dismiss. The City took no position with respect to a straightforward dismissal of this action. However, because the Slaughter parties chose not to file a writ petition seeking
3. The court invites briefing
As noted above, no Intervener filed a petition seeking issuance of an extraordinary writ following the trial court‘s November 13, 2014 judgment. Nevertheless, collectively, Interveners seek affirmative relief in this action. They urge this court to find that, under the guise of protecting statutorily privileged personnel information, the trial court‘s ruling erroneously shields from disclosure information which must be publically released, specifically criticisms in the Report of the PPD‘s administrative review. On April 22, 2015, we invited the parties to submit letter briefs addressing the issue of “[w]hat, if any, authority . . . this Court [has] to consider/grant relief sought by Interveners?” The parties responded, submitting initial and responsive letter briefs.
DISCUSSION
Petitioners maintain the trial court‘s order must be reversed. They contend that the entire Report is privileged because it “is, in effect, a personnel file, or at the very least, substantial parts of the [Report] which the Court below refused to redact are clearly personnel material in nature and type,” as described in
The Slaughter parties argue that the public has a strong interest in the Report‘s criticisms of the PPD‘s handling and administrative investigation of the McDade incident, particularly as to lessons it contains to prevent similar incidents. They also maintain that, to the extent the order redacting certain material in the Report is legally defensible, the court was overly protective of the officers’ privacy and improperly treated publicly available material (the officers’ testimony in the federal court action) and criticisms of the PPD‘s
The City contends the trial court got it right, and the petition must be denied.
The Times insists that the petition be denied and the Report disclosed in its entirety. They assert that the Pitchess statutes protect only enumerated categories of confidential material not at issue here, and that petitioners’ asserted secrecy interests do not clearly outweigh the significant public interest in full disclosure. The Times also argues that, because information used by OIR to prepare its Report was voluntarily and publicly disclosed, any right the City or officers may have had to assert confidentiality as to that information was waived.
We conclude that, in large measure, the trial court‘s well-reasoned decision is correct. The Report is a public document that contains some privileged personnel information statutorily exempt from disclosure, and no privileges have been waived. However, we also find that the trial court‘s redactions go too far to the extent they prevent disclosure of OIR analyses of the PPD‘s administrative review and investigation, which are not criticisms or appraisals directed at officer conduct.
1. The PRA
The Legislature enacted the PRA in 1968 to clarify the scope of the public‘s right to inspect records. (County of Los Angeles v. Superior Court (2000) 82 Cal.App.4th 819, 825 [98 Cal.Rptr.2d 564].) The PRA was intended to increase freedom of information by giving members of the public access to information in the possession of public agencies. (Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 66-67 [172 Cal.Rptr.3d 56, 325 P.3d 460] (Long Beach Police); Los Angeles Unified School Dist. v. Superior Court (2014) 228 Cal.App.4th 222, 237 [175 Cal.Rptr.3d 90] (Los Angeles Unified);
Public policy favors disclosure and, generally speaking, a public record is subject to disclosure unless the PRA provides otherwise. (County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1320 [89 Cal.Rptr.3d 374]; see Williams v. Superior Court (1993) 5 Cal.4th 337, 346 [19 Cal.Rptr.2d 882, 852 P.2d 377] [“all public records are subject to disclosure unless the Legislature has expressly provided to the contrary“].) The California Supreme Court has found this policy especially salient when the subject is law enforcement: “‘In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers.‘” (Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 297 [64 Cal.Rptr.3d 661, 165 P.3d 462] (Commission on Peace Officer Standards); see Long Beach Police, supra, 59 Cal.4th at p. 74.) Given the extraordinary authority with which they are entrusted, the need for transparency, accountability and public access to information is particularly acute when the information sought involves the conduct of police officers. In Commission on Peace Officer Standards, the Supreme Court observed, “The public‘s legitimate interest in the identity and activities of peace officers is even greater than its interest in those of the average public servant. ‘Law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state. In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers.’ [Citation.] ‘It is indisputable that law enforcement is a primary function of local government and that the public has a far greater interest in the qualifications and conduct of law enforcement officers, even at, and perhaps especially at, an “on the street” level than in the qualifications and conduct of other comparably low-ranking government employees performing more proprietary functions. The abuse of a patrolman‘s office can have great potentiality for social harm . . . .‘” (Commission on Peace Officer Standards, at pp. 297-298, fn. omitted; see Long Beach Police, at p. 74 [observing that the public‘s interest in and need for access to information regarding law enforcement is particularly acute in the context of police officers’ use of deadly force].)
The trial court‘s construction and “interpretation of the PRA and its application to undisputed facts present questions of law subject to de novo . . . review.” (CBS Broadcasting Inc. v. Superior Court (2001) 91 Cal.App.4th 892, 906 [110 Cal.Rptr.2d 889]; see County of Los Angeles, supra, 211 Cal.App.4th at p. 62.) We apply the substantial evidence test to the court‘s express or implied factual determinations. (County of Los Angeles, at p. 62; Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065, 1072 [44 Cal.Rptr.3d 663, 136 P.3d 194].)
3. The PRA favors public disclosure except where privacy rights outweigh the public‘s interest in disclosure
a. Exceptions to disclosure
The right to obtain public records is not absolute. (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1282 [48 Cal.Rptr.3d 183, 141 P.3d 288] (Copley Press).) Under the PRA the public has a right to inspect public records unless an exception applies. (
We are concerned here with one exception to the PRA. That exception protects from disclosure “[r]ecords, the disclosure of which is exempted
b. Pitchess protections
The law governing protection for the privacy of police officers in California is found in a series of statutes commonly referred to as ”Pitchess statutes,” specifically
As employed in the Pitchess statutes, the term “personnel records” refers to any file maintained under an individual‘s name by his or her employing agency and containing records related to “[e]mployee advancement, appraisal, or discipline,” “[c]omplaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties,” and “[a]ny other information the disclosure of which would constitute an unwarranted invasion of personal privacy.” (
Also protected as confidential are an agency‘s investigations of citizen complaints. “Under the Pitchess statutes, a public entity that employs peace officers must investigate and retain citizen complaints of any officer misconduct, such as the use of excessive force. (
c. Decisional authority
Three recent California Supreme Court cases—Copley Press, supra, 39 Cal.4th 1272, Commission on Peace Officer Standards, supra, 42 Cal.4th 278 and Long Beach Police, supra, 59 Cal.4th 59—discuss the interplay between Pitchess protections and the PRA, and establish the framework for our discussion.
At issue in Copley Press, supra, 39 Cal.4th 1272, was whether a news agency was entitled to records of a civil service commission regarding a deputy sheriff‘s administrative appeal of his termination for disciplinary reasons. The appellate court ordered the records disclosed, reasoning that
The Supreme Court rejected this interpretation, concluding that officers’ disciplinary records are privileged even where those records are generated by an outside agency. The court found the civil service commission records of the deputy‘s appeal constituted confidential “‘personnel records,‘” exempt from disclosure under the Pitchess statutes. (Copley Press, supra, 39 Cal.4th at pp. 1286-1296.) There is nothing in the language or legislative history of the Pitchess statutes to suggest that a police officer‘s privacy rights are entitled to less protection because his or her employer uses an outside agency to conduct administrative appeals. (Copley Press, at p. 1295.) Copley Press also rejected the appellate court‘s conclusion that disclosure of the identity of the appealing deputy was required, noting the Pitchess statutes were “designed to protect, among other things, ‘the identity of officers’ subject to [citizen] complaints.” (Copley Press, at p. 1297, citing
The Supreme Court reversed the Court of Appeal, found the information was not exempt under the Pitchess statutes, and ordered it disclosed. (Commission on Peace Officer Standards, supra, 42 Cal.4th at pp. 298-303.) A majority of the court found, however, that information in the database would be exempt from disclosure if it had been “obtained from” personnel records maintained by the officers’ employing agencies. (Id. at p. 289.) Notably, the court also held that information does not become confidential for purposes of the Pitchess statutes merely because it is derived from a personnel file that also contains confidential information. (Commission on Peace Officer Standards, at p. 289.) “[P]eace officer personnel records include only the types of information enumerated in [Penal Code] section 832.8.” (Id. at p. 293.) Because the officers’ names and requested employment information were not within any enumerated category, that information must be disclosed. (Id. at pp. 294-299.)
In Commission on Peace Officer Standards, supra, 42 Cal.4th 278, the court stressed that its decision in Copley Press, supra, 39 Cal.4th 1272 was expressly “qualified,” and limited to the specific linking of an officer with a disciplinary hearing. (Commission on Peace Officer Standards, at p. 298.) Relying on the statutory language, the court narrowly construed the term “‘personal data‘” as precluding disclosure of sensitive information such as marital status, home address and officer discipline. (Id. at pp. 294-295.) It refused to expand the exemption, explaining that, “[w]ithout a more specific indication in the statute, we hesitate to conclude that the Legislature intended to classify the identity of a public official whose activities are a matter of serious public concern as ‘personal data.‘” (Id. at p. 296.)
Most recently, in Long Beach Police, supra, 59 Cal.4th 59, the court addressed a PRA request for the identities of officers involved in the fatal shooting of an unarmed man, as well as shootings that resulted in serious injury or death within a six-year period. (59 Cal.4th at p. 71.) The city and police officers resisted disclosure, arguing the information was covered by the Pitchess statutes’ confidentiality protections for personnel records (
The California Supreme Court was not persuaded. It reaffirmed the mandate that courts must adhere to limits drawn by the Legislature in the Pitchess statutes. It
Taken together, Copley Press, supra, 39 Cal.4th 1272, Commission on Police Officer Standards, supra, 42 Cal.4th 278 and Long Beach Police, supra, 59 Cal.4th 59 reflect express limitations on the reach of the Pitchess statutes. As succinctly summed up by the trial court, it is now established that “disciplinary records of peace officers are protected by privilege under the Pitchess statutes no matter where those records are generated. . . . Information which is not itself a personnel record is nevertheless protected if it was obtained from a peace officer‘s personnel record. . . . Only records generated in connection with an administrative appraisal or discipline qualify as Pitchess protected personnel records; records generated as part of an internal or administrative investigation of the officer generally are confidential, but other records about an incident are not.”
4. Portions of the Report are exempt from disclosure under the Act
[REDACTED] There can be no legitimate dispute that the Report is a public record. The term “public records” is broad, and includes “any writing containing information relating to the conduct of the public‘s business prepared, owned, used, or retained by any state or local agency.” (
a. The Report was not prepared in response to a citizen complaint
Petitioners argue the Report falls within the ambit of
b. Portions of the Report are related to the administrative investigation of the officers and are therefore exempt from disclosure.
The PPD commissioned OIR to prepare the Report for two related, broad purposes: (1) to analyze the McDade shooting and its aftermath for the purpose of determining what lessons could be learned from the incident and (2) to recommend institutional reforms. There is no indication it was intended to be used in connection with performance appraisals, or the advancement or discipline of the officers, and the PPD has expressly affirmed that the Report will not be considered in future employment decisions involving those officers. Although the McDade shooting was the catalyst for the Report and provided the lens through which OIR focused its evaluation, the Report looks beyond the conduct of the individual officers. It presents an overview of the PPD‘s criminal and administrative investigations into the shooting, evaluates the manner in which the PPD‘s procedures and practices may have fallen short, and recommends institutional improvements. Any analyses in the
[REDACTED] Petitioners have the burden to prove the Report is exempt from disclosure under
As the trial court correctly found, the Report contains privileged information. The protection for personnel records under
c. Nonprivileged portions of the Report are not so intertwined with privileged portions as to render the entire Report exempt from disclosure
Implicitly conceding that information from the criminal investigation must be disclosed, petitioners argue that information in the Report gleaned from the CID and administrative investigations is inextricably intertwined because the PPD relied heavily on the CID investigation to conduct its administrative review, and OIR had access to all the PPD‘s investigative materials. Relying on the decisions in Berkeley Police Assn. v. City of Berkeley (2008) 167 Cal.App.4th 385 (Berkeley) and Davis v. City of San Diego (2003) 106 Cal.App.4th 893 (Davis), petitioners argue that derivative information from personnel files became so intertwined with the CID investigation that none of the Report may be disclosed.
In Berkeley, supra, 167 Cal.App.4th 385, the court addressed the question of whether proceedings conducted by a police review commission, established in order to investigate citizens’ complaints but which do not impose
In Davis, supra, 106 Cal.App.4th 893, the court enjoined a city from releasing a report about a shooting prepared by a permanent citizens’ review board established to review citizen complaints, because the report was derived almost entirely from records relating to a complaint. The report, compiled from personnel records, was itself a personnel record. (Id. at p. 900.)
Here the trial court properly rejected petitioners’ factually unsupported contention that information regarding the administrative investigation is inextricably intertwined with the criminal investigation so as to render the entire Report exempt. Material from the criminal investigation was generated independently and in advance of the administrative investigation. Officers’ personnel records include only the type of information enumerated in
[REDACTED] Where, as here, nonexempt materials are not inextricably intertwined with exempt materials and are reasonably separable, segregation is required. (See
d. The PRA does not exempt any record that theoretically could be used in personnel decisions
[REDACTED] Seeking to expand the PRA‘s reach, petitioners invite us to find that in addition to records generated in connection with “advancement, appraisal, or discipline,”
[REDACTED] The California Supreme Court has made clear that personnel records are confined to the type of information enumerated in
5. PRA privilege has not been waived
a. The privilege was not waived when the officers placed personnel information in the public domain.
Interveners argue that petitioners cannot establish that they will suffer harm if the Report is publicly disclosed because the officers waived any right of confidentiality as to information in the public domain, information the officers themselves voluntarily released. Accordingly, to the extent redactions ordered by the trial court—even those which recite to or rely on the administrative investigation, and thus would otherwise be privileged—include information in the public domain, Interveners maintain the officers waived any exemption to disclosure under the PRA. We disagree.
[REDACTED] In connection with a summary judgment motion in Slaughter‘s federal action, the officers filed with the court excerpts from their own deposition transcripts, among others. Those transcripts contain testimony by the officers about their recollections of the McDade shooting, and their conduct, concerns and strategies. Transcripts of others’ depositions, such as PPD Chief Sanchez, reveal information about officer training and a prior OIR report regarding a 2009 officer involved shooting. The transcripts also reflect that the officers used statements they voluntarily gave in the course of the CID investigation to refresh their recollections at deposition, thereby waiving protection for those statements in that litigation. (
[REDACTED] But the officers’ public revelation of confidential information does not constitute waiver as to privileged information in the Report. (See Fagan v.
Absent an express waiver of the privilege with respect to the confidential personnel information found in the Report, the officers retain Pitchess protections as to that information, even if the information is the same as or similar to information available elsewhere in the public domain. (See Commission on Police Officer Standards, supra, 42 Cal.4th at p. 296, fn. 5 [“We do not suggest that the mere fact that officers’ names are available from other sources necessarily means that the information cannot be considered personal or private.“]; Department of Defense v. FLRA (1994) 510 U.S. 487, 500 [“An individual‘s [privacy] interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.“].)
The officers did not waive privilege as to information in the Report they placed in the public domain. The trial court correctly concluded that redaction was in order for those portions of the Report that contain advancement, appraisal, or discipline information, or were derived from the administrative record.
b. The privilege was not waived when the City gave the Report to petitioners
[REDACTED] Nor did waiver occur by virtue of the City‘s provision of the Report to petitioners. Generally speaking, once disclosed to a member of the public, a record becomes available for public inspection. (Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 656-657;
c. No waiver by public disclosure of redacted material on appeal
As noted above, petitioners publicly filed a Reply brief containing verbatim excerpts of the Report, i.e., significant portions of the very material they contend is confidential. The Slaughter parties insist that such disclosure constitutes “changed circumstances” which operate to waive any privilege that may arguably have attached to the disclosed material. We disagree.
[REDACTED] Just as petitioners’ public disclosure of their deposition testimony in Slaughter‘s federal action against them did not operate to waive their right of confidentiality as to protected personnel records, their disclosure in this proceeding of excerpts from the Report does not operate as a waiver of their right to confidentiality. As explained by the trial court, “[i]nformation obtained from a police officer‘s personnel record is protected.” (See Commission on Police Officer Standards, supra, 42 Cal.4th at p. 289.) In Commission on Police Officer Standards, the Supreme Court held that an officer could not waive the privilege as to such information without expressly doing so. No express waiver occurred here. To paraphrase Commission on Police Officer Standards, “the mere fact that [privileged personnel information is] available from other sources [does not] necessarily mean[] that the information cannot be considered personal or private.” (Id. at p. 296, fn. 5; see Department of Defense v. FLRA, supra, 510 U.S. at p. 500 [individual‘s privacy interest in controlling dissemination of information regarding personal matters “does not dissolve simply because that information may be available to the public in some form“].)16
6. The trial court applied the PRA exemption too broadly
[REDACTED] Our review of the Report reveals the trial court‘s redactions are overbroad. Information properly classified as personnel records must be redacted from the Report. The remainder, however, including analyses of the PPD‘s response to and handling of the investigation of the McDade shooting, and OIR‘s recommendations for institutional reform, must be disclosed publicly. “The fact that parts of a requested document fall within the terms of an exemption does not justify withholding the entire document.” (CBS, Inc. v. Block, supra, 42 Cal.3d at p. 653; see
Petitioners, of course, argue that not enough information was redacted from the Report. Interveners, who chose not to seek review under
[REDACTED] We conclude that the issue of the appropriate extent of redactions is encompassed within the scope of the challenged judgment. Because the Report has remained sealed throughout this litigation, Interveners have no way to ascertain that too much information was culled from the Report. Because the trial court articulated the correct legal standard, they may reasonably have concluded there was no basis upon which to seek review. Principles of equity and those outlined in
“It is also well established that[, independent of any statutory authority,] courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; see Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758 [“From their creation by article VI, section 1 of the California Constitution, California courts received broad inherent power ‘not confined by or dependent on statute,’ which includes the ‘inherent power to control litigation.’ “].) These principles apply equally on appeal or in a writ proceeding. Where, as here, an issue in the case was necessarily encompassed by the questions raised in the writ petition, “fully briefed in the trial court,” and is “an issue of law,” we may review that issue and grant affirmative relief to a party who did not file a writ petition, even where the trial court found in favor of the petitioner on that issue. (Securitas Security Services USA, Inc. v. Superior Court (2015) 234 Cal.App.4th 1109, 1125.)
The City maintains it would be prejudiced by a grant of relief beyond that sought by petitioners (i.e., fewer redactions from the Report), as it has not yet had an opportunity to brief the issue. This contention is meritless. The City has had (and has taken) the opportunity to address the propriety of redacting portions of the Report, both here and before the trial court. Indeed, it urges us to find that the trial court‘s redactions appropriately protect the officers. Further, the City has been on notice since before it filed its return that Interveners would urge this court to conclude that the Report was overredacted.
The question of whether the trial court erred regarding the extent of its redactions is a question of law, fully briefed and embraced within the challenged order. Petitioners opened the door to this issue by filing a writ petition challenging the scope of the court‘s redactions. They have invited this court to review the challenged order in its entirety and to scrutinize specific redactions made by the trial court. We conclude that the principles embraced by
Information not obtained from findings of an internal or administrative investigation of the officers, or the privileged personnel records of any officer, is not shielded from disclosure. The Pitchess statutes do not exempt “every record that might be considered for purposes of an officer‘s appraisal.” (Long Beach Police, supra, 59 Cal.4th at p. 72; accord, Commission on Police Officer Standards, supra, 42 Cal.4th at p. 293 [Pitchess statutes do not exempt information “merely because [it] is contained in a file that also includes the type of confidential information specified in”
[REDACTED] “Appraisal,” as that term is employed in the Pitchess statutes, does not encompass review of an agency‘s practices and procedures. “The people have the right of access to information concerning the conduct of the people‘s business” (
Appendix A to this decision, filed under seal, contains a nonexhaustive list of material in the Report erroneously redacted by the trial court. On remand, the trial court, after revisiting the Report and bearing the principles articulated in this opinion in mind, may conclude that additional information must also publically be released. Accordingly, we will deny the petition and remand the matter to the superior court with directions to conduct the additional proceedings it deems appropriate and issue a new or modified
DISPOSITION
The petition is denied. The matter is remanded to the trial court to conduct additional proceedings to reconsider which portions of the Office of Independent Review Group‘s August 2014 report of the City of Pasadena concerning the officer involved shooting of Kendrec McDade contain confidential personnel records and order additional material released, including appendix A hereto, and to issue a new or modified judgment in conformance with this opinion. The order to show cause, having served its purpose, is discharged. The parties are to bear their own costs.
Rothschild, P. J., and Chaney, J., concurred.