LONG BEACH POLICE OFFICERS ASSOCIATION v. CITY OF LONG BEACH(LOS ANGELES TIMES COMMUNICATIONS) (To be called and continued to the March 2014 calendar.)

Appellant, City of Long Beach, Petition for Review

Cal.March 16, 2012

neersSupreme Court Case By, gn "U9 © 5 OF IN THE SUPREME COURT OF THE STATE OF CALIFORNIA LONG BEACH POLICE OFFICERS ASSOCIATION AND DOE OFFICERS1-150, Plaintiffs and Appellants, VS. CITY OF LONG BEACH,a municipal corporation, LONG BEACH POLICE DEPARTMENT, JAMES McDONNELL,Chiefof Police, Defendants and Appellants. LOS ANGELES TIMES COMMUNICATIONSLLC., Real Party in Interest and Respondent. Court of Appeal of the State of California Second Appellate District, Division Three Case No. B231245 Superior Court of the County of Los Angeles sand 4 § ates CaseNo.NC055491 0 se Hon.Patrick T. Madden, Judge, Dept. B ceougya YS OeSe ee 7 PETITION FOR REVIEW ROBERT E. SHANNON,City Attorney (SBN 43691) CHRISTINA L. CHECEL, (SBN 197924) OFFICE OF THE LONG BEACH CITY ATTORNEY 333 West Ocean Boulevard, 11th Floor, Long Beach, California 90802 ‘ (562) 570-2200; (562) 436-1579 Fax Attorneys for Defendants & Appellant, CITY OF LONG BEACH Supreme Court Case No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA LONG BEACH POLICE OFFICERS ASSOCIATION AND DOE OFFICERS1-150, Plaintiffs and Appellants, VS. CITY OF LONG BEACH,a municipal corporation, LONG BEACH POLICE DEPARTMENT, JAMES McDONNELL,Chiefof Police, Defendants and Appellants. LOS ANGELES TIMES COMMUNICATIONSLLC., Real Party in Interest and Respondent. Court of Appeal of the State of California Second Appellate District, Division Three Case No. B231245 Superior Court of the County of Los Angeles Case No. NC055491 Hon.Patrick T. Madden, Judge, Dept. B PETITION FOR REVIEW ROBERT E. SHANNON,City Attorney (SBN 43691) CHRISTINA L. CHECEL, (SBN 197924) OFFICE OF THE LONG BEACH CITY ATTORNEY 333 West Ocean Boulevard, 11th Floor, Long Beach, California 90802 (562) 570-2200; (562) 436-1579 Fax Attorneys for Defendants & Appellant, CITY OF LONG BEACH If. Il. IV. VI. TABLE OF CONTENTS Page PETITION FOR REVIEW... cccccscsccsssceseesessesaseaessesessesesesssseensereeanes 1 ISSUES PRESENTED...ececciccceecseessessesseseeseseessecssesseeeecesseccsnsaasaees 1 NECESSITY OF REVIEW...ccccesccssssssessssessesecsssssesseessessessessesseees 2 A. Secure Uniformity of Decision ........ccccccscsececesecesessseesessessesseeues 2 B. Settle Important Questions Of LAW ....c.ccccceeesecsecsseesseseessscnssaseees 4 APPLICABLE STATUTORYLAW....ccecccccccsccsssccesesteessesneesseeees 5 A. The California Public Records Act (CPRA).......cccessccscsesessseessees 5 B. The Pitchess Statutes... .ccccccccccssssecssecsscssesseecseeeseseceeseeseseusaneens 6 C. The California Constitution .0......c.cccccccscsccssceseesesssessntssecssssueeens 6 STATEMENTOF THE CASEuo... ceccccsccsesscssesseseessescsesesensessesentenseaes 7 A. The Zerby shooting and subsequent request under the CPRA .....7 B. Internet postings of police officer’s home addresses, phone numbers, and namesoftheir family members has become increasingly common andofficers are being threatened at TOME ose cece ees esteeseeesecseeacecesesseecsessesesesssssessesuseseseessesesesenessaeeesess 9 DISCUSSIONooo.eeeceecsteesessesseesseeseseeseessessesseeesseerecsessssseseccuees 10 A. The decision in Long Beach Police Officer Association v. City of Long Beach is inconsistent with this Court’s prior rulings in Copley and POSTv..iecccccccssceecsecssessessesseessesesssseseecrecsstcanesesveasiees 11 B. This Court confirmed the Legislature’s policy decision that the need to maintain confidentiality of police officer personnel records outweighsthe public’s interest in disclosure .........00..... 15 C. A police officer’s name whenlinkedto an internal investigation should be exempt from disclosure under Government Code SECON O254(f).cccecsccessssesesscescessescescesscesssecseceeseesessseeessesseasensas 17 VIL. CONCLUSION ooeeeseseesecseeeseeseesetesesesecseseeesaessaeesesseesseseessesans 20 CERTIFICATE OF COMPLIANCE. .....cccccccssssssssscseeseseeeecsesseeseesessesereesess 21 il TABLE OF AUTHORITIES Cases Page Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal. 4th 278 ooo ccecccsecssessessesseecssessseseseaaees 1,2, 4, 12-14 Copley Press, Inc. v. Superior Court (2006) 39 Cal. 4th 1272 0.cscssesssseseesteesesseeeseeeee 1-4, 11, 12, 16 Haynie v. Superior Court (2001) 26 Cal. 4th 1061 ooccccccseesecseesseesseesesseeesesseeseeeesereeeens 19 Houge v. Ford (1955) 44 Cal.2d 706.0... ceccecscessessessessecssecsesseseessseaeecsseereseseeseseseas 15 Inre Jesusa (2004) 32 Cal.4th 588 oo... ccccccscssccssesssseesecssessecesessesseessecsssseeserenens 15 Long Beach Police Officers Association v. City ofLong Beach (2012) 203 Cal. App. 4° 292 voovceccccsssesssecssessesesseseeees 1,2, 4, 13, 14 New York Times Co. v. Superior Court (1997) 52 Cal. App. 4th 97ccceceseeccsscseeesseessesereeereeseees 3,11, 12 Pitchess v. Superior Court (1974) 11 Cal. 3d 531 oecccccscecsetsesseessesecsseseessescssssseseesseeeates 6, 8 Statutes California Constitution, Article I, § 3(b)(1) and (3)...ceeeeeeeseeesseeees 7,11 California Government Code § 6250.......c.ccccccsssccsssessccesseeseessesessessesessstsaeens 5 California Government Code § 6254.........ccccccccccccsssesssecesssessssevsssessseeeeatenes 6 California Government Code § 6254(C) vo. ..ccccccssccscssscesscsessssesssessscessesasens 8 California Government Code § 6254(f).......cccscscccesecsssessnseeees 1, 6, 8, 17-19 California Government Code § 6254(k) ......ccccccccccscecscesscsssscsssersessseeeesees 6, 8 California Government Code § 6255(a) ......cccccccccccsccssescsssssssseceseceeneseenrensens 8 ili California Penal Code § 832.7 ........ccccccessssscsessecesssnsecesnseeessccueeeeesseaees 3, 6, 8 California Penal Code§ 832.8 ........cccccccsssssstsssecesssssecesstssseseessnterees 3, 6, 8, 13 Miscellaneous Calif. Rules of Court, Rule 8.500, Subd. (b)(1).....ee eeeeeceeseeeeeeeeeteeeeetees 2 91 Ops.CalAtty.Gen. 11, 14.ceeesse seesersesseeseeseeseeseeessaeeseseeeee 15 iv I PETITION FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATEJUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: The City of Long Beach, Defendant and Appellant (City), respectfully petitions this Honorable Court for review of the opinion in the above-captioned matter by the Court of Appeal for the Second Appellate District, Division Two, entitled Long Beach Police Officers Associationv. City ofLong Beach (2012) 203 Cal. App. 4" 292 (hereinafter LBPOA v. City ofLong Beach). The decision wascertified for publication and filed on February 7, 2012. There were no requests for rehearing. A true and correct copy of the Court of Appeal’s opinion is attached hereto as Exhibit “A”. The Petition for Review is timely. Il. ISSUES PRESENTED 1, Whether the Court of Appeal’s decision is consistent with this Court’s decisions in Copley Press, Inc. v. Superior Court (2006) 39 Cal. 4th 1272 and Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal. 4th 278. 2. Whether California Government Code Section 6254(f) exempts from disclosure the nameof an officer who is under investigation for being involvedin an on duty shooting. 3. Whetherthe accessibility of personal information on-line and the real potential for targeting identified police officers who have been involved in critical incident such as a shooting warrants additional consideration in the context of protecting the personal security of those officers under the California Public Records Act. If, NECESSITY OF REVIEW The Supreme Court may grant review of a Court of Appeal decision “[w]hen necessary to secure uniformity of decision or to settle an important question of law.” (Calif. Rules ofCourt, Rule 8.500, Subd. (b)(1).) A. Secure Uniformity of Decision The Court of Appeal decision in LBPOA v. City ofLong Beachis inconsistent with this Court’s decisions in Copley Press, Inc. v. Superior Court (2006) 39 Cal. 4th 1272 (hereinafter Copley) and Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal. 4th 278) (hereinafter POST). In Copley, the press requested the namesofofficers involved in a disciplinary matter. This Court affirmed that the nameofa police officer, whenlinked to personnel information, is confidential and not subject to disclosure under the California Public Records Act (CPRA). The decision upheld the Legislature’s policy decision that the desirability of confidentiality in police personnel matters outweighsthe public’s interestin disclosure. Copley explicitly disapproved the holding in New York Times Co. v. Superior Court (1997) 52 Cal. App. 4th 97, where the Court of Appeal, Second District, Division Six held the names of officers who fired their weapons during an incident were not confidential under California Penal Code Section 832.7 and 832.8. In Copley this Court stated the appellate court’s unsupported assertion was incorrect and rejected Copley’s reliance on that decision. Despite this Court’s ruling in Copley, supra, courts, such as the Court of Appealin the instantcase,still rely on New York Times Co. in ordering the disclosure of police officer namesthat are linkedto critical incidents. Decisionsat the trial court level are inconsistent, with some courts relying on New York Times and ordering disclosure of the names, and others relying on Copley, denying disclosure under the CPRA. Law enforcement agencies needclear direction about the circumstances under whichtheir police officers’ names should be released in responseto a request for public records. In the instant case, the Court of Appeal ordered the disclosure of the namesofpolice officers who had been involved in a shooting incident. The City’s position is that such disclosure is in direct contravention to this Court’s holding in Copley. After Copley was decided, this Court heard another matter involving a request for disclosure ofpolice officers’ names. In POST, the press requested a list of the namesofall police officers who were appointed and worked as police officers during a particular time period. This Court held that the mere fact that an individual worksas a police officer does not render his name exemptfrom disclosure under the CPRA. However, this Court qualified its holding by indicating that a police officer’s name could be exempt from disclosure whenit waslinked to private or sensitive information. Review is necessary to reconcile the difference between this Court’s holding in Copley that a police officer’s name is protected under California Penal Code Section 832.7 as part of his personnelfile whenit is linked to personnel information and the lower court’s decision in LBPOA v. City of Long Beachthatpolice officers’ names are a matter ofpublic record even when theyare linkedto a critical incident such as a shooting whichis investigated and keptin the officer’s personnelfile. B. Settle Important Questions of Law This Court should grant review to settle an important and recurring issue of broad statewide concern. There is constant tension between law enforcement agencies and the press over the confidentiality of police personnel records and the public’s right to access certain information. In this case, the issue is whether the namesofpolice officers who are involved in shootings are exempt from disclosure under the California Public Records Act. The press on the one handrelies on the notion that the public has the right to know the identity of a police officer who was involved in an on-duty shooting. However, the City opines that releasing the nameofa police officer who wasinvolved in a shooting and is under investigation, possibly facing disciplinary action, is not a matter of public record. The release of the information could compromisethe City’s investigation. In addition, the investigation into an officer’s conduct constitutes a personnel record. Finally, in today’s day and age, where having someone’s namecould be the gatewayto accessing all of their personal contact information, including home address, phone number, and family member information, the threat to officer safety is not theoretical, but real. Therefore, the City seeks clarification from this Court. IV. APPLICABLE LAW A. The California Public Records Act (CPRA) The California Public Records Act (CPRA)is based on the principle that “access to information concerning the conduct of the public’s business is a fundamental and necessaryright of every personin this state.” (California Government Code § 6250). However,this right is not absolute and in adopting the Act, the Legislature also declared it was “mindful ofthe right of individuals to privacy.” (/d). Accordingly, there are numerous exceptions that are designed to protect individuals’ privacy rights. (California Government Code § 6254). One such exception exempts from disclosure “Trlecords, the disclosure ofwhich is exempted or prohibited pursuantto federal or state law, including, but not limited to provisions of the Evidence Coderelating to privilege.” (California Government Code § 6254(k)). Another exception exempts from disclosure records of investigations conducted by a local law enforcement agency. (California Government Code § 6254(f). B. The Pitchess Statutes California law governing the protection of police personnel records is foundin a series ofstatutes in the California Penal Code and the California Evidence Code. These statutes are commonlyreferred to as “Pitchess statutes” in reference to the California Supreme Court case Pitchess v. Superior Court. (Pitchess v. Superior Court (1974) 11 Cal. 3d 531). California Penal Code Section 832.7 establishes the confidentiality of police officer personnel records. California Penal Code Section 832.8 enumerates various categories of information including information about employee appraisal and investigations of complaints. (California. Penal Code §§ 832.7 and 832.8). C. The California Constitution The California Constitution memorializes both the principle that the public has the right to monitor governmentalactivities and the principle that nothing in that principle diminishesa police officer’s right to privacy in his personnel records which are not a matter of public record. (California Constitution, Article I, § 3(b)(1) and (3)). V. STATEMENTOF THE CASE A. The Zerby shooting and subsequent request under the CPRA On December12, 2010, Long Beachpolice officers shot and killed Douglas Zerby. This incident garnered significant media attention because Mr. Zerby was holding a garden hose nozzle that the police officers believed was a gun. Los Angeles Times reporter Richard Winton made a request to the City of Long Beach under the CPRA seeking the names of the police offiers involved in the December 12th shooting and the namesof police officers involved in all shootings from January 1, 2005 until December 11, 2010. The Long Beach Police Officers’ Association (LBPOA) sought a temporary restraining order and preliminary and permanentinjunctions against the City in order to prevent the release of its members’ names. The LBPOAexpressed concernsfor its members’ safety and referenced the ease by which personal information can be obtained over the internet. The City expressed similar concerns and opposed divulging an officer’s name during a pendinginternal investigation due to the fact that the City’s investigation into the incident could be compromised. The Superior Court issued a temporary restraining order. The Los Angeles Times intervened in the case and opposed the LBPOA’s position, which the City had joined. Police Lieutenant Lloyd Cox informed the court that the Police Department’s policy is to protect officers’ names during the course of the administrative and/or criminal investigation based in part on the fact that the investigative materials are part of an officer’s personnel file. Lieutenant Cox also informed the court that the department produces information from police personnel files only in response to motionsfiled pursuant to Pitchess v. Superior Court (1974) 11 Cal. 3d 531, or through discovery in criminal and civil cases. Lieutenant Cox echoed the LBPOA’s concern that the identity of an officer should be protected whenthe officer is involved in critical incident, including a shooting, in order to ensure the officer’s safety and the safety of his family. The Superior Court denied the LBPOA’s motion for injunctive relief and dissolved the temporary restraining order, finding the names were not protected under California Government Code Section 6254 (c), 6254(f) or 6254(k) or under California Penal Code Section 832.7 or 832.8. Finally, the court found the names were notprotected under California Government Code Section 6255(a) because of insufficient evidence of threat to the involved officers. The LBPOAandCityinitially filed a Petition for Writ of Mandate which was denied. The LBPOAsimultaneously filed an appeal and the California Court of Appeal found the matter directly appealable pursuant to California Code of Civil Procedure Section 904(a) (6). The City filed a separate notice of appeal. The California Court of Appeal affirmed the lower court’s decision concluding that the namesofpolice officers who are involved in a shooting are not rendered confidential by any of the statutory exemptions contained in the CPRA. Importantly, the exceptions that were developed occurred prior to the advent of the internet where a person armed with a mere name, and the touch of a few keystrokes can access a multitude of information that was intendedto be kept private, such as home addresses, phone numbers, and family memberinformation. B. Internet postings of police officer’s home addresses, phone numbers, and namesof their family members has become increasingly commonandofficers are being threatened at home. Since the Court of Appeal decision has been published, “Anonymous”, an internet group, together with a group stylingitself as “Occupy Long Beach”has posted the personal information of six Long Beach Police Officers on the internet.’ These officers were involved in shootings or uses of force and include the two officers who were involved in the Zerby shooting, which Occupy Long Beach and Anonymousdescribe in their postings as “murder”. The postings remind these officers about the “warnings” they were previously given and threatens them bysaying, “we do not forgive, we do not forget, expect us”. Along with the threats, Anonymousposted the officer’s home addresses, home andcell phone numbers and in somecases, the names and age of their family members. Asa result of this and prior postings, one officer was contacted at his home, via telephone wherein the caller stated, “Bitch, we know whereyoulive.” According to the lower court, speculative threats are not sufficient to justify withholding an officer’s name under the CPRA. Butin this day and age,the potential for misuse of informationis real and the police officer’s lives are actually being threatened at home. Thereality is that the disclosure of a mere nameallows for access to personal information on the internet, and this information can ' See Long BeachPostarticle dated March 7, 2012 - “Anonymous” Warns Long Beach City Officials to “Expect Us”. http.www.lbpost.com/news/greggorymoore/139300245. Within the article are links to “pastebin.com”, “this padded cell”, and “imagist.com”. Once the link is accessed, the vieweris taken to the particular website which had posted the private information ofat least six officers. 10 be procured with relative ease.” VI. DISCUSSION A. The decision in Long Beach Police Officer Association y. City ofLong Beach is inconsistent with this Court’s prior rulings in Copley and POST. In Copley this Court held the press has no constitutional right of access to police officer personnel records because the California Constitution, Article I, Section 3, subdivision (b)(3) specifically exempts such records from disclosure. (Copley Press Inc., v. Superior Court ofSan Diego County (2006) 39 Cal. 4th 1272). In Copley Press, a newspaper requested the namesofpolice officers who were being disciplined. This Court held the requested information is not a matter of public record. (/d. at 1279). In Copley, the plaintiff based its argument in large part upon the holding in New York Times Co. v. Superior Court (1997) 52 Cal. App. 4th 97, which held that the names of deputies who discharged their weapons during an incident were a matter of public record even though the incident Assuming the Times argues the same potential exists with the release of all police officer names; the reality is that when the focus is on an individual officer or a small numberof officers who are perceived as murderers, the likelihood of cyber stalking and actual dangeris real, as opposedto the disclosure of hundreds or thousands of names which would be a massive fishing expedition. 11 was under investigation. (/d.). In New York Times, the Second Appellate District held that police officers’ names did not become exempt from disclosure to the public simply because the officers’ names were placed in a personnelfile as part of an investigative report. (New York Times Co.v. Superior Court, supra 52 Cal. App. 4th at 104). The New York Times court reasoned that the agency placedthe investigation files in the officers’ personnelfiles in an attempt to prevent disclosure ofthe police officers’ names. It did not recognize that internal investigations into police officer shootings do in fact constitute protected personnel information and form part of a police officer’s personnelfile. (/d. at 103). This Court expressly disapproved of the holding in New York Times. First, this Court indicated that New York Times does not stand for the proposition that “records within a public agency’s possession lose protection to which they are otherwise entitled merely because they were,at some time, available from some other source.” (Copley, supra, (1997) 52 Cal. App. 4th at 1293). Second, this Court found no evidencethat officers’ privacy rights would differ based on whethera disciplinary matter was handled internally or not. (/d. at 1299). In fact, this Court found the analysis in New York Times incorrect, at leastas it applied to disciplinary matters. Ud. at 1298). Importantly, the New York Times case was decided in 1997, prior to the explosion ofinternet use as a wayoflife, hacking, and 12 easy access to private information. In 2007, in a case where the press sought the names and employment dates of police officers registered in the State of California, this Court concluded in POSTthat it was “unlikely that the Legislature contemplated that the identification of an individual as a peaceofficer, unconnected to any ofthe informationit defined as part of a personnel record, would be rendered confidential by § 832.8.” (Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal. 4th 278, 295-296 (emphasis added)). This Court further suggested that disclosing an officer’s name in connection with a particular incident could constitute a basis for nondisclosure. (/d. at 302, fn.12). Yet, the Court of Appeal in LBPOAvs. City ofLong Beach, supra, determinedthat a police officer’s name, connectedto a critical incident such as a shooting did not constitute an unwarranted invasion of privacy, seemingly disregarding this Court’s previous decisions. Reading Copley Press and POSTtogether, it appears the law in the State of California is that the nameof a police officer, unconnected to information containedin a police officer’s personnelfile, is a matter of public record, but whena police officer’s name is connected to information containedin a police officer’s personnelfile, it is not. In LBPOA v. City ofLong Beach,the trial court and appellate court 13 relied on POSTin finding the namesat issue were not connected to any personnel information as enumeratedin the Pitchess statues. But in so doing, the lower courts did not consider that POST distinguished Copley Press on the groundthat the information sought in the POSTcase did “not involve the identification of an individual officer involved in an incident that was the subject of a complaint or disciplinary investigation. The officers’ names, employing departments, and dates of employment were not sought in conjunction with any of the personal or sensitive information that the statue seeks to protect.” (POST, supra, 42 Cal. 4" at 299). In fact, in POST, this Court analyzed a situation under the federal Freedom of Information Act, and distinguishedthat situation from the request for disclosure of police officers namesin general. In POST, this Court focused on the fact that the names requested in the case before it would “merely reveal that the named individuals had worked as peaceofficers;it would not reveal their involvementin any particular case.” (POST, supra, at p. 302, fn.12). The Court of Appeal in LBPOA v. City ofLong Beach agreed with the City that this comment suggested that a particular incident can constitute a basis for nondisclosure. (Exhibit A, page 25). However, it refused to allow the City to withhold the names, absent a showing of unwarranted invasion of personal privacy. The Court of Appeal’s finding is incongruent with existing Supreme 14 Court decisions and its own reliance on the California Attorney General’s opinion. The Attorney General’s opinion described the narrow holding in Copley to mean “that a peace officer’s name may be kept confidential when it is sought in connection with information pertaining to a confidential matter suchas an internal investigation or a disciplinary proceeding.” (91 Ops.Cal.Atty.Gen. 11, 14. (emphasis added)). (Exhibit A, page 18). It is a well-settled rule of statutory construction that the term "or" has a disjunctive meaning and denotes a choice betweenat least two things. (Houge v. Ford (1955) 44 Cal.2d 706, 712; see also, In re Jesusa (2004) 32 Cal.4th 588). "In its ordinary sense, the function of the word'or' is to mark an alternative such as'either this or that." (Houge, supra, 44 Cal. 2d at p. 712). In the instant case, both lower courts relied heavily on the Attorney General opinion which described this Court’s holding in Copley as applicable to either an internal investigation or a disciplinary proceeding. (Exhibit A, page 18). Despite that finding, neither court applied the Copley holding to the department’s internal investigations of its own police officers. B. This Court confirmed the Legislature’s policy decision that the need to maintain confidentiality of police officer personnel records outweighs the public’s interest in disclosure. 15 In Copley, this Court rejected Copley’s policy argumentthat public scrutiny of police officers is vital to prevent the arbitrary exercise of official powerby those whooverseethe officers and to foster public confidence in the system becausethere are public concerns about police misconduct. (Copley, supra, 39 Cal. 4th 1272 at 1298). This Court stated,“it is for the Legislature to weigh the competing policy considerations.” (/d. at 1299), This Court has long recognizedthat its role in construing statuteis to give the statute reasonable construction conformingto the Legislature’s intent and that the words must be construed in context, with statutes governing an issue being harmonized. (/d. fn. 22). This court recognized the legislative intent behind the Pitchess statutes andstated, “[t]he legislative history of this provision confirms the Legislature’s intent to “prohibit any information identifying the individuals involved from being released, in an effort to protect the personal rights of both citizens and officers.” (Ud. at 1297, citing Assem. Com. on Public Safety, Republican Analysis of Assem. Bill No. 2222(1989-1990 Reg. Sess.) Sept. 2, 1989; see also Assem. Com. on Ways & Means, Analysis of Assem. Bill No. 2222 (1989-1990 Reg. Sess.) as amended May 17, 1989). The L.A. Times asserted the same policy argument as Copley; namely that the public has the right to know aboutthe conductofpolice officers, regardless of whether that conductis the subject of personnel 16 action. The Court of Appeal agreed and found the “Legislature’s express protection of investigations of complaints does not encompassthe name of an officer subject to an internal investigation that is unrelated to a complaint.” (Exhibit A, page 19). Following this logic, anytime a complaint is filed in conjunction with an investigation into a shooting, the nameofthe involvedpolice officer will be exempt from disclosure, but if a complaint is not filed, the officer’s name will be subject to disclosure regardless of the department’s internal investigation. The City seeks clarification on this point and on this Court’s position regarding the release of identifying information that stems from an internal law enforcement investigation. C. A police officer’s name when linked to an internal investigation should be exempt from disclosure under Government Code Section 6254(f). The Court of Appeal recognized that Long Beachpolice officers involved in a shooting who are subject to an administrative and/or criminal investigation subsequent to the shooting are protected under California Government Code 6254(f). (Exhibit A, P. 8 fn. 5). This subsection provides that records of investigations conducted by a local law enforcement agencyare not a matter of public record and providesin pertinentpart: 17 “frjecords of complaints to, or investigations conducted by, or records of intelligence information or security proceduresof, the Office of the Attorney General and the Department of Justice, the California Emergency Management Agency, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. However, state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informantsto, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damageorloss, as the result of the incident caused by arson, burglary,fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation. However, nothing in this division shall require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.” (California Government Code § 6254(f)). Section 6254(f) clearly exempts from disclosure the names of officers who are underinvestigation, through a department’s internal investigation process. The plain language is clear and the Court of Appeal erroneously found subsection (f) would only apply in cases where “disclosure would endanger the person’s safety 18 or the completion of the investigation”. (Exhibit A, page 8, footnote 5). The balancing referenced in subsection (f) applies to balancing whetherthe information should be providedto the victim of the crime or his authorized representative, not to the public. The balancing looks to whetherthe disclosure of the information would endangerthe safety ofa witness or compromise the successful completion of an investigation or a related investigation. The language of subsection (f) does not require broad disclosure as implied by the Court of Appeal. In fact, it only requires disclosure to the victim of the crime, with the only exception beingif someone namedin the report would be endangeredorifthe investigation would be compromised. Public agencies need clarification as to whether or not they are permitted to withhold police officers’ names in response to a request for public records when the namesare included in an administrative or criminal investigation that is done internally. Records of investigation under California Government Code Section 6254(f) are exempt on their face and the release of such investigative materials would publicly expose sensitive material. ( Haynie v. Superior Court (2001) 26 Cal 4th 1061). The City opinesthat this includes the nameofthe involved officer. Subsection (f) does not distinguish between investigative materials that are gathered to determine if a crime may occuror has occurred. (/d. at 1071). 19 Here, the lower court ignored the evidenceofinternal investigations that occur immediately following an officer involved shooting and determined that evenif there is an internal investigation, the namesof officers under investigation should be a matter of public record. The City respectfully disagrees and seeksclarification on this issue; namely, are police officers’ names exemptfrom disclosure under subsection (f) where there is an internal law enforcement investigation following a shooting? VII. CONCLUSION The issue of protecting police officer names from disclosure during an internal investigation into a shooting is one of deep concern to cities and counties throughout California. With the proliferation of information on the internet and the ability of groups to use an officer’s nameasthestarting point to obtaining personal and private information, both aboutthe officer and his family,it is critical that this issue be addressed. This Court is positionedto clarify the differing interpretations of when a police officer’s nameis a matter of public record and whenit is not. Accordingly, the City respectfully requests that its Petition for Review be granted Dated: March 15, 2012 ROBERT E. SHANNON,City Attorney By: [beri C INA L. CHECEL, SenitszVeputy City Attorney Attorney for Appellant and Real Party In Interest CITY OF LONG BEACH 20 CERTIFICATE OF COMPLIANCE Counsel of Record hereby certifies that the enclosed Petition for Review wasproduced using 13-point Times New Romantype,including footnotes, and contains approximately 5346 words, whichis less than the 8,600 words permitted. Counsel relies on the word count of the computer program used to preparethis brief. Dated: 3.15.12 ROBERT E. SHANNON,City Attorney By: Diberce CHR\STINA L. CHECEL, Senior Deputy City Attorney Attorney for Appellant and Real Party In Interest CITY OF LONG BEACH 21 EXHIBIT “A” Filed 2/7/12 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION TWO LONG BEACH POLICE OFFICERS ASSOCIATION, B231245 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. NC055491) V. CITY OF LONG BEACHet al., Defendants and Appellants; LOS ANGELES TIMES COMMUNICATIONSLLC, Real Party in Interest and Respondent. APPEAL froman order of the Superior Court of Los Angeles County. Patrick T. Madden, Judge. Affirmed. Law Offices of James E. Trott, James E. Trott and Larry J. Roberts for Plaintiff and Appellant. Robert E. Shannon, City Attorney, Christina L. Checel, Deputy City Attorney, for Defendants and Appellants. Los Angeles Times Communications LLC, Karlene W. Goller; Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox and Jeff Glasser for Real Party in Interest and Respondent. Stone Busailah and Michael P. Stone for Los Angeles Police Protective League as Amicus Curiae on behalf of Plaintiffs and Appellants Long BeachPolice Officers Association. ACLUFoundation of Southern California, Peter Bibring; ACLU Foundation of Northern California, Michael T. Risher; ACLU Foundation of San Diego & Imperial Counties and David Blair-Loy as Amici Curiae on behalf of Real Party in Interest and Respondent Los Angeles Times Communications LLC. Sheppard, Mullin, Richter & Hampton and Guylyn R. Cummins as Amicus Curiae on behalf of Real Party in Interest and Respondent Los Angeles Times Communications LLC. OK OK OK OK 3k Real party in interest and respondent Los Angeles Times Communications LLC (Times) made a request under the California Public Records Act (Gov. Code, § 6250 et seq.; Cal. Const., art. I, § 3(b))! (CPRA) seeking the namesofpolice officers involved in a December 2010 officer-involved shooting in Long Beach and those involved in officer-involved shootings in Long Beachfor the preceding five years. Plaintiff and appellant the Long BeachPolice Officers Association (LBPOA) brought an action against defendants and appellants the City of Long Beach, the Long BeachPolice Department and Chief of Police James McDonnell (collectively City) seeking to enjoin disclosure of the names. After initially issuing a temporary restraining order,the trial court granted the Times’s request to dissolve the order and denied, without prejudice,the LBPOA’s request for an injunction. Weaffirm. Thetrial court properly ruled that officer names are not rendered confidential by any of the statutory exemptions contained in the CPRA. | Unless otherwise indicated, all further statutory citations are to the Government Code. FACTUAL AND PROCEDURAL BACKGROUND On December 12, 2010, Long Beach police officers shot and killed Douglas Zerby, an intoxicated, unarmed 35-year-old man who wascarrying a garden hose nozzle that officers mistook for a gun. Following the shooting, Times reporter Richard Winton made a CPRA request to the City seeking “[t]he names of Long Beachpolice officers involved in the December12 office[r] involved shooting in the 5300 block of East Ocean Boulevard” and “[t]he names of Long Beachpolice officers involved in officer involved shootings from Jan. 1[,] 2005 to Dec. 11, 2010.” The City initially respondedthat it intended to comply with the request by January 10, 2011. After the City informed the LBPOAofthe request and its intent to comply, the LBPOAfiled a verified complaint against the City, seeking a temporary restraining order and preliminary and permanentinjunctions to prevent the release of the names. In support of the LBPOA’s request, LBPOApresident Steve James averred he was aware that the shooting review which takes place following an officer-involved shooting can lead to findings resulting in an internal affairs investigation. He expressed safety concemsabout releasing the names of shooting officers, referring to an incident in which an anonymousblog posting contained a threat to a shooting officer’s family and to another incident in which an officer involved in a shooting was reassigned to another area following death threats. He also described the ease with whichthe Internet allows an individual to discover personal information about another and opinedthat “[t]he best way to keep officers safe from these unknown people who maytry to bring harmis to notlet them know whichofficer was involved.” Following a December30, 2010 hearing, the trial court issued a temporary restraining order preventing the release of the officers’ names. Finding that the Times should have been given notice of the proceedings,thetrial court directed the LBPOA to give notice and set the matter for a preliminary injunction hearing. Thereafter, the Times movedto intervene and filed opposition. The City filed a memorandum in whichit aligned itself with the LBPOA. In support of the City’s position, Long Beach Police Department Lieutenant Lloyd Cox averred that department 3 policy wasnotto release the namesofofficers involved in an officer-involved shooting because those officers become the subject of an administrative and/or criminal investigation, and the investigative materials becomepart of the officers’ personnel records. He further declared that upon completion of the investigative process, the officer names were kept confidential unless a motion wasfiled pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) or they were sought through discovery in a civil or criminal case. He indicated that, since late 2007, the police department had issued eight officer safety bulletins about potential threats or retaliation against officers, two of which related to officer-involved shootings. Noting that knowing someone’s namecan be the gateway to a world of information about him or her through the Internet, Lieutenant Cox declared that “the Long Beach Police Departmentinsists on protecting the identity of its officers, when those officers are involved incritical incidents, including shootings, in order to ensure their safety and the safety of their families.” Following a January 18, 2011 hearing,the trial court issued an order granting the Times’s request to intervene andto dissolve the temporary restraining order, and denying without prejudice the LBPOA’s preliminary injunction request. As part of the order, the trial court sustained the Times’s evidentiary objections to James’s declaration. Specifically, it sustained objections to James’s generalized statements about safety concerns, his description of the two incidents of anonymousthreats and his opinions about Internet access and officer safety. The Timesdid notfile objections to Lieutenant Cox’s declaration. Addressing the first requisite element of preliminary injunctiverelief, the trial court ruled that the LBPOA had not demonstrated a likelihood of success on the merits. It concluded that the CPRA required disclosure of officer names unless the LBPOAor the City established the names were exempt fromdisclosure undera statutory exception. Thetrial court ruled that the release of the names was not an unwarranted invasion of personalprivacy (§ 6254, subd.(c)), the names could not be shielded as an investigative report (§ 6254, subd.(f)), and the names were not protected as a part of a policeofficer’s personnel record (§ 6254, subd. (k); Pen. Code, §§ 832.7 & 837.8). Nor did the trial 4 court find that the public interest in nondisclosure outweighed the public interest served by disclosure of the names. (§ 6255, subd.(a).) With respect to the elementof irreparable harm,the trial court ruled that neither the LBPOAnorthe City had demonstrated that any officer waslikely to suffer harmful consequencesas a result of disclosure. But it recognized that, potentially, a showing could be madethat disclosing the identity of a particular officer would compromisehis or her safety. Accordingly, the trial court ruled that its denial was withoutprejudice to renewed requests by the LBPOAorthe City to seek, upon a proper evidentiary showing, an order protecting the namesofparticular officers from disclosure. Finding that the balance of hardships element had been addressed in connection with the other elements, the trial court reasoned that the present balance weighedin favorof disclosure but, depending on a future evidentiary showing, could shift with respect to the name of a particular officer. Thereafter, the trial court granted the LBPOA’s application for a 30-day stay to file for writ relief in this Court. In February 2011, the LBPOAandthe City filed petitions for writ of mandate and the LBPOA simultaneously filed a notice of appeal fromthetrial court’s order. We issued an order providing that thetrial court’s order was directly appealable pursuant to Code of Civil Procedure section 904.1, subdivision(a)(6) and had been appealed by the LBPOA. Weconstrued the LBPOA’s petition asa petition for writ of supersedeas, which wegrantedto stay the trial court’s order, and denied the petition for writ of mandate in all other respects. The City filed a separate notice of appeal in March 2011. DISCUSSION Appellants contendthatthe trial court misconstrued both the applicable statutory scheme and California Supreme Court authority in ordering the disclosure of officer names. They also contendthat the trial court engaged in an improper balancing,failing to accord due weightto the interests served by nondisclosure. We disagree with their | contentions.” I. The Statutory Scheme and Standard of Review. “In 1968, the Legislature enacted the CPRA ‘for the purpose of increasing freedom of information by giving membersof the public access to information in the possession of public agencies. [Citation.]’ [Citation.]” (Copley Press, Inc. y, Superior Court (2006) 39 Cal.4th 1272, 1281 (Copley Press).) Consistent with this purpose, the Legislature declared that “access to information concerning the conduct of the people’s businessis a fundamental and necessary right of every person inthis state.” (§ 6250.) Since 2004, the California Constitution has confirmed the principle: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, . . . the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, § 3, subd. (b)(1); see International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 329 Unternational Federation), Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 288 (POST).) But the right of access to public records under the CPRA has neverbeen absolute. (Copley Press, supra, 39 Cal.4th at p. 1282.) In section 6250, the Legislature declaredit was“mindful of the right of individuals to privacy,’” and the dual concern for privacy and disclosure appears in numerousprovisions throughout the CPRA. (Copley Press, supra, at p. 1282.) Likewise, the Constitution recognizes the right to privacy, providing that nothing in article 1, section 3, subdivision (b) is intended to supersede or modify the constitutional right of privacy or the statutes or rules guaranteeing that right, or to repeal 2 Welikewise disagree with the Times’s contention that the LBPOAlacks standing to bring this action. Currently nothing in the statutory schemeprohibits a third party or other public agency whose interests will be affected by disclosure from bringing an action under general equitable principles. (See Filarsky v. Superior Court (2002) 28 Cal.4th 419, 431; County ofSanta Clara v. Superior Court (2009) 171 Cal.App.4th 119, 130.) or nullify any constitutionalor statutory exceptionto the right of access to public records. (Cal. Const., art. 1, § 3, subds. (b)(3) & (b)(5).) The CPRA defines““‘[p]ublic records’” to include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by anystate or local agency regardless of physical formor characteristics.”3 (§ 6252, subd. (e).) According to the Legislature, the definition of public records “‘is intended to cover every conceivable kind of recordthat is involved in the governmental process andwill pertain to any new formofrecord-keeping instrumentasit is developed. Only purely personal information unrelated to “the conductof the public’s business” could be considered exempt from this definition ....’ (Assem. Statewide Information Policy Com., Final Rep. (Mar. 1970) 1 Assem. J. (1970 Reg. Sess.) appen.p. 9.)” (POST, supra, 42 Cal.4th at p. 288, fn. 3.) Section 6253, subdivisions (a) and (b) provide that public records are open to inspection and must be madeavailable to the public upon request, unless they are exempt from disclosure by an express provision of law. Section 6254 exempts fromdisclosure numerous, specifically defined categories of records.* Pertinent here, section 6254, subdivision (c) exempts fromdisclosure “[p]ersonnel, medical, orsimilarfiles, the disclosure of which would constitute an unwarranted invasion of personal privacy”; and subdivision (k) exempts “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including,but not limited to, provisions of the Evidence 3 The definition of “[w]riting” is correspondingly broad and “means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, includingletters, words, pictures, sounds, or symbols, or combinations thereof, and any record therebycreated, regardless of the manner in which the record has beenstored.” (§ 6252, subd. (g).) 4 The Legislature has recently amended section 6254 to add minor modifications that do not affect our analysis of the statute. (See Stats. 2010, c. 178 (Sen. Bill No. 1115), § 33, operative Jan. 1, 2012.) Coderelating to privilege.”> Further, “[s]ection 6255, subdivision(a), often referred to as the ‘catchall exemption,’ provides that an otherwise nonexempt record may be withheld if ‘on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.’” (Sonoma County Employees’ Retirement Assn. v. Superior Court (2011) 198 Cal.App.4th 986, 991.) The exemption provided by section 6254, subdivision(k), is not an independent exemption, but rather, ““merely incorporates other prohibitions established by law. {Citations.]’ [Citation.]” (Copley Press, supra, 39 Cal.4th at p. 1283.) In 1998, the Legislature added section 6275 to the CPRA, which provides a nonexclusivelist of statutes that operate to exemptrecords, or portions thereof, from disclosure. (Copley Press, supra, at p. 1283.) Amongthe statutes identified (see § 6276.34), Penal Code section 832.7, subdivision (a), exempts from disclosure “[p]eace officer or custodial officer personnel records and records maintained by anystate or local agency pursuant to Section 832.5, or information obtained from these records,” except by discovery pursuant to Evidence Codesections 1043 and 1046. Penal Code section 832.8 defines “personnel records” as used in Penal Codesection 832.7 to mean “any file maintained under that individual’s nameby his or her employing agency and containing recordsrelating to any of the following: [{] (a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. [9] 5 Appellants do not claim that the requested information should be withheld under a separate statutory exemption, section 6254, subdivision (f), which exempts a limited category of records of complaints or investigations conducted by a local law enforcement agency, but excludes from the exemption the names of persons involved unless the disclosure would endanger the person’s safety or the completion of the investigation. 6 Again, appellants do not contend that the requested information falls within the second category of records identified in Penal Code section 832.7, subdivision (a), records maintained pursuant to Penal Code section 832.5, a statute which mandates that “Telach department or agency in this state that employs peaceofficers shall establish a procedure to investigate complaints by membersof the public against the personnel of these departments or agencies... .” (Pen. Code, § 832.5, subd. (a)(1).) 8 (b) Medical history. [] (c) Election of employee benefits. [4] (d) Employee advancement, appraisal, or discipline. [§]] (e) Complaints,or investigations of complaints, concerning an event or transaction in which he or sheparticipated, or which he or she perceived, and pertaining to the manner in which he or she performedhis or her duties. [§] (f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.” “Statutory exemptions from compelled disclosure under the CPRA are narrowly construed. [Citations.] The burden of proving a specific statutory exemption applies (or that the public interest in nondisclosure clearly outweighs the interest in disclosure) is on the proponent of nondisclosure. [Citations.]” (Sonoma County Employees’ Retirement Assn. v. Superior Court, supra, 198 Cal.App.4th at p. 992.) In reviewing an order prohibiting disclosure under the CPRA,“[flactual findings madebythetrial court will be upheld if based on substantial evidence. But the interpretation of the [CPRA], andits application to undisputed facts, present questions of law that are subject to de novo appellate review. (CBS Broadcasting Inc. y. Superior Court (2001) 91 Cal.App.4th 892, 905-906.) (BRY, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 750; accord, Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1336; City ofHemetv. Superior Court (1995) 37 Cal-App.4th 1411, 1416.) Il. The LBPOADid Not Meet Its Burden to Show That Officer Names Are Exempt from Disclosure Under the CPRA. Thetrial court concluded that the LBPOAandthe City failed to showthat the information requested by the Times—names of Long Beachpolice officers involved in officer-involved shootings between January 2005 and December 2010—fell within any CPRA exemption. To reach its conclusion,the trial court relied on a series of cases interpreting the CPRA and applying it to information about officers, includingtheir names. In New York Times Co. v. Superior Court (1997) 52 Cal.App.4th 97, 99 (New York Times), disapproved on another point in Copley Press, supra, 39 Cal.4th at page 1298, 9 Division Six ofthis district held that the CPRA required disclosure of the names of officers who fired shots at a specific victim. There, copies of an internal investigative report of the shooting were placed in the officers’ personal files, and the appellate court rejected the argumentthat the officers’ names were exempt from disclosureas part of those files, reasoning that what was sought “are simply the namesof officers whofired their weapons while engagedin the performanceof their duties” and concludingthat a public agency may not avoid disclosure “by placing into a personnelfile what would otherwise be unrestricted information.” (New York Times, supra, at pp. 102, 103.) It likewise rejected the sheriff's arguments that disclosure impaired the officers’ privacy interests (§ 6254, subd. (c)) or that any balancing weighed in favor of nondisclosure undersection 6255, reasoning that “‘[t]he perceived harm to deputies from revelation of their namesas having fired their weaponsin the line of duty resulting in a death does not outweigh the public interest served in disclosure of their names.” (New York Times, supra, at p. 104.) The Supreme Court in Copley Press, supra, 39 Cal.4th 1272, reached a contrary conclusion regarding the disclosure of civil service commission recordsrelating to a deputy sheriff's administrative appeal of a disciplinary matter, where the information sought included “the deputy’s name and all documents, evidence, and audiotapes from the appeal.” (/d. at pp. 1279, 1280.) The Court concludedthat the disciplinary appeal records gualified under Penal Code section 832.7, subdivision (a), as personnel records maintained by the agency pursuant to Penal Code section 832.5. (Copley Press, supra, at pp. 1288-1293.) Specifically addressing why the deputy’s identity was exempt from disclosure, the Copley Press Court concludedthat, read together, Penal Code section 832.7, subdivisions (a) and (c), were “designed to protect, among other things, ‘the identity of officers’ subject to complaints. [Citations.]” (Copley Press, supra, at p. 1297.) In the context of this conclusion, the Court criticized the broad and unqualified declaration in New York Times, supra, 52 Cal.App.4th at page 101 “that ‘[uJnder [Penal Code] sections 832.7 and 832.8, an individual’s nameis not exempt from disclosure.’ [Citation.] As the preceding discussion ofthe statutory language andlegislative history 10 demonstrates, the court’s unsupported assertion is simply incorrect, at least insofar as it applies to disciplinary matters like the one at issue here. Thus, we disapprove New York Times Co. v. Superior Court, supra, 52 Cal.App.4th 97, to the extentit is inconsistent with the preceding discussion, and we reject Copley’s reliance onthat decision.” (Copley Press, supra, 39 Cal.4th at p. 1298.) One yearlater, the Supreme Court in POST, supra, 42 Cal.4th 278, held the CPRA required the disclosure of officer names, employing departments and hiring and termination dates includedin the database of the Commission on Peace Officer Standards and Training, an agencythat established standards and provided educational andtraining programsfor peace officers. (/d. at pp. 284-285.) Examining both the language and legislative history of Penal Code section 832.8, the Court found no basis to conclude that type of information constituted components of a peace officer’s personnel record. (POST, supra, at pp. 289-293.) The Court explained: “The categories of information listed in section 832.8 certainly are sufficiently broad to serve the purposesofthe legislation and to protect the legitimate privacy interests of peace officers. To extend the statute’s protection to information not included within any of the enumerated categories merely because that information is containedin a file that also includes the type of confidential information specified in the statute would serve no legitimate purpose and would lead to arbitrary results. Therefore, we conclude that peace officer personnel records include only the types of information enumerated in section 832.8.” (POST, supra, at p. 293.) Further, the Court declined to construe any of the categories of information identified in Penal Code section 832.8 to encompassofficer identities, finding it “unlikely that the Legislature contemplated that the identification of an individual as a peace officer, unconnected to any of the information it defined as part of a personnel record, would be rendered confidential by section 832.8.” (POST, supra, 42 Cal.4th at pp. 295- 296.) POSTdistinguished Copley Press, supra, 39 Cal.4th 1272, on the ground the information soughtdid “not involve the identification of an individualas the officer involved in an incident that was the subject of a complaint or disciplinary investigation. 1] The officers’ names, employing departments, and dates of employment were not sought in conjunction with any of the personalor sensitive information that the statute seeks to protect.” (POST, supra, at p. 299.) Finally, the Court concluded that “‘[a] mere assertion 993of possible endangerment’” to officers and their families was insufficient to justify nondisclosure under section 6254, subdivision (c) or section 6255, but allowed the commission to make a further showinginthetrial court that information concerning particular officers should be exempt from disclosure. (POST, supra, at pp. 301, 302, 303.) Thetrial court here also relied on an Attorney General opinion whichsynthesized the foregoing cases to “concludethat, in response to a request made underthe [CPRA] for the names of peace officers involved in critical incident, such as one in whichlethal force was used, a law enforcement agency must disclose those names unless, on the facts of the particular case, the public interest served by not disclosing the namesclearly outweighs the public interest served by disclosing the names.” (91 Ops.Cal.Atty.Gen. 11 at *6 (May 19, 2008); see California Assn. ofPsychology Providers v. Rank (1990) 51 Cal. 3d 1, 17 [“‘Opinions of the Attorney General, while not binding,are entitled to great 3299 ceeweight’” and “‘are persuasive “since the Legislature is presumed to be cognizantof that construction of the statute”’”’]; see also International Federation, supra, 42 Cal.4th at Coep. 331 [relying on three Attorney General opinionsfor the proposition that “‘the name of every public officer and employee . . . is a matter of public record’”’].) Relying heavily on POST, supra, 42 Cal.4th 278, the trial court here concluded that appellants failed to show the information sought by the Times fell within any of the statutory exemptions. We share the view that relevant case law leads to the inexorable conclusion that the namesof officers involved in officer-involved shootings overa five- year period must be disclosed under the CPRA,absent any particularized showing ofthe interests served by nondisclosure. Notwithstanding POST, appellants maintain that the statutory scheme allows for nondisclosure whenofficers are linked to a critical incident and internally investigated, and that the privacyinterests of officers involved in a 12 shooting must be deemed paramount dueto the potential threat to their safety stemming from disclosure. Accordingly, we examineeach of the claimed exemptionstn turn. A, Officer Names Are Not Exempt Under Section 6254, Subdivision (k) Via Penal Code Sections 832.7 and 832.8. Addressing the application of section 6254, subdivision (I), the trial court ruled: “Because the information sought does notfall into any of the ‘personnel records’ categorieslisted in Penal Code § 832.8, it is not within the privilege created by Penal Code § 832.7.” In evaluating whether the namesofofficers involved in officer-involved shootings are protected from disclosure by Penal Code sections 832.7 and 832.8 as part of a peace officer personnel record, we are guided by well-settled principles of statutory interpretation. “Our role in construing a statute is to ascertain and give effect to the Legislature’s intent. ‘To determinethat intent, a courtfirst looks to the statutory words themselves, giving to the language its usual and ordinary import. The court construes statutory wordsin context, keeping in mind the statutory purpose. Statutory sections relating to the same subject matter must be harmonized, both internally and with each other, to the extent possible.’ [Citations.] ‘Furthermore, we considerportions ofa statute in the context of the entire statute and the statutory scheme of whichitis a part, giving significance to every word, phrase, sentence, and part of an act in pursuanceofthe legislative purpose.’ [Citation.] Atall times, ‘[oJur foremost task remains ascertainment of the legislative intent, including consideration of “the entire scheme of law of which it is a part so that the whole may be harmonized andretain effectiveness.” [Citation.]’ [Citation.]” (Albillo v. Intermodal Container Services, Inc. (2003) 114 Cal.App.4th 190, 200.) Penal Codesection 832.7 provides for the confidentiality of “[p]eace officer or custodial officer personnel records” and “information obtained fromthese records... .” In turn, Penal Code section 832.8 defines peace officer personnel records as “anyfile maintained underthat individual’s name by his or her employing agency and containing records relating to any of”a list of enumerated categories of information. The Legislature enacted thesestatutes to codify the procedures for discovery of peace officer 13 personnel files; those discovery motions had cometo be knownas “Pitchess motions” following the Supreme Court’s decision in Pitchess, supra, 11 Cal.3d 531. (See generally Zanone vy. City of Whittier (2008) 162 Cal.App.4th 174, 186 & fn. 13, 187.) Thelegislative purpose of the statutes was to “provide retention of relevant records while imposing limitations upontheir discovery and dissemination,” and to protect peace officer personnel records from “random discovery by defendants asserting self-defense to chargesof criminal assault upon a police officer.”? (San Francisco Police Officers’ Assn. v. Superior Court (1988) 202 Cal.App.3d 183, 190.) Nowherein either the language of Penal Code sections 832.7 and 832.8 or the statutes’ legislative history is there any indication that these provisions were designed to protect the confidentiality of officer names when those namesare untethered to one of the specified componentsofthe officer’s personnel file. As POST, supra, 42 Cal.4th at page 295, concluded: “Wefind no indication that the Legislature, in adopting sections 832.7 and 832.8, was concerned with making confidential the identities of peace officers or the basic fact of their employment. Rather, the legislative concern appears to have been with linking a namedofficer to the private or sensitive informationlisted in section 832.8.” Consequently, “the information sought by the Timesis not protected fromdisclosure by section 832.7 unless the request encompassesoneofthe types of information enumeratedin section 832.8.” (POST, supra, at p. 294.) 1. Personal data. Penal Code section 832.8, subdivision (a) describes recordsrelating to “[p]ersonal data, including marital status, family members, educational and employmenthistory, homeaddresses, or similar information.” Explaining that while a name might be characterized as “personal data’” in a broad sense, POST determined that the statutory 7 Wegrant the Times’s request to take judicial notice of exhibits A and B,the legislative history of Senate Bill No. 1436 (1977-1978 Reg. Sess.), the legislation which resulted in the enactment of Penal Code sections 832.7 and 832.8, as well as related Evidence Code provisions. (See Evid. Code, §§ 452, subd. (c) & 459; Flatley v. Mauro (2006) 39 Cal.4th 299, 306, fn. 2.) 14 term ‘‘‘personal’” connoted something private, not generally knownto the public. (POST, supra, 42 Cal.4th at p. 296 [“The information specifically listed in section 832.8, subdivision (a), is the type of informationthat is not generally knownto persons with whomofficers interact in the course of performingtheir official duties”].) In contrast, an officer’s nameis typically not private and is available to the public when an officer wears a badge depicting his or her name (Pen. Code, § 830.10) or signs a police report. (POST, supra, at p. 296.) POSTfoundintentional the Legislature’s omissionof officer names fromthe list of personal data: “Had the Legislature intended to prevent the disclosure of officers’ identities as such, an obvious solution would have beento list ‘name’ as an item of ‘[p]Jersonal data’ under subdivision (a) of section 832.8.” (POST, supra, at p. 298 [citing statutes specifying an individual’s name as personalor confidential information]; accord, Sacramento County Employees’ Retirement System v. Superior Court (2011) 195 Cal.App.4th 440, 466.) POST concludedthat absent“a more specific indication in the statute, we hesitate to concludethat the Legislature intendedto classify the identity of a public official whose activities are a matter of serious public concern as ‘personaldata.’” (POST, supra, at p. 296.) Relying on POST, supra, 42 Cal.4th 278, the trial court reasoned that an officer’s nameis not personal data within the meaning of Penal Code section 832.8, subdivision (a), explaining: “The fact that an officer’s nameis linkedto a critical event, such as a shooting, is not ‘personal’ to the officer in the same way that things like marital 999 status, education, employmenthistory, and the like are ‘personal.’” Arguing to the contrary that an officer’s involvementin a critical incident necessarily renders the officer’s identity confidential, LBPOArelies on Copley Press, supra, 39 Cal.4th 1272, where the Court stated that “section 832.7, subdivision(a), is designed to protect, among other things, ‘the identity of officers’ subject to complaints. [Citations.]” (/d. at p. 1297.) But the Supreme Court later explained that Copley Press should not be construed to protectthe identity of officers who are not subject to a complaint or disciplinary action. “Our decision in Copley Press, Inc. v. Superior Court, supra, 39 Cal.4th 1272, does not support the proposition that lists of names of peace officers, 15 identified in conjunction with their employing departments and dates of employment, constitute confidential personnel records.” (POST, supra, 42 Cal.4th at p. 298.) The POST Court continued: “Unlike Copley Press, Inc. v. Superior Court, supra, 39 Cal.4th 1272, .. . the case before us does not involve the identification of an individual as the officer involved in an incident that was the subject of a complaint or disciplinary investigation. The officers’ names, employing departments, and dates of employment were not sought in conjunction with any of the personalor sensitive information that the statute seeks to protect. We concludethat the information ordered to be disclosed by the Commissionis not ‘[p]ersonal data’ within the meaning of section 832.8, subdivision (a).”8 (POST, supra, at p. 299.) Importantly, the POST Court expressly retreated from any disapproval ofNew York Times, supra, 52 Cal.App.4th 97, explaining: “Wedisagreed with the statement in [New York Times] that ‘“{u]nder Penal Code sections 832.7 and 832.8, an individual’s 399nameis not exempt fromdisclosure,””’ but our disagreement was qualified: we concluded that this broad assertion wasincorrect ‘at least insofar as it applies to disciplinary matters like the oneat issue here.’ [Citation.]” (POST, supra, 42 Cal.4th at p. 298.) Moreover, the POST Court cited with approval a separate statement from New York Times concerning the public’s interest in the “identity and activities” of its peace officers. (POST, supra, at p. 297 [“‘In order to maintain trust in its police department, the public must be kept fully informed ofthe activities of its peace officers’”].) We agree with the Attorney General that the Supreme Court’s deliberate reliance on New York Times, and the limiting of its previous disapprovalto an isolated sentence of that case, demonstrate 8 In this manner, POSTeffectively disposed of the example posited by the City that a request for a specific category of officer names—i.e., those officers who have had cancer within the past five years—could effectively amountto the disclosure of protected personal data. (See Pen. Code, § 832.8, subd. (b) [exempting medical history from disclosure].) The City’s example ignores the distinction between information, such as medical history, specified in Penal Code section 832.8 and therefore protected from disclosure, and information such as involvement in a shooting orother critical incident that is not. (See POST, supra, 42 Cal.4th at p. 294.) 16 the continued viability ofNew York Times. (See 91 Ops.Cal.Atty.Gen. at *4.) According to New York Times, the namesofofficers involved in a shooting may be provided without disclosing any aspect of an officer’s personnelfile, including personal data. (New York Times, supra, 52 Cal.App.4th at pp. 103-104.) 2. Employee advancement, appraisal or discipline. As an alternative basis for nondisclosure, the LBPOArelies on the exemption provided by Penal Codesection 832.8, subdivision (d) for “[e]mployee advancement, appraisal, or discipline.” It points to the City’s internal policies, which require an internal investigation of an officer involved in a shooting that can result in disciplinary action being taken againstthe officer, and arguesthat officer namesare therefore protected from disclosure. The City makes a related argument, characterizing the internal investigation as an “appraisal” similarly protected from disclosure underthe statute.? Asthe trial court observed, the Times’s request sought only the identity of officers involved in shootings; it did not seek protected “information about whether these officers were disciplined, promoted, or about how the shootings affected the officers’ performanceevaluations.” This observation is consistent with the Supreme Court’s conclusion in POST, supra, 42 Cal.4th at page 295, that Penal Code section 832.8 “prevents the unauthorized disclosure of the specified types of information concerning a namedofficer,” but does not make confidential the officer’s identity. Indeed, the Court 9 Neither the LBPOA northe City provided a copy of the City’s internal policies to the trial court. Accordingly, we deny the City’s request on appeal for judicial notice ofa portion of the Manual of the Long Beach Police Department regarding firearm discharge investigations. (E.g., Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [absent exceptional circumstances, “[rJeviewing courts generally do not take judicial notice of evidence not presented to the trial court”]; Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 332, fn. 9 [declining to take judicial notice of materials not before the trial court].) Nonetheless, Lieutenant Coxidentified the relevant policy in his declaration, averring that officers involved in a shooting are subject to an administrative and/or criminal investigation for their conduct. In view of this evidence, we consider whetheran officer’s involvementin an internal investigation serves to exempt the officer’s name from disclosure without reference to the materials in the judicial notice request. 17 in International Federation, supra, 42 Cal.4th at page 336 soundly rejected the notion that a public entity’s internal policies—there, the practice of refusing to disclose salary information—can dictate the entity’s disclosure obligations: “Whetheror not a particular type of record is exempt should not depend upon the peculiar practice of the government entity at issue—otherwise, an agency could transform public recordsinto private ones simply by refusing to disclose them over a period of time.” Likewise, appellants cannot transform an officer’s identity into confidential information by asserting that the officer’s involvementin a shooting hasresulted in an appraisalor discipline. The Supreme Court has repeatedly stated that the protection afforded by Penal Code section 832.8 does not extend to information that may be contained in the samefile as information expressly protected by the statute. (POST, supra, 42 Cal.4th at p. 291 [“we do not believe that the Legislature intended that a public agencybe able to shield information from public disclosure simply by placingit in a file that contains the type of information specified in section 832.8”]; Williams v. Superior Court (1993) 5 Cal.4th 337, 355 [‘“the law does not provide, that a public agency may shield a record frompublic disclosure, regardless of its nature, simply by placing it ina file labelled ‘investigatory’”].) Because the disclosure of the name of an officer who was involved in a shooting does not reveal any information aboutthe officer’s advancement, appraisal or discipline, the officer’s name is not protected by Penal Codesection 832.8, subdivision (d). Copley Press, supra, 39 Cal.4th 1272 is consistent with this conclusion. There, because disclosure of the deputy’s name was obtained from and would necessarily reveal the type of information expressly protected by Penal Codesections 832.7 and 832.8, the Court concluded that the disclosure of his name was similarly prohibited. (Copley Press, supra, at p. 1297; see also 91 Ops.Cal.Atty.Gen. at *3 [describing the narrow holding in Copley Press “that a peace officer’s name may be kept confidential whenit is sought in connection with information pertaining to a confidential matter such as an internal investigation or a disciplinary proceeding”].) Where an officer’s nameis neither derived fromnorresults in the disclosure of information about “{e]mployee advancement, 18 appraisal, or discipline,”it is not protected from disclosure. (Pen. Code, § 832.8, subd. (d).) 3. Complaints or investigation of complaints. Finally, appellants seekto rely on the protection afforded by Penal Code section 832.8, subdivision (e) for “[c]omplaints, or investigations of complaints, concerning an eventor transaction in which [an officer] participated, or which he or she perceived, and pertaining to the manner in which he or she performedhis orher duties.” Thetrial court ruled the subdivision was inapplicable because “[t]he Times is not seeking information regarding complaints made about the conductof officers who were involved in shootings, or who witnessed officer-involved shootings.” In asserting that the Times sought protected information, appellants reiterate that officers involved in a shooting are typically administratively and sometimescriminally investigated. But they employ the terms “complaint” and “investigation”virtually interchangeably, ignoring that the reference to investigations in Penal Code section 832.8, subdivision (e) pertains only to investigations of complaints. The Legislature used precise language and expressly limited the scope of Penal Code section 832.8, subdivision (e) to investigations of complaints. (See Berkeley Police Assn. v. City of Berkeley (2008) 167 Cal.App.4th 385, 401 [‘The text of the statutes demonstrates that records pertaining to citizen complaints are protected”].) “Where the Legislature makes express statutory distinctions, we must presumeit did so deliberately, giving effect to the distinctions, unless the whole scheme reveals the distinction is unintended. ... [W]e presume the Legislature intended everything in a statutory scheme, and we should not read statutes to omit expressed language or include omitted language.” (Jurcoanev. Superior Court (2001) 93 Cal.App.4th 886, 894.) The Legislature’s express protection of investigations of complaints does not encompass the name ofan officer subject to an internal investigation that is unrelated to a complaint. The legislative history of Penal Code section 832.8 confirms that the Legislature meant what it said whenit limited protection to investigations of complaints. As explained in POST, supra, 42 Cal.4th at page 293: “It is apparent that the Legislature’s 19 major focus in adopting the statutory schemehereat issue was the type of record at issue in Pitchess—tecordsof citizen complaints against police officers.” (See also Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1436 (1977-1978 Reg. Sess.), pp. 1-4 [purpose of bill was to protect information derived from investigation of citizen complaints]; Assem. Com. on Criminal Justice, Final Analysis of Sen. Bill No. 1436 (1977-1978 Reg.Sess.), pp. 1-2 [bill designed to address the situation where a defendant charged with assault againsta police officer seeks to assert self-defense, and “defense attorneys have requested discovery of the victim-officer’s personnelfiles to determineif the officer has had complaints for use of excessive force, in order to demonstrate that the officer has a propensity for violent behavior’].) Given the express legislative purposeto assure the confidentiality of citizen complaint records by providing specific proceduresfor their discovery, we decline to extend the protection in Penal Code section 832.8, subdivision (e) to exempt from disclosure the name of an officer involved in a shooting where no citizen complaint is involved. B. Officer Names Are Not Exempt Under Section 6254, Subdivision (c) or Section 6255, Thetrial court further ruled that the disclosure of officer names did not constitute “an unwarranted invasion of personal privacy” under section 6254, subdivision (c).1® It relied on POST, supra, 42 Cal.4th at pages 300 to 303, to conclude that an officer’s privacy interest in his or her name wasnotsignificant enough to preclude disclosure, particularly when balanced against the public interest in police conduct.!! Though 10 Though thetrial court did not address the characterization of officer names, “|w]e assumefor purposesofanalysis that the records at issue may be characterized as ‘TpJersonnel .. . or similar files’” within the meaning of section 6254, subdivision (c). (POST, supra, 42 Cal.4th at p. 299.) 11. Although section 6254, subdivision (c) does not expressly employ balancingtest, courts have construed the statute’s requirement of an “unwarranted” invasion ofprivacy to require that any privacy interests be weighed against the public interest in disclosure. (E.g., International Federation, supra, 42 Cal.4th at pp. 329-330 [“This exemption [§ 6254, subd. (c)] requires us to balance two competinginterests, .. . the public’s 20 acknowledging that an officer could demonstrate that privacy interests predominate—for example, by showing a particularized threat to his or her safety—the trial court further concluded that appellants’ evidence of speculative and generalized threats was inadequate to outweigh the public interest in disclosure. The public interest in the conduct of peace officers is substantial: ‘Peace officers ‘hold one of the most powerful positions in our society; our dependence on themis high and the potential for abuse of poweris far from insignificant.’ [Citation.] A police officer ‘possesses both the authority and the ability to exercise force. Misuse ofhis authority can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss.’ {Citation.]” (POST, supra, 42 Cal.4th at pp. 299-300.) For these reasons, the POST Court concludedthat the public has a legitimate interest not only in the conductof individualofficers, but also in the balance of the information sought concerning employing departments and hiring and termination dates; such information would enable the Timesto trace officermovement among agencies and identify potentially inappropriate employmentpractices. (/d. at p. 300.) Aspart of its public interest discussion, the Court quoted New York Times, supra, 52 Cal.App.4th at pages 104 to 105: “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 enforcementofficers 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 informedoftheactivities of its peace officers.’” (POST, supra, 42 Cal.4th at p. 297.) Significantly, the New York Times court reasonedthat thereis a heightened public interest in disclosure when anofficer is involved in a shooting,stating: interest in disclosure and the individual’s interest in personal privacy”; POST, supra, 42 Cal.4th at p. 299 [This exemption [§ 6254, subd. (c)] requires us to balance the privacy interests of peace officers in the informationat issue against the public interest in disclosure, in order to determine whether any invasion of personal privacy is ‘unwarranted’”]; New York Times, supra, 52 Cal.App.4th at p. 104 [Section 6254, subdivision (c), allows for a weighing of interests by the trial court”’].) 21 “Disclosure is all the more a matter of public interest when those officers use deadly force and kill a suspect.” (New York. Times, supra, at p. 105.) An officer’s privacy interest in maintaining the confidentiality of his or her name does not outweigh the public’s interest in disclosure. Recognizing that individuals have a privacy interest in controlling the disclosure of personal information, the POST Court declined to characterize “the fact of an individual’s public employment, however, as a personal matter.” (POST, supra, 42 Cal.4th at p. 300.) POST continued: “We find no well-established social normthat recognizes a need to protect the identity of all peace officers. Peace officers operate in the public realm on a daily basis, and identify themselves to the members ofthe public with whom they deal. Indeed, uniformed peace officers are required to wear a badge or nameplate with the officer’s name or identification number. [Citation.]” (Ud. at p. 301; accord, New York Times, supra, 52 Cal.App.4th at p. 104 [“the public interest here outweighsthe right of the deputies to have their names withheld’’]; 91 Ops.Cal.Atty.Gen. at *4 [the public has a “legitimate interest in the identity and conductof peace officers”that “is substantial and ‘both diminishes and counterbalances’ any expectation that a peace officer may havethat his or her identity will ordinarily be kept confidential,” fn. omitted].) Nonetheless, in certain circumstances protecting the anonymity of a peace officer may outweigh the public interest in disclosure. (International Federation, supra, 42 Cal.4th at p. 337.) For example, an undercoverofficer might be able to show that the release of his or her identity would threaten the officer’s safety and effectiveness. (POST, supra, 42 Cal.4th at p. 303; see also /nternational Federation, supra, at p. 337 (“If an officer’s anonymityis essential to his or her safety, the need to protect the officer would outweigh the public interest in disclosure and would justify withholding the officer’s name’’].) In accordance with this authority, the trial court denied appellants’ preliminary injunction request without prejudice and permitted either the LBPOAorthe City to make an evidentiary showing that the disclosure of a particular officer’s identity would jeopardize that officer’s safety or efficacy. 22 Appellants contend that the trial court’s resolution is inadequate and argue that they offered sufficient evidence to show that the disclosure of the name ofany officer involved in a shooting would threaten officer safety. They rely on Lieutenant Cox’s declaration, in which he described generally that many officer-involved shootings involve gang membersor violent criminals who commonly reoffend andretaliate. Describing specific instances of threats against officers, Lieutenant Cox averred: “Since late 2007, the Long Beach Police Department has issued eight Officer Safety Bulletins to the department aboutpotential retaliation/threats against officers, two of which were directly related to shootings involving police officers. As recently as January 10, 2011, the department wasnotified of graffiti at 5100 Appian Way that was approximately 4 feet high and 6 inches long whichread ‘Strike Kill a Cop.’ The department immediately issued an officer safety memoranduminforming officers of the death threat graffiti. The graffiti threat is currently under investigation and detectives will try and determine if there is any connection to recent enforcementactivities, including officer involved shootings.” Lieutenant Cox concluded by outlining the number of waysthatthe Internet enables one to locate the home address of another whose nameis known. Thetrial court appropriately characterized this evidence as establishing nothing “beyond the generalized and speculative invocation of fear that someone, somewhere— for example, a family memberof a shooting victim—mayultimately use namesthat are disclosed as stepping stonesto find the officers and hurt themor their families.” Appellants’ evidence was no different than that offered in POST, supra, 42 Cal.4th at page 301, where the commission asserted that because of the “‘dangerous and demanding work’ performed by peaceofficers, releasing such information to the public creates a ‘potential for mischief.’” Rejecting evidence remarkably similarto the generalized statements by Lieutenant Cox aboutthe potential threat arising fromdisclosure, the POST Court stated: “[T]he Commission argued that persons who were hostile toward law enforcementofficers generally (though not toward a particular individual officer) might use the list of namesto locate peace officers’ addresses through other means (such as Internet resources) and harass them. It offered no evidence that such a scenario is more 23 than speculative, or eventhat it is feasible. Furthermore, by virtue of the visibility of their activities in the community, the identity of many officers 1s well knownorreadily obtainable. The Commission has not provided any convincing rationale for its assertion that disclosing a comprehensivelist of officers’ names and employing departments (with the exceptions noted above) would increase the threat to officer safety presented by those with a generalized hostility toward law enforcementofficers.” (d. at pp. 302-303, fns. omitted.) The Court concludedthat “‘[a] mere assertion of possible endangerment’ is insufficient to justify nondisclosure.” (/d. at p. 302; see also San Diego County Employees Retirement Assn. v. Superior Court (2011) 196 Cal.App.4th 1228, 1246 [rejecting argumentthat disclosing namesofretirees and their pension benefits threatened their security, in part because ““‘[i]t is a fact of modern life in this age of technology that names can be used to obtain other personal information from various sources, but we conclude that is not sufficient [undera state public records act] to prevent the disclosure of [public employee] names’”’}; 91 Ops.Cal:Atty.Gen. at *4 [because perceived harm from disclosing peace officer’s identity does not outweigh public interest in disclosure, “the names of peace officers involvedin critical incident in the performanceoftheir official duties are not generally exempt from disclosure under Government Code section 6254(c)’].) In the context of discussing section 6254, subdivision (c), the POST Court in a footnote distinguished Stone v. FBI (D.D.C. 1990) 727 F.Supp. 662, where the district court ruled the FBI met its burden to show a Freedomof Information Act request for the identity of officers who participated in the investigation of Robert F. Kennedy’s assassination “‘could reasonably be expected to constitute an unwarranted invasion of personal privacy’” under the exemption provided by Title 5 United States Code section 552(b)(7)(C). (POST, supra, 42 Cal.4th at p. 302, fn. 12.) In addition to concluding that the officers had a reasonable expectation of privacy concerning events that had happened over 20 yearsearlier, the Stone court further commented that “[w]hat could reasonably be expected to constitute an unwarranted invasion of an agent’s privacy is not that he or she is revealed as an FBI agent but that he or she is named as an FBI 24 agent who participated in the RFK investigation.” (Stone v. FBI, supra, at p. 665.) POST comunented: “By contrast, in the present case, the information sought mereiy would reveal that the named individuals had worked as peace officers; 1t would not reveal their involvement in anyparticular case.” (POST, supra, at p. 302, fn. 12.) Though this comment could be construed to suggest that disclosing an officer’s name in connection with a particular incident can constitute a basis for nondisclosure, we do not believe that the POST Court intendedto eliminate or minimize the burden onthe party seeking nondisclosure to makea particularized showing as to why disclosure would be an unwarranted invasion of personal privacy under section 6254, subdivision (c). We agree with thetrial court that appellants’ assertion of possible threats was inadequate under the exemption, absent any evidence indicating that the safety or effectiveness of any particular officer was threatened by the disclosure ofhis or her name. Appellants’ evidence likewise did not support application of the “catch-all” exemption provided by section 6255, which “‘“allows a government agency to withhold records if it can demonstrate that, on the facts of a particular case, the public interest served by withholding the records clearly outweighs the public interest served by disclosure” [Citation.] This catchall exemption ‘contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalanceon theside of confidentiality.’ [Citation.] “Where the publicinterest in disclosure of the records is not outweighed by the public interest in nondisclosure, courts will direct the governmentto disclose the requested information.’ [Citation.]” (County ofSanta Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1321.) The trial court reasoned that the deficiencies in appellants’ evidentiary showing were likewise relevant to the balancing required undersection 6255. Beyondreiterating their generalized safety concerns, appellants have failed to identify any public interest that would be served by nondisclosure. (See CBS, Inc. v. Block (1986) 42 Cal.3d 646, 652 [A mereassertion of possible endangerment does not ‘clearly outweigh’ the public interest in access to those records”); Sacramento County Employees’ Retirement System v. Superior Court, supra, 25 195 Cal.App.4th at p. 471 [Although unrealized threats must be considered in weighing the public interest in nondisclosure, speculative threats must not”].) Given the legitimate public interest in the conduct of individual officers (POST, supra, 42 Cal.4th at p. 300), appellants’ failure to offer any countervailing public interest in the nondisclosure of the names of officers involved in shootings precludes the application of section 6255. DISPOSITION The order denying the request for a preliminary injunction without prejudiceis affirmed. The Timesis entitled to its costs on appeal. CERTIFIED FOR PUBLICATION, , J. DOI TODD Weconcur: JP. dS. BOREN , J. CHAVEZ 26 PROOF OF SERVICE BY MAIL I am a resident of the county of Los Angeles; I am over the age of 18 and not a party to the within action; my business address is 333 West Ocean Boulevard, 1% Floor, Long Beach, CA 90802-4664. On March 15, 2012, I served the within: PETITION FOR REVIEW Onthe interested parties herein by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at Long Beach, California, addressed as follows: JamesE. Trott, Esq. 8840 Warner Avenue, Suite 101 Fountain Valley, CA 92708 Attorneysfor Plaintiffs and Appellants, Long Beach Police Officers Association Karlene W. Goller Los Angeles Times Communications, LLC. 202 WestFirst Street Los Angeles, CA 90012 Attorneysfor Real Party in Interest and Respondent, Los Angeles Times Communications, LLC Kelli L. Sager Alonzo Wickers IV Jeff Glasser Davis Wright Tremaine LLP 865 S. Figueroa Street, Suite 2400 Los Angeles, CA 90017-2566 Attorneysfor Real Party in Interest and Respondent, Los Angeles Times Communications, LLC Clerk of the Los Angeles Superior Court Attn: Hon. Judge Patrick Madden 415 W. Ocean Boulevard Long, Beach, CA 90802 Court of Appeal State of California Second Appellate District, Division 3 300 South Spring Street Second Floor, North tower Los Angeles, California 90013 I declare under penalty of perjury that the foregoing is true and correct. Executed on March [5, HOI? , at Long Beach, California. Barbara A. Gallagher a