Privacy Pitfalls in Public Safety Friday, May 6, 2016 General Session; 9:00 – 10:15 A.M

Privacy Pitfalls in Public Safety Friday, May 6, 2016 General Session; 9:00 – 10:15 a.m.

Meredith Packer Garey, Kronick Moskovitz Tiedemann & Girard Kristianne T. Seargeant, Kronick Moskovitz Tiedemann & Girard

DISCLAIMER: These materials are not offered as or intended to be legal advice. Readers should seek the advice of an attorney when confronted with legal issues. Attorneys should perform an independent evaluation of the issues raised in these materials.

This paper, or parts thereof, may not be reproduced in any form without express written permission from the League of California Cities®. For further information, contact the League of California Cities® at 1400 K Street, 4th Floor, Sacramento, CA 95814. Telephone: (916) 658-8200.

League of California Cities® 2016 Spring Conference Marriott, Newport Beach

Notes:______League of California Cities® 2016 Spring Conference Marriott, Newport Beach

Privacy Pitfalls in Public Safety

Presented By

Kristianne T. Seargeant Meredith Packer Garey KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capital Mall, 27th Floor Sacramento, CA 95814 Tel.: (916) 321-4500 Fax: (916) 321-4555 Email: [email protected] [email protected]

INTRODUCTION

Public safety employment is rife with potential privacy issues and legal pitfalls that can befall even the most conscientious employer. This white paper and presentation will discuss a variety of new and changing issues in employee privacy and several new statutes and cases directly affecting public employers.

II.

CONSIDERATIONS FOR THE USE OF BODY-WORN CAMERAS

The use of body-worn cameras in law enforcement is quickly rising to the forefront of issues for law enforcement agencies, and the cities and counties who employ peace officers. Numerous agencies and entities are running pilot programs and even instituting department-wide use of body-worn cameras. The California Highway Patrol will be testing body-worn cameras in four areas of California throughout 2016.

The use of body-worn cameras is now governed by California Penal Code section 832.18, which went into effect on January 1, 2016. This statute governs law enforcement agencies who seek to implement body-worn camera programs. Section 832.18 establishes requirements for agency policies and procedures, creates best practices for body-worn camera usage, and governs the establishment of policies and procedures related to body-worn cameras. Specifically, Penal Code section 832.18 states that when law enforcement agencies, departments or entities are establishing their policies and procedures for the use, implementation and operation of body- worn cameras, they must consider the following "best practices" regarding the downloading and storage of body-worn camera data.

A. Requirements for Policies and Procedures Regarding Download and Retention of Body-Worn Camera Data

When developing a body-worn camera program, the law enforcement agency must develop a set of best practices, procedures, and rules for use of body-worn cameras. Per section 832.18, as part of these procedures, the law enforcement agency must designate the person responsible for downloading the recorded data from the body-worn camera. If the storage system does not automatically download data or have the capacity to automatically download data, the officer's supervisor should take immediate physical custody of the camera and should be responsible for downloading the data in the case of an incident involving use of force, an officer-involved shooting, and/or any other serious incident. The agency must also establish, in their policies and procedures, rules as to when data should be downloaded to ensure data is entered into the system maintained by the law enforcement entity. The policies and procedures should also establish best practices for maintaining cameras and for tagging and categorizing stored data.

Section 832.18 also requires that a law enforcement agency include best practices and policies and procedures regarding retention of body-worn camera data in its policies and procedures. When developing a retention schedule and policy for body-worn camera data, the agency or entity should work with its individual legal counsel to ensure all policies and practices comply with all laws, both state and federal, and preserve evidentiary chain of custody.

Specifically, the policies and procedures attendant to the use of body-worn cameras must state the amount of time the recorded data is to be stored. Records and/or logs of body-worn camera data should be retained permanently. However, non-evidentiary data that does not relate to any incident, criminal prosecution, or complaint should be retained for a minimum of sixty days, at which time it can be destroyed, recycled or erased. The sixty days is not a maximum retention period, and data may be preserved for a longer period of time to have it available to preserve transparency. However, evidentiary data or data relating to a use of force, arrest, detention, complaint or officer-involved shooting must be retained for longer periods.

Specifically, the body-warn camera video data must be kept for at least two years if it pertains to any of the following circumstances:

1. The recorded data involves the use of force by an officer or an officer-involved shooting.

2. The recorded data involves an incident leading to the arrest or detention of an individual.

3. The recorded data is relevant to a formal or informal complaint against a law enforcement officer or a law enforcement agency.

Additionally, if the data pertains to or may be relevant to a criminal prosecution, the law enforcement agency must retain that recording in the same manner as is required by law for evidence related to a criminal prosecution.

For the purposes of retention, and all other purposes in this section, "evidentiary data" is defined in section 832.18 as "data of an incident or encounter that could prove useful for investigative purposes, including, but not limited to, a crime, an arrest or citation, a search, a use of force incident, or a confrontational encounter with a member of the public." "Non-evidentiary data" is defined as "data that does not necessarily have value to aid in an investigation or prosecution, such as data of an incident or encounter than does not lead to an arrest or citation, or data of general activities the officer might perform while on duty."

B. Requirements for Policies Regarding Management and Storage of Body-Worn Camera Data

In regards to both long and short-term storage of body-worn camera data, the policies and procedures must state where the body-worn camera data will be stored, including, for example, an in-house server which is managed internally, or an online cloud database which is managed by a third party-vendor. If an agency is utilizing a third-party vendor to manage and store data, the agency must take steps and draft policies and procedures to protect the security and integrity of the data. This includes using an experienced and reputable third party vendor, entering into

contracts governing the vendor relationship that protect the agency's data, using a system that including technical assistance capabilities, and consulting with internal legal counsel to ensure the method of storage meets legal and chain of custody requirements. The third party system must also have a built-in audit trail to prevent data tampering and unauthorized access and have a reliable method for automatically backing up data stores.

C. Requirements for Policies and Procedures Regarding Security of Body-Worn Camera Data and Preventing Tampering, Copying, or Deletion of Body-Worn Camera Data

Per section 832.18, the law enforcement agency's policies and procedures regarding body-worn cameras should contain specific measures to prevent data tampering, deleting, and copying. The policies and procedures should categorize and tag body-worn camera video at the time the data is downloaded according to the type of event and/or incident captured. These measures should prohibit the unauthorized use, duplication and distribution of body-worn camera data.

Additionally, in regards to preservation, California Penal Code section 141 was amended on January 1, 2016, to include prohibitions against "knowingly, willfully, intentionally, and/or wrongfully" altering or modifying a digital image or recording "with the specific intent that the action will result in a person being charged with a crime or with specific intent that the physical matter will be wrongfully produced as genuine or true upon a trial, proceeding, or inquiry." A person who does so is guilty of a misdemeanor. A peace officer guilty of the same action or of concealing or destroying a digital image or fraudulently representing the image to a trial, proceeding or inquiry, is guilty of a felony punishable by 2, 3, or 5 years in prison.

D. Policies Governing Ownership and Use of Body-Worn Camera Data

In regards to property rights, all recorded data from body-worn cameras is the property of the respective law enforcement agency. It must be stated in the policies and procedures that the data shall not be accessed or released for any unauthorized purposes. The procedures must also prohibit agency personnel from accessing recorded data for personal use and from uploading recorded data onto public and social media sites. However, section 832.18 specifically states that, "nothing in this section shall be interpreted to limit the public's right to access recorded data under the California Public Records Act." The same rules regarding the release of other data and records under the California Public Records Act would apply to data collected by body-worn cameras. The policies and procedures should include sanctions for prohibited use.

III.

SOCIAL MEDIA

The vastly increased use of social media in both public and private communication has increased the need for employers, especially public safety employers, to be cognizant of the varied employment issues raised by social media. The use of social media particularly raises concerns regarding employee privacy. The following discusses a few of the most recent decisions and issues affecting public safety employers.

A. Considerations for Managing Employee Use of Social Media and Electronics Communications On and Off Duty

Employers are often concerned about the degree to which they can regulate the content their employees’ posts on different social media sites, both on and off duty, including what employees post about management, workplace conditions and private details of their employment.

Employers, including public safety employers, are cautioned that the National Labor Relations Board ("NLRB") has issued decisions strictly protecting employees' rights to protected communications under sections 7 and 8 of the National Labor Relations Act. These sections protect employee communications about both the terms and conditions of employment and protected employee organization and self-organization. This applies to California employers as well because the Public Employment Relations Board ("PERB") follows the direction of the NLRB on these issues. Additionally, under California law, specifically California Labor Code section 232.5, no employer may require that an employee "refrain from disclosing information about the employer's working conditions." Under both NLRB and PERB precedent, employees have a lot of latitude to comment regarding the terms and conditions of their employment on social media and cannot be disciplined for so doing.

For example, in Los Angeles Community College District (2014) PERB Decision 2404, PERB held that blanket restrictions on communications can interfere with employees’ protected communication rights. This is consistent with NLRB precedent that blanket restrictions on communications can interfere with employees' right to engage in concerted activity. This case also held that blanket instructions to employees to maintain confidentiality during a workplace investigation could interfere with the employees' ability to discuss concerted activities and the terms and conditions of their employment. Specifically, in Los Angeles Community College District, a professor was disciplined after he handed out materials criticizing the District because the professor disagreed with the District's decision to reduce his work hours. The District stated the professor was "directed not to contact any members of the faculty, staff, or students." PERB held the directive interfered with his protected rights as the directive was overbroad and contained no qualifiers on scope. Also, the District lacked a business justification for the directive. Public safety employers should take this to heart as PERB has stated that any overbroad bar on communication will be unenforceable if it interferes with the employees' protected rights.

Another recent example is the NLRB's decision in Pier Sixty LLC, (2015) 362 NLRB 59 in which NLRB felt that very offensive language in a social media post was not "so egregious" as to exceed the protection of the National Labor Relations Act. In Pier Sixty, the employer operated a catering service at which a number of employees expressed interest in forming a union. At a catering event prior to the union election, the named claimant was working when a manager instructed him to "turn your head that way and stop chitchatting." After a second reprimand, the claimant posted the following on Facebook, "Bob is such a NASTY MOTHER F***** don't know how to talk to people !!!!! F*** his mother and his entire f***** family!!!! What a LOSER!!!!! Votes YES for the UNION!!." which was visible to his Facebook friends, including several coworkers. The claimant was terminated. The NLRB reviewed the case and

determined that the Perez's Facebook comments constituted protected, concerted activity and union activity. The NLRB cited many employees using profane language in other cases.

The NLRB has also invalidated many employment policies dealing with communication and privacy on the grounds that they are overbroad and chill protected speech. For example, the NLRB determined that a provision prohibiting employees from electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation,” violated the NLRA. (Costco Wholesale Corp., 358 N.L.R.B. No. 106 (Sept. 7, 2012).) Additionally, the NLRB held that rule mandating "courtesy" in communications violated the NLRA in Knauz BMW, 358 N.L.R.B. No. 164 (Sept. 28, 2012).

However, the NLRB recently upheld the following policy in Landry's Inc. (362 N.L.R.B. slip op. 69 (Apr. 16, 2015) which stated,

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company's business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission. You are personally responsible for the content you publish on blogs, wikis, or any other form of social media. Be mindful that what you publish will be public for a long time. Be also mindful that if the Company receives a complaint from an employee about information you have posted about that employee, the Company may need to investigate that complaint to insure that there has been no violation of the harassment policy or other Company policy. In the event there is such a complaint, you will be expected to cooperate in any investigation of that complaint, including providing access to the posts at issue.

While this is a good example of a policy approved by the NLRB, it also serves as an example of inconsistent enforcement by the NLRB. Agencies are encouraged to vet policies with legal counsel before adopting.

B. Privacy Considerations Related to Access and Monitoring

Social media and electronic communications in the workplace also raise questions as to what extent the employer can access social media and other communications sent by employees and to what degree the communications may be monitored. The question has also arisen whether employees must be given access to employer electronic and internet resources for protected communication. In 2015, the National Labor Relations Board decided Purple Communications, Inc., etc. which held that "employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email system." This is most likely applicable to other employer-owned or employer-operated communication systems. This also only applies to statutorily protected communications, which are communications regarding self-organization and employee organization and communications regarding the terms and conditions of employment. This also only applies to non-working time. In Purple Communications, the NLRB still permitted

monitoring of employer-owned and/or employer-operated communication systems "as long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring on protected conduct or union activities." Monitoring of electronic communications must be done consistently and via a policy or written procedures.

The next current issue is whether communications on privately owned employee devices can be accessed by the public safety employer. All employers can access communications on employer-owned devices as long as policies are correctly and legally drafted with the assistance of legal counsel. However, a larger question remains as to what degree employers can access data on devices or accounts that are either entirely or partially employee owned. Public safety employers' ability to access electronic data on employee-owned or partially employee-owned devices will be significant affected by the passage of the California Electronic Communications Privacy Act. On January 1, 2016, the California Electronic Communications Privacy Act ("CalECPA") took effect which prevents a government entity from compelling disclosure of electronic data without a warrant and covers both personal devices and online services that store personal data. In order to waive this protection, the authorized user must give consent to the government agency seeking the information.

This could affect law enforcement agencies, which often have policies that apply to personal devices. The policies often permit administrative searches of officers' department- issued and personally owned devices. Now, without consent, the agency would need a warrant for this strictly personal information or information on personally owned devices. Per section 1546.1, as added by CalECPA, a government entity may access electronic device information under a specific set of circumstances. "Electronic device" is defined as any device that stores, generates, or transmits information in electronic form and "electronic device information" is any information stored on or generated through the operation of an electronic device." The circumstances in which the government entity may access an electronic device the government entity does not own is as follows:

1. Pursuant to a warrant. 2. Pursuant to a wiretap order. 3. With the specific consent of the authorized possessor of the device. 4. With the specific consent of the owner of the device, only when the device has been reported as lost or stolen. 5. If the government entity in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information. 6. If the government entity, in good faith, believes the device to be lost, stolen or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify or contact the owner or authorized possessor of the device.

An "authorized possessor" means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.

It is unclear to what degree this law will be applied against public safety agencies as employers but there is no current exclusion or limit at this point.

C. Review Social Media Prior to Hiring Or During Employment

Under Labor Code section 980, employers cannot require employees or applicants to disclose a personal social media password or username, access personal social media in the presence of the employer or divulge any personal social media. However, Labor Code section 980 does not apply when the social media information is relevant to an investigation of employee misconduct or violation of law or when the employer needs the information for the purpose of accessing an employer-issued device. There is some dispute as to whether this provision applies to law enforcement. A law enforcement exception was eliminated in early versions of the bill. Labor Code section 980 was introduced in 2012 and amended in 2013. In 2013, an additional bill, AB 25, was introduced that would have, among other things, clarified specifically that section 980 applied to public employers, but that law enforcement agencies were exempt from section 980. AB 25 also would have added section 980.1, a separate statute which would have given law enforcement agencies special abilities to screen the social media of potential applicants under certain circumstance and with a valid written policy. However, AB 25 never passed and no equivalent or similar legislation has been enacted, so it is likely that section 980 would be applied to public employers, including law enforcement agencies.

IV.

UPDATES ON BRADY AND PITCHESS

A. Bifurcated Proceedings Due to January 1, 2014 Enactment of Government Code Section 3305.5:

Under the Peace Officers Procedural Bill of Rights ("POBAR"), an additional protection was added in 2014 prohibiting discipline solely on the basis of a peace office being placed on a "Brady" list, as well as prohibiting the introduction of such evidence at a hearing until after the underlying misconduct is upheld by the hearing officer. Government Code section 3305.5 provides,

(a) A punitive action, or denial of promotion on grounds other than merit, shall not be undertaken by any public agency against any public safety officer solely because that officer’s name has been placed on a Brady list, or that the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83.

(b) This section shall not prohibit a public agency from taking punitive action, denying promotion on grounds other than merit, or taking other personnel action against a public safety officer based on the underlying acts or omissions for which that officer’s name was placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, if the actions taken by the public agency otherwise conform to this chapter and to the rules and

procedures adopted by the local agency.

(c) Evidence that a public safety officer’s name has been placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, shall not be introduced for any purpose in any administrative appeal of a punitive action, except as provided in subdivision (d).

(d) Evidence that a public safety officer’s name was placed on a Brady list may only be introduced if, during the administrative appeal of a punitive action against an officer, the underlying act or omission for which that officer’s name was placed on a Brady list is proven and the officer is found to be subject to some form of punitive action. If the hearing officer or other administrative appeal tribunal finds or determines that a public safety officer has committed the underlying acts or omissions that will result in a punitive action, denial of a promotion on grounds other than merit, or any other adverse personnel action, and evidence exists that a public safety officer’s name has been placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, then the evidence shall be introduced for the sole purpose of determining the type or level of punitive action to be imposed.

(e) For purposes of this section, “Brady list” means any system, index, list, or other record containing the names of peace officers whose personnel files are likely to contain evidence of dishonesty or bias, which is maintained by a prosecutorial agency or office in accordance with the holding in Brady v. Maryland (1963) 373 U.S. 83.

This additional POBAR protection prohibits the discipline of a law enforcement officer on the sole basis the officer had been placed on a Brady list. What appears to be most problematic, however, is the language in subdivisions (c) and (d) of the new statute. Instead of presenting a streamlined case at an employee discipline hearing that includes both evidence of underlying wrongdoing and any subsequent placement on the Brady list as a result of the wrongdoing, employers are now compelled to bifurcate the hearings if they desire to introduce evidence of placement on a Brady list. Only after there is a finding of wrongdoing by the hearing officer – which generally occurs months after the close of evidence and submissions of post-hearing briefs – can the employer then open the hearing again and introduce the Brady list evidence in support of the proposed discipline. This two-step process can add months to an already lengthy process, costing the employers more legal fees, arbitrator costs and increased potential back-pay awards given the extension of time.

If possible, theoretically, the parties could stipulate to the introduction of evidence that the officer has been placed on a Brady list. The stipulation could be provided to the hearing officer under seal, only to be opened by the hearing officer if the hearing officer upheld the underlying misconduct for purposes of evaluating the level of discipline imposed. However, as logical as that evidentiary compromise may be, it is dependent on cooperation from the officer's counsel and depending on the agency's relationship with the union and/or the particular officer in question, a stipulation may not be plausible. When such a stipulation is not possibility, the agency should analyze the strength of its case absent any reliance on the Brady list evidence and

make a decision on whether the case for termination is strong enough without the evidence because entering it on the record could delay the proceedings to such a degree, too much operational disruptions would occur.

B. People v. Superior Court (Johnson):

On July 6, 2015, the California Supreme Court overturned the case of People v. Superior Court (Johnson). In Johnson, two officers within the San Francisco Police Department ("SFPD") were identified as potential material witnesses in a criminal prosecution. SFPD informed the district attorney that these officers' personnel files may contain exculpatory information. Based on that information, the district attorney filed a Pitchess motion to review the files. The district attorney attached a declaration to its motion that alluded to the information provided by the SFPD.

In its Pitchess motion, the district attorney requested that the trial judge conduct an in camera review of the officers' personnel files. The trial judge refused, holding the district attorney was allowed access to the personnel files under Penal Code section 832.7(a) and, therefore, there was no need for the motion. The Court of Appeal affirmed that ruling.

The Supreme Court reversed, affirming the previously held position that a prosecutor has no greater access to law enforcement personnel files than others. The Court reasoned that the exemption language contained in Penal Code section 832.7(a) pertained only to investigations of an officer’s conduct and checking for Brady material is not an "investigation" for these purposes. The Court noted that a police officer does not become the target of an investigation merely by being a witness in a criminal case. The Court noted that treating officers as the subject of an investigation whenever they become a material witness would not protect their privacy interests “to the fullest extent possible.” The Court concluded that prosecutors, as well as defendants, must comply with the Pitchess procedures if they seek information from confidential police personnel records. The Court held that “the prosecution has no Brady obligation to do what the defense can do just as well for itself.” The Court further stated, “the prosecutor had no constitutional duty to conduct defendant’s investigation for him.” Once a defendant has general knowledge of the potential for exculpatory material, the defendant can access the information through a Pitchess motion.

The Court noted the benefits of the defendant employing the Pitchess procedure rather than the prosecutor. First, the credibility of a police officer witness might not be an issue in the case. In such an instance, there may be no need to bring a Pitchess motion. Second, the defense is in a better position to know its own potential defenses, to anticipate what information might be helpful, and to be better able to articulate what personnel information and it is seeking and why.

The Court concluded, “under these circumstances, permitting defendants to seek Pitchess discovery fully protects their due process right under Brady, to obtain discovery of potentially exculpatory information located in confidential personnel records. The prosecution need not do anything in these circumstances beyond providing to the defense any information it has regarding what the records might contain – in this case informing the defense of what the police department had informed it.”

C. Attorney General Opinion Letter, No. 12-401:

On October 13, 2015, California Attorney General Opinion Letter, No. 12-401, relevant to a law enforcement agency's dual responsibilities to comply with Brady v. Maryland and California's Pitchess statutes in the wake of the California Supreme Court's recent decision in People v. Superior Court (Johnson). The Attorney General approved, over the objections of the California Highway Patrol, a Brady procedure that is similar to procedures adopted by multiple prosecutors.

Prior to the announcement of the Johnson, supra, decision, Ventura County District Attorney Gregory Totten requested the Attorney General's opinion on two questions:

1. Does Penal Code section 832.7, subdivision (a), authorize a district attorney, for the purpose of complying with the United States Supreme Court's ruling in Brady v. Maryland, to directly review the personnel files of peace officers who will or are expected to be prosecution witnesses?

2. To facilitate compliance with Brady v. Maryland, may the California Highway Patrol lawfully release to the district attorney's office the names of officers against whom findings of dishonesty, moral turpitude, or bias have been sustained and the dates of the earliest such conduct.

The Attorney General responded that the first question was directly answered by the Johnson decision: Section 827, subdivision (a) does not authorize a district attorney to directly review such files without complying with Pitchess.

Regarding the second question, the Attorney General opined the CHP may lawfully release to the district attorney's office a list of the names of officers against whom the aforementioned types of findings had been sustained. The Attorney General noted that while the Johnson opinion did not squarely decide the issue of whether the practice of providing such a list was permissible, it "plainly described, and approved of, a policy substantially similar to the one we consider here." The opinion further states: "We believe the Supreme Court's approval of the policy was logically necessary to its decision, and we therefore regard the Johnson decision as good authority for the proposition that such a policy is legally valid."

The Attorney General Opinion is advisory but persuasive. It is likely that this Opinion will encourage even more prosecutors to revise their Brady policies to request law enforcement agencies to affirmatively provide prosecutors with the names of specific peace officers that have potential Brady material in their personnel records without having to disclose the substance.

D. Riverside County Sheriff’s Department v. Stiglitz:

On December 1, 2014, the California Supreme Court held that a hearing officer in an administrative appeal hearing has the authority to rule on a Pitchess motion for discovery of peace officer personnel records. The Court largely relied on the phrasing of California Evidence Code section 1043 which expressly allows Pitchess motions to be filed with an appropriate “administrative body.”

A former correctional deputy was terminated for falsifying time records. The deputy appealed her termination as part of the process dictated in the parties' memorandum of understanding. During the appeal hearing, the deputy filed a Pitchess motion with the hearing officer requesting discovery of disciplinary records of other sworn, unnamed officers. The hearing officer denied the motion citing to the fact the deputy had not provided any specific names. In a renewed motion, the deputy identified the specific employees by name and sought only redacted records. Accordingly, the hearing officer found good cause and ordered production of the files. The County filed a petition for writ of administrative mandate seeking to compel the hearing officer to vacate his decision.

Shortly before the trial court was set to rule on the writ petition, a published decision was issued holding that discovery of confidential peace officer personnel records, pursuant to Pitchess, is not available in a DMV administrative license suspension hearing. Relying on the newly published decision, the County argued that only a judicial officer may rule on a Pitchess motion. The trial court agreed with the County. The deputy appealed. The appellate court reversed and ruled that a hearing officer in an administrative appeal has the authority to rule on a Pitchess motion. The Supreme Court affirmed.

The Supreme Court explained that a Pitchess motion consists of a two-step process. First, Evidence Code section 1043 requires the moving party to establish good cause for discovery of the requested records, which are confidential under Penal Code section 832.7. Next, if good cause is established, Evidence Code section 1045 requires an in camera review to determine the relevance of the requested documents. Section 1045 repeatedly refers to “the court” as the entity that must conduct the in camera review, determine relevance, and issue appropriate protective orders.

The Supreme Court stressed that the inclusion of the term “administrative body” in Section 1043 reflects the Legislature’s intent that administrative hearing officers are authorized to rule on Pitchess motions. The Court explained that the repeated use of the term “court” in Section 1045, cannot nullify section 1043. The Court noted, “[i]f the Legislature intended that only the superior court could rule on Pitchess motions, it could easily have said so.” The Court took the position that if an administrative hearing officer could not rule on a Pitchess motion then section 1043 authorizes an “idle act.” The Court ruled that by permitting filing with an appropriate administrative body in Evidence Code section 1043, the Legislature intended to allow administrative hearing officers to decide such motions without court intervention.

V. SETTLEMENT AGREEMENTS/INTERNAL AFFAIRS DOCUMENTATION

In evaluating terms and benefits of settlement agreements, it is important to be aware of other statutory constructs that may interfere with the expectations of the parties when discussing settlement.

A. Public Records Act ("PRA"):

For many law enforcement related public record requests, the PRA's exemptions for “personnel … or similar files,” “investigatory files” or “records of … investigations,” and “records, the disclosure of which is exempted or prohibited pursuant to federal or state law” are the most relevant, and the exemptions most readily employed to protect confidential law enforcement information. (Gov. C., § 6254(c), (f) and (k]).) Penal Code section 832.7 designates the contents of peace officer “personnel records,” and any information “obtained from these records” as confidential. Generally, this type of information can only be obtained through a Pitchess motion.

What constitutes a confidential “personnel record” is not well defined. Penal Code section 832.8 defines “personnel records” as “any file maintained under” a peace officer’s name “by his or her employing agency and containing records relating to … personal data … medical history … employee benefits, employee advancement, appraisal, or discipline, complaints or investigation of complaints,” and other information the disclosure of which would constitute an invasion of personal privacy.

The “personnel files” exemption protects from disclosure only those records or information found within a personnel file that is “generated in furtherance” of reviewing officer conduct. (Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Cal.4th 278.) Also exempted is the “investigatory” or “investigation files.” (Gov. C., § 6254(f).) This exemption covers “[r]ecords of … investigations conducted by … any state or local police agency, or any investigatory or security files compiled by any … state or local police agency for … law enforcement … purposes,” among other categories. This exemption has a broad application in the peace officer context.

The records of investigation exempted under section 6254(f) encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation.

The court’s broad definition of what falls within the “investigation files” exemption is illuminating with respect to settlement agreements and what is susceptible to disclosure and what is not. The court's consistent refusal to exclude “routine” or “everyday police activity” from the exemption further broadens the PRA's reach as does the fact that the exemption extends indefinitely, even after an investigation is closed. (Rivero v. Superior Court (1997) 54 Cal.App.4th 1048; Williams v. Superior Court (1993) 5 Cal.4th 337.)

Generally, public records need to be maintained for at least two years. Documents related to citizen complaints against law enforcement personnel need to be maintained for at least five years. These maintenance timeframes must be evaluated when discussing settlement terms and any request to remove documents from a file or to "seal" negative documentation. Often times, there is a request to "seal" or "expunge" adverse documents contained in the officer's personnel file. A threshold issue in addressing such a request is what does the respective agency's own investigation and retention policies state with respect to maintenance of records.

Also relevant is at what stage is the investigation? During some situations, the investigation is still ongoing and any documentation is in draft form when there is a discussion of resignation and/or retirement from the agency. If allowable under your policy and the investigation does not arise out of a citizen initiated complaint, there is some discretion afforded the agency with respect to whether or not it wants to conclude and finalize the investigation or abandon any investigation and not maintain draft investigatory documents related to the abandoned investigation. In circumstances in which the investigation has been completed, there is much less discretion. However, language can be crafted that allows the documentation to be "sealed" with exceptions, such as background checks for other law enforcement employment or by court order or other legal mandate to provide. Any decisions with respect to maintenance of investigative files should be done in conformity with internal policies and in consultation with legal counsel.