Ww © E
D
ek,
SUPREME COURTOF THE STATE OF CALIFORNIA “S0G¢-—~——
LONG BEACH POLICE OFFICERS ASSOCIATION and DOE
OFFICERS1-150,
Plaintiffs and Appellants and Petitioners,
V.
CITY OF LONG BEACH,a municipal corporation, LONG BEACH
POLICE DEPARTMENT, JAMES MCDONNELL,ChiefofPolice,
Defendants and Appellants and Respondents,
LOS ANGELES TIMES COMMUNICATIONS LLC,
Intervenor-Real Partyin Interest and Respondent and Respondent.
~
“tndPETITION FOR REVIEW
James E. Trott
Larry J. Roberts
LawOffices of James E. Trott
8840 Warner Avenue, Suite 101
Fountain Valley, CA 92708
Telephone: (714) 596-8993
Attorneys for Plaintiffs and Appeilants ana Petitioners
LONG BEACHPOLICE OFFICERS ASSOCIATION
No.
SUPREME COURT OF THE STATE OF CALIFORNIA
LONG BEACH POLICE OFFICERS ASSOCIATION and DOE
OFFICERS 1-150,
Plaintiffs and Appellants and Petitioners,
V.
CITY OF LONG BEACH,a municipal corporation, LONG BEACH
POLICE DEPARTMENT, JAMES MCDONNELL,Chief of Police,
Defendants and Appellants and Respondents,
LOS ANGELES TIMES COMMUNICATIONSLLC,
Intervenor-Real Party in Interest and Respondent and Respondent.
PETITION FOR REVIEW
James E. Trott
Larry J. Roberts
Law Offices of James E. Trott
8840 Warner Avenue, Suite 101
Fountain Valley, CA 92708
Telephone: (714) 596-8995
Attorneys for Plaintiffs and Appellants and Petitioners
LONG BEACH POLICE OFFICERS ASSOCIATION
AND DOE OFFICERS1-150
TABLE OF CONTENTS
Subject Page
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii
QUESTIONS PRESENTED 1
WHY REVIEW SHOULD BE GRANTED 2
STATEMENT OF THE CASE 6
SUMMARY OF RELEVANT FACTS 6
PRIOR PROCEEDINGS 6
ARGUMENT 8
I. INTRODUCTION. 8
I.
UT.
IV.
THE NAMESOF PEACE OFFICERS INVOLVEDIN
SHOOTING INCIDENTS ARE CONFIDENTIAL AND
THEREFORE EXEMPT FROM COMPELLED
DISCLOSURE PURSUANT TO THE CPRA. 9
A. Confidentially Established. 9
B. A Rejoinder to the Court of Appeal. 12
THE BALANCE OF INTERESTS MUST BE STRUCK IN
FAVOR OF CONFIDENTIALITY OF THE NAMES OF
THE OFFICERS INVOLVED IN SHOOTINGS. 15
A. Confidentially Established. 15
B. A Rejoinder to the Court of Appeal. 19
CONCLUSION. 20
TABLE OF AUTHORITIES
CONSTITUTIONS
Constitution Page
Cal. Const. art. I, § 3(b)(1) 3
CASES
Case Page
City of Richmond v. Superior Court (S.F. Bay Gaurdian) 14
32 Cal. App. 4" 1430,
38 Cal. Rptr. 2d 632 (1995)
Comm’n on Peace Officer Standards & Training v. Superior Court 10
(L.A. Times Comme’ns LLC),
43 Cal. 4" 278,
165 P.3d 452,
64 Cal. Rptr. 3d 661 (2007)
Copley Press v. Superior Court (Cnty. of San Diego), 3, 10, 11, 13 - 15, 20
39 Cal. 4" 1272,
141 P.3d 288,
48 Cal. Rptr. 3d 183 (2006)
Dennis v. United States, 18
341 U.S. 494,
71S. Ct. 857 (1951)
Long Beach Police Officers Ass’n v. City of Long Beach, 7
No. B231245 (Cal. App. Feb. 7, 2012)
New York Times Co. v. Superior Court (Thomas), 3
52 Cal. App. 4" 97,
60 Cal. Rptr. 2d 410 (1997)
///
il
People v. Mendoza,
23 Cal. 4" 896,
4 P.3d 265,
98 Cal. Rptr. 2d 431 (2000)
Roberts v. City of Palmdale,
5 Cal. 4" 363,
853 P.2d 496,
20 Cal. Rptr. 2d 330 (1993)
Times Mirror Co. v. Superior Court (State),
53 Cal. 3d 1325,
813 P.2d 240,
283 Cal. Rptr. 893 (1991)
STATUTES
Statute
Cal. Gov’t Code § 6250 (West 2008)
Cal. Gov’t Code §§ 6250-6270 (West 2008 & Supp. 2011)
Cal. Gov’t Code § 6254(c) (West Supp. 2011)
Cal. Gov’t Code § 6254(e) (West Supp. 2011)
Cal. Gov’t Code § 6254(k) (West Supp. 2011)
Cal. Penal Code § 832.5 (West 2008)
Cal. Penal Code § 832.7 (West 2008)
Cal. Penal Code § 832.7(a) (West 2008)
Cal. Penal Code § 832.7(c) (West 2008)
Cal. Penal Code § 832.8 (West 2008)
ill
13
10
19
Page
9, 15,19
8,9, 10
10
8, 11 - 13
10, 11, 15
11, 13, 14
8, 10, 12
Cal. Penal Code § 832.8(a) (West 2008) 8, 12
Cal. Penal Code § 832.8(d) (West 2008) 12
RULES OF COURT
Rule Page
Cal. R. Ct. 8.500(b)(1) 3,4
iv
SUPREME COURT OF THE STATE OF CALIFORNIA
LONG BEACH POLICE OFFICERS ) No.
ASSOCIATION and DOE OFFICERSI- )
)
)
150,
Plaintiffs and Appellants and Petitioners,
V.
CITY OF LONG BEACH,a municipal
corporation, LONG BEACH POLICE
DEPARTMENT, JAMES
MCDONNELL,ChiefofPolice,
PETITION FOR REVIEW
)
)
)
)
)
)
)
)
)
Defendants and Appellants and )
Respondents, )
)
)
)
)
)
)
)
)
)
LOS ANGELES TIMES
COMMUNICATIONSLLC,
Intervenor-Real Party in Interest and
Respondent and Respondent. [2d Civil No. B231245;
L.A. County Superior Court
Case No. NC055491]
QUESTIONS PRESENTED
Is the nameofa peaceofficer involved in a shooting incident exempt
from disclosure pursuant to the California Public Records Act inasmuch as
such incidents are routinely investigated both administratively and
criminally?
Is the name ofa peace office involved in a shooting incident exempt
from disclosure pursuant to the California Public Records Act inasmuch as
the disclosure would constitute an unwarranted invasion of personal
privacy?
WHY REVIEW SHOULD BE GRANTED
Simply put, this case presents an important issue of law, namely, may
a law enforcement agency refuse to disclose the namesofpeaceofficers
involved in shooting incidents? For the tens of thousandsofpeace officers
in the State of California, the answer to that question is a subject of intense
interest and concern. The passionate belief among peaceofficers is that
release of this information impairs their ability to perform their jobs and
puts them andtheir families needlessly at risk. Although intensity of
concern cannot be objectively measured, Petitioners Long Beach Police
Officers Association and Doe Officers 1-150 (Petitioners) believe that to
the rank and file officers of this State the question is as important as any
question involving the rights ofpeace officers presented to this Court in
recent years. The Association brought this action (at no inconsiderable
financial risk of a crushing attorney’s fees award againstit should it be
unsuccessful) precisely because its members share the belief that the release
of the identities of officers involved in shooting incidents would be harmful
and wrong. NowPetitioners implore this court to settle that important
question. See Cal. R. Ct. 8.500(b)(1) (stating that review is warranted “to
settle . . . an important question of law’’).
At the sametime the question is important to the People of the State
and to its media. The “right of access to information concerning the
conduct of the people’s business”is enshrined in the Constitution, see Cal.
Const. art. I, § 3(b(1), and the Legislature likewise has declared that “access
to information concerning the conduct of the people’s businessis a
fundamental and necessary right of every person in this state”. Cal. Gov’t
Code § 6250 (West 2008). These policies are especially salient when the
subject is law enforcement. “In order to maintain trust in its police
department, the public must be kept fully informedoftheactivities ofits
peace officers.”” New York Times Co. v. Superior Court (Thomas), 52 Cal.
App. 4" 97, 104-05, 60 Cal. Rptr. 2d 410, 414 (1997), disapproved on
another point by Copley Press v. Superior Court (Cnty. of San Diego), 39
Cal. 4"" 1272, 1298, 141 P.3d 288, 305, 48 Cal. Rptr. 3d 183, 203 (2006).
G
o
‘Disclosureis all the more a matter of public interest when those officers
use deadly force and kill a suspect.” Id. at 105, 60 Cal. Rptr. 2d at 414.
Thus,there is a strong countervailing interest in disclosure of the
identities of peace officers involved in shootings. Should this interest carry
the day andthe identities of these officers prove not to be confidential, the
importance of the issue demandsthat this Court settle the entitlement of the
people to this information onceandforall.
Notonly is the question presented inherently important,it is
recurrent. The petition for review presented by the City of Long Beach(the
City) recounts several recent occasions in which this question arose, and no
doubt there are more unknownst to counsel. The decision of the Court of
Appealhereinis the first directly on point, butit likely is not to be thelast.
The issue will simmerandwill arise in other districts and divisions until
this Court settles it.
Finally, the diversity of opinion as to the answer to the question
arises from a tension, perhaps even an inconsistency, between two decisions
of this Court. As long as this Court fails to reconcile or explain the
conflicting language and outlook of these two opinions, the disagreement as
to which opinion governs will continue. Hence, review is necessary to
secure uniformity of decision,see rule 8.500(b)(1), as well as to settle an
important question of law.
The questions presented are thus highly important both in the
particular (the depth of concern with regard to the issue by the large
community ofpeace officers) and in the abstract(the constitutional and
statutory policies favoring disclosure). Accordingly, the questions presented
merit review by this Court.
Moreover, this action provides an excellent vehicle for such review.
The questions raised present pure issues of law, and the outcomeofthe case
clearly turns upon them. Therecordis entirely adequate for the purpose.
The arguments were fully presented, and the issues were preserved in the
Court of Appeal. Nothing would be gained, therefore, were this Court to
await relitigation of the issues here presented in other districts and divisions
of the Court of Appeal.
Atthe end ofthe day, then, this action presents important questions
of law that need settlement by this Court and an appropriate case for doing
so. Hence,this petition for review should be granted, and, for the reasons
outlined herein, the adverse judgment should be reversed.
///
///
///
STATEMENTOF THE CASE
SUMMARYOF RELEVANTFACTS!
The factual and procedural context of this action is quite simple.
Sometime in mid-December of 2010 a reporter employed by The Times,
Richard Winton, requested that the City disclose the namesofall officers
involved in a shooting occurring on 12 December 2010 and the namesofall
Long Beachpolice officers participating in officer involved shootings from
1 January 2005 to 11 December 2010. (See Decl. of Richard Winton para.
2, at 1; 1 C.T. 48.) The City informed the Association thatit intended to |
honor the request absent an order prohibiting disclosure. (See V. Compl.
para. 7, at 2; 1 C.T. 6.)
PRIOR PROCEEDINGS
Plaintiffs then brought an equitable action against the City of Long
Beach,its police department, and its Chief of Police to prevent the
threatened disclosure. (See id. para. 8, at 3; 1 C.T. 7.) A temporary
restraining orderto that effect was granted.” (See Min. Orderat 1 (Dec.30,
' The Court of Appeal also recounts the backgroundofthe case in
somewhat more detail. (See Slip Op.at 3-5.)
> Ultimately, The City chose not to oppose the action. (See Def’s
Mem.of Law at 1; 2 C.T. 137.)
2010) 1 C.T. 24.) The Timesthen intervened. (See Notice of Mot. & Mot.
to Intervene at 1; 1 C.T. 26.) Petitioners’ motion for a preliminary
injunction was denied. (See Order Re: OSC for Prelim. Inj. at 25; 2 C.T.
290.) Thereafter, a thirty day stay then was granted, (see Court Orderat 1-
2; 2 C.T. 300-01),) in order to permit a petition for a writ to preserve the
status quoto befiled.
Both Petitioners and The City sought interim relief. The Court of
Appealinitially ruled that the notice of appealfiled by Petitioners
automatically stayed the order denying their request for a mandatory
preliminary injunction. (See Order (Feb. 23, 2011).) Subsequently,the
Court of Appeal construed Petitioners’ petition for a writ ofmandate as a
petition for writ of supercedeas and granted it. (See Orderat [2] (Mar. 11,
2011).) A motion by The Times to dismiss the appeal or alternatively for
calendar preference was deniedin its entirety. (See Order (April 13,
2011).)
In a published opinion the Court of Appeal, SecondDistrict,
Division Two affirmed. (See Long Beach Police Officers Ass’n v. City of
Long Beach, No. B231245, slip op. at 6 (Cal. App. Feb. 7, 2012)
[hereinafter Slip Op.] (Ex. A hereto).) The Court concluded that the names
of officers involved in shootings are not records relating to personal data
made confidential by Penal Code section 832.8(a), (see Slip Op.at 14-17),
that the namesare not recordsrelating to employee advancement, appraisal,
or discipline, (see id. at 17-19), and that the namesare not recordsrelating
to complaints or investigation of complaints concerning an officer’s
performanceofhis duties, (see id. at 19-20). The Court further ruled that
the disclosure of the namesofofficers involved in shootings does not
constitute an unwarranted invasion of personal privacy that would justify
withholding them pursuant to Government Codesection 6254(e). (See Slip
Op.at 20-26.)
ARGUMENT
I. INTRODUCTION.
Although a request for information pursuantto the California
Public Records Act, Cal. Gov’t Code §§ 6250-6270 (West 2008 & Supp.
2011) (the CPRA) gavebirth to this action,it has but little to do with that
Act. Rather, the case turns on whether two exceptions to the Act apply.
First, are the statutes rendering peace officer records confidential on the
whole, Cal. Penal Code § 832.7 (West 2008) and Cal. Penal Code § 832.8
(West 2008), applicable to the namesofpeace officers involved in
shootings, thus bringing them within the ambit of section 6254(k) of the
Government Code,’ which exempts from disclosure records whose
disclosure is exempted or prohibited by federal or state law? Second,
would disclosure of the names “constitute an unwarranted invasion of
personal privacy”, thus exempting them from disclosure pursuant to section
6254(c) of the Government Code?* For the reasons explained herein, the
answers to both questions are affirmative.
Il. THE NAMESOF PEACE OFFICERS INVOLVEDIN
SHOOTING INCIDENTS ARE CONFIDENTIAL AND
THEREFORE EXEMPT FROM COMPELLED DISCLOSURE
PURSUANT TO THE CPRA.
A. Confidentiality Established.
Oneofthe moststraightforward exceptions to the disclosure
mandate of the CPRA incorporates other laws permitting or requiring
confidentiality. Namely, nothing in the CPRA “shall be construed to
require disclosure of . . . [rjecords|,] the disclosure of which is exempted
or prohibited pursuantto federal orstate law, including, but not limited to,
provisions of the Evidence Coderelating to privilege”. Cal. Gov't Code §
> Cal. Gov’t Code § 6254(k) (West Supp. 2011).
* Cal. Gov’t Code § 6254(c) (West Supp. 2011).
9
6254(k) (West Supp. 2011); see Roberts v. City of Palmdale, 5 Cal. 4" 363,
369-73, 853 P.2d 496, 499-501, 20 Cal. Rptr. 2d 330, 333-35 (1993)
(upholding a refusal to disclose grounded in the attorney client privilege).
Amongthe statutes thus incorporatedis section 832.7(a) of the Penal
Code,° which provides that peace officer records and information obtained
therefrom are confidential. Section 832.7(a) applies to two categories of
records: personnel records, meaning records maintained under an officer’s
name by his employer and containing personal data and employment
history, see Cal. Penal Code § 832.8 (West 2008), and recordsrelating to
the mandated investigation of complaints against an officer, see id. § 832.5.
Twocases decided by this Court Copley Press v. Superior Court
(Cnty. of San Diego), 39 Cal. 4" 1272, 141 P.3d 288, 48 Cal. Rptr. 3d 183
(2006), and Comm’n on Peace Officer Standards & Training v. Superior
Court (L.A. Times Comme’ns LLC), 43 Cal. 4" 278, 165 P.3d 452, 64 Cal.
Rptr. 3d 661 (2007) (POST), map the contours ofthe qualified privilege
these statutes create. The two cases are especially salient in that both
involved the disclosure of peace officers’ names. The first, Copley Press,
held that the identity of a deputy sheriff involved in a disciplinary matteris
confidential. See, 39 Cal. 4" at 1297, 141 P.3d at 304, 48 Cal. Rptr. 3d at
> Cal. Penal Code § 832.7(a) (West 2008).
10
202. The second, POST,held that the identities of peace officers qua peace
officers and the basic fact of their employmentare not confidential. See 42
Cal. 4" at 295, 165 P. 3d at 472, 64 Cal. Rptr. 3d at 673.
Copley Press held that the identity of a deputy involvedin a
disciplinary matter is confidential under section 832.7 of the Penal Code.
See 39 Cal. 4" at 1297, 141 P.3d at 304, 48 Cal. Rptr. 3d at 202. Noting
that the statute sanctions disclosure of specified information “but only ‘if
that information is in a form which doesnotidentify the individuals
involved’”, the Court concluded thatit is designed to protect inter alia the
identity of officers subject to complaints. Id. (quoting Cal. Penal Code §
832.7(c) (West 2008)). Further, the legislative history of the provision
confirmedthat it was intended to prohibit the disclosure of the identities of
the individuals involved in an incidentin order to protect the personal rights
of offices as well as citizens. See id. Given the statutory language and the
legislative history, the identity of a peace officer involved in a particular
incidentis clearly confidential. See id.
POST distinguished Copley Press, stating that that case had
determined that section 832.7(a) is designedto protect the identity of offices
subject to complaints. See 42 Cal. 4" at 298, 165 P.3d at 474, 64 Cal. Rptr.
3d at 676. While at least as to disciplinary matters a peace officer’s nameis
11
exempt from disclosure, see id., his name and the bare fact of his
employmentas a peaceofficeris not, see id. at 299, 165 P.3d at 474, 64
Cal. Rptr. 3d at 676.
The upshotis that “the identification of an individualasthe officer
involved in an incident that was the subject of a complaint or a disciplinary
investigation” is forbidden. Id. Inasmuch asall officer involved shootings
are investigated both administratively and criminally, (See V. Compl. para.
15, at 6; 1 C.T. 10), the identity of the officer involved in the incidentis
beyond cavil confidential.
B. A Rejoinder to the Court of Appeal.
The Court of Appeal ruled otherwise, declaring that sections 832.7
and 832.8 of the Penal code do not “protect the confidentiality of officer
names whenthose namesare untethered to one of the specified components
of the officer’s personnel file”. (Slip. Op. at 14.) The Court of Appeal then
concludedthat the nameofan officer involved in a shooting incident does
not constitute “personal data” within the meaning of section 832.8(a) of the
Penal Code,(see Slip. Op. at 17), that the nameis not protected by section
832.8(d) of the Penal Code, which exempts files relating to employee
advancement, appraisal, or discipline from disclosure, (see, Slip. Op. at 18-
19), and that the nameis not protected by section 838.8(c) of the Penal
12
Code, which does not encompassthe nameofan officer subject to an
internal investigation that is unrelated to a citizen complaint, (see Slip. Op.
at 19).
Whatever the merits of the crabbed reading that the Court of Appeal
affords section 838.8, the end result makes no sense. The nameofan
officer subject to a citizen complaintarising from a shooting is exempt from
disclosure, but the name ofan officer subject to an administrative complaint
arising from the same shooting is not. The oneis “tethered”to one or more
specified componentsof an officer’s personnelfile, but the otheris not.
But the two complaints are in substance identical. Such a result truly merits
the epithet absurd. See People v. Mendoza, 23 Cal. 4" 896, 908, 4 P.3d
265, 274, 98 Cal. Rptr. 2d 431, 441 (2000) ({“This Court] must . . . avoid
a construction that would produce absurd consequences, which[it]
presume[s] the Legislature did not intend.”).
This outcome overlooks the reasoning of Copley Press. There, this
Court declared that the Court of Appeal “erred in finding that [the deputy’s
identity] is not confidential under section 832.7". 39 Cal. 4" at 1297, 141
P.3d at 304, 48 Cal. Rptr. 2d at 202. The language ofsection 832.7(c)
limiting the information that may be disclosed pursuant to that provision
“demonstrates that section 832.7, subdivision (a), is designed to protect,
13
among other things, ‘the identity of officers’ subject to complaints”. Id.
(quoting City of Richmondv. Superior Court (S.F. Bay Gaurdian), 32 Cal.
App. 4" 1430, 1440 n.3, 38 Cal. Rptr. 2d 632, 638 n.3 (1995)). “The
legislative history of [section 832.7(c)] confirms the Legislature’s intent to
‘prohibit any information identifying the individuals involved from being
released, in an effort to protect the personalrights of both citizens and
officers’”. Id. (quoting legislative history). “Given the statutory language
and the legislative history,” the nameof an officer involvedin a critical
incidentis immune from compelled disclosure. See 39 Cal. 4" at 1297, 141
P.3d at 304, 48 Cal. Rptr. 2d at 202.
POST is not to the contrary. POST upheld compelled disclosure of
peace “officers’ identities as such”, see 42 Cal. 4 at 298, 165 P.3d at 474,
64 Cal. Rptr. 3d at 675, or, otherwise stated “the basic fact of their
employment, see id. at 295, 165 P.3d at 472, 64 Cal. Rptr. 4" at 673.
POST,unlike Copley Press, did not “involve the identification of an
individualas the officer involved in an incident that was the subject of a
complaint or disciplinary investigation”. Id. at 299, 165 P.3d at 474, 64
Cal. Rptr. 3d at 676.
Asthe Court of Appeal concedes, (see Slip. Op.17 & n.9) at all
officer involved shootings are subject to a disciplinary investigation. And
14
Copley Press holds that Penal Code section 832.7(a) renders the identity of
an officer who was involved in a shooting confidential. Ergo, because the
namesofthe officers involved in shootings are confidential, they are
immune from disclosure.
Il. THE BALANCE OF INTERESTS MUST BE STRUCKIN
FAVOR OF CONFIDENTIALITY OF THE NAMES OF
THE OFFICERS INVOLVED IN SHOOTINGS.
A. Confidentiality Established.
Even if the namesofpeace officers involved in shootings are not
within the ambit of the peace officer privilege statutes and therefore exempt
from disclosure, they are nevertheless exempt pursuant to section 6254(c) of
the CPRA.That section provides that “[p]ersonnel, medical, or similarfiles,
the disclosure of which would constitute an unwarranted invasion of
personal privacy” are exempt from disclosure. Id. Here, the invasion of
personal privacy that the Times seeks is extremely unwarranted, and the
exemption therefore applies.
Section 6254(c) requires this Court “to balance the privacy interests
of peace officers in the information at issue against the public interest in
disclosure in order to determine whether any invasion of personal privacy is
15
unwarranted”. POST, 42 Cal. 4th at 299, 165 P.3d at 475, 64 Cal. Rptr. 3d
at 676. Admittedly POSTstruck that balance in favor of disclosure of the
names of peace officers as a general matter. See id. at 303, 165 P.3d at 477,
64 Cal. Rptr. 3d at 679. But POST considered “the privacy and safety
interests of peace officers in general”, id., not as here the heightened safety
concerns officers who have been involved in shootings. The balance must
be struck differently with regard to this subgroup.
“The safety ofpeace officer and their families is most certainly a
legitimate concern... .” Id. at 302, 165 P.3d at 476, 64 Cal. Rptr. 3d at
678. But ‘“‘[a] mere assertion of possible endangerment’is insufficient to
justify nondisclosure”. Id. (quoting CBS,Inc., 42 Cal. 3d at 652, 725 P.3d
at 474, 230 Cal Rptr. at 366). The risk posed by the disclosure must be
shownto be “more than speculative”. Id. at 302, 165 P.3d at 477, 64 Cal.
Rptr. 3d at 679.
Here, that burden is met.
A numberofofficer involved shootings
involve gang membersor violent criminals.It is
commonfor such persons to reoffend and
continue their violent behavior. Gangs
constitute a criminal terrorist organization and
makea living creating fear and terror in
neighborhoods across America. Whenanact of
violence occurs between two gangs,it’s
commonfor the gang whoattackedto retaliate
againstthe attacker at a later date.
16
Gang Members[sic] view law
enforcementofficers as an opposing force that
prevents them from conducting their criminal
activity. When an officer is involved in a
shooting with a gang member,it is not
uncommon for the gangto retaliate against law
enforcementofficers. The departmentis
cognizantofthis threat to officer safety and is
committed to protecting the safety of its police
officers.
Since late 2007, the Long Beach Police
Departmenthas issued eight Officer Safety
Bulletins to the department aboutpotential
retaliation/threats against officers, two ofwhich
were directly related to shootings involving
police officers. As recently as January 10, 2011,
the department wasnotified of graffiti at 5100
Appian Waythat was approximately 4 feet high
and 6 inches long which read “Strike Kill a
Cop”. The department immediately issued an
officer safety memorandum informing officers
of the death threat graffiti. The graffiti threat is
currently under investigation and detectives will
try and determineifthere is any connection to
recent enforcementactivities, including officer
involved shootings.
Today, in the age ofthe internet,
knowing an individual’s name can be the
gateway to a world of information. Public
documents are readily accessible online and can
provide anyone with the homeaddress of an
individual, including a police officer. The
addressof a police officer in the hands ofa
gang member,violent offender, or angry friend,
relative, or associate of a person who wasshot
by a police officer is of great concern for the
personal safety of both the officer and their
family. Therefore the Long Beach Police
17
-Departmentinsists on protecting the identity of
its officers, when those officers are involved in
critical incidents, including shootings, in order
to ensure their safety and the safety oftheir
families.
(Decl. of Lt. Lloyd [Cox] paras. 8 -11, at iti-iv; 2 C.T. 243-44.)
Surely, then, the threat to officers involved in shootingsis real, not
speculative. But the analysis should not stop with just an evaluation of the
severity of threat. All such threats by their nature will be somewhat
vague—killers do not usually announcetheir intentions in advance. Butthe
vaguenessofthe threatis offset by the nature of the interest at stake: life
itself. If there is even a small chancethat the disclosure of the name of an
officer involved in a shooting will lead to or facilitate retaliation against the
officer, then the disclosure should be deemed an unwarranted invasion of
the officer’s privacy. Cf. Dennis v. United States, 341 U.S. 494, 510, 71S.
Ct. 857, 868 (1951) (plurality opinion) (stating that the test of the First
Amendmentis whether the gravity of the evil, discounted by its
improbability, justifies the invasion of free speech).
Ofcourse, the privacy interest of the officers must be balanced
against the public interest in disclosure. See POST, 42 Cal. 4th at 299, 165
P.3d at 475, 64 Cal. Rptr. 3d at 676. As a general matter that interest is
substantial. See id. But the questionis not the gravity of the interest in
18
general, but rather to what degree the public interest is incrementally served
by disclosure of the namesofofficers involved in shootings in addition to
reports regarding the shootings themselves. (See Mem.ofLaw in Reply to
Opp’n at 2 & n.2; 2 C.T. 247 (stating that officers would not object to
disclosure of such reports provided their names were redacted). The answer
is not much.
At the end of the day, then, Petitioners’ privacy interests clearly
outweigh any public interest in disclosure of their names. Hence, the names
are exempt from disclosure pursuant to section 6254(c).
B. A Rejoinder to the Court of Appeal.
The Court ofAppeal ruled otherwise, declaring that Plaintiffs’
assertions concerning possible threats were inadequate under the
exemption. (See Slip Op. at 25.) But this Court has determined that
disclosure of the Governor’s schedule wasnot required precisely because
that information could lead to a threat to his safety. See Times Mirror Co.
v. Superior Court (State), 53 Cal. 3d 1325, 1346, 813 P.2d 240, 253, 283
Cal. Rptr. 893, 906 (1991). Whenthelives of our public officials and our
peace officers are at stake, could is good enough.
The additional risk to the officers involved in shootings from
disclosure of their names may be acceptable to the Court of Appeal butit
19
should not be to this Court. Plaintiffs should not be required to prove that
the threat already has maturedin order to prevent the harm inthefirst place.
An assassination attempt would provide the concrete and specific evidence
that The Times demands, butit should not be required. Enoughsaid!
IV. CONCLUSION.
The opinion of the Court of Appeal leaves peace officers involved in
shootings out in the cold, exposed to the vagaries of public opinion
regarding matters that the Legislature has for good reason has declared
should remain confidential, see Copley Press, 39 Cal. 4 at 1298, 141 P.3d
at 305, 46 Cal. Rptr. 2d at 203, and to the dangers that accompanynotoriety.
Andfor the reasons explained herein, that result rests upon an erroneous
reading of the relevant statutes and this Court’s opinion. Accordingly,this
///
///
///
//1
///
///
[fi]
20
Court should grantthis petition for review (as well as the petition for review
filed by the City of Long Beach) and redecide the issues presented herein.
Dated: 17 March 2012
Respectfully submitted,
By:Jani\hebe
Larty J. Roberts
James E. Trott
Larry J. Roberts
Law Offices of James E. Trott
Attorneys for Plaintiffs and Appellants
and Petitioners
21
CERTIFICATE OF COMPLIANCE
WITH APPELLATE RULE8.204(b)(2)(3)(4)
Petitioners LONG BEACH POLICE OFFICERS ASSOCIATION
and DOES1-150 certify that their brief is in a proportionately spaced type
face (Times New Roman)of13 point, that it is double spaced, andthatit
contains 4,280 words.
Dated: 17 March 2012
pyLae}Koberdts>
cLarry J.Roberts
James E. Trott
Larry J. Roberts
Law Offices of James E. Trott
Attorneys for Plaintiffs and Appellants
and Petitioners
EXHIBIT “A”
Filed 2/7/12
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATEDISTRICT
DIVISION TWO
LONG BEACHPOLICE OFFICERS ASSOCIATION, B231245
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. NC055491)
V.
CITY OF LONG BEACHetal.,
Defendants and Appellants;
LOS ANGELES TIMES COMMUNICATIONS LLC,
Real Party in Interest and Respondent.
APPEALfrom an 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 Beach Police 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.
* KOK KK OK
Real party in interest and respondent Los Angeles Times Communications LLC
(Times) made a request underthe 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 Beach forthe preceding five years. Plaintiff and
appellant the Long Beach Police Officers Association (LBPOA)broughtan action
against defendants and appellants the City of Long Beach, the Long Beach Police
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’srequest for an injunction.
Weaffirm. Thetrial court properly ruled that officer namesare not rendered
confidential by any of the statutory exemptions contained in the CPRA.
1 Unless otherwise indicated, all further statutory citations are to the Government
Code.
FACTUAL AND PROCEDURAL BACKGROUND
On December12, 2010, Long Beach police officers shot and killed Douglas
Zerby, an intoxicated, unarmed 35-year-old man whowascarrying a garden hose nozzle
that officers mistook for a gun. Following the shooting, Times reporter Richard Winton
made a CPRA requestto the City seeking “[t]he names of Long Beachpoliceofficers
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 andits 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 findingsresulting in an internal affairs investigation. He expressed safety
concerns about releasing the names ofshooting 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 which the Internetallows an
individual to discover personal information about another and opined that “[t]he best way
to keep officers safe from these unknown people who maytry to bring harm is to notlet
them know which officer was involved.”
Following a December 30, 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,the trial court directed the LBPOAto
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 aligneditself with the LBPOA. In support of the City’s
position, Long Beach Police Department Lieutenant Lloyd Cox averred that department
3
policy was notto release the namesofofficers involved in an officer-involved shooting
because those officers becomethe 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. Heindicated that, since late 2007, the police department had
issued eight officer safety bulletins about potential threats or retaliation againstofficers,
two of whichrelated to officer-involved shootings. Noting that knowing someone’s
name can be the gateway to a world of information about him or her throughtheInternet,
Lieutenant Cox declared that “the Long Beach Police Departmentinsists on protecting
the identity of its officers, when those officers are involvedin critical incidents, including
shootings, in order to ensure their safety and the safety of their families.”
Following a January 18, 2011 hearing,thetrial court issued an order granting the
Times’s request to intervene and to dissolve the temporary restraining order, and denying
without prejudice the LBPOA’s preliminary injunction request. Aspart 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 thefirst requisite element of preliminary injunctiverelief, thetrial
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 LBPOA or
the City established the names were exempt from disclosure under a statutory exception.
The trial 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 werenot protected asa part of a police officer’s
personnel record (§ 6254, subd. (k); Pen. Code, §§ 832.7 & 837.8). Nor did thetrial
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,thetrial court ruled that neither
the LBPOA northe City had demonstrated that any officer waslikely to suffer harmful
consequences asa 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 reasonedthat the present balance weighed in favorof disclosure but,
depending on future evidentiary showing, could shift with respect to the name ofa
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 LBPOAsimultaneously filed a notice of appeal
from thetrial court’s order. We issued an order providing that the trial 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 ofofficer
names. They also contendthatthe trial court engaged in an improperbalancing,failing
to accord due weight to 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 membersofthe public access to information in the
possession of public agencies. [Citation.]’ [Citation.]” (Copley Press, Inc. v. Superior
Court (2006) 39 Cal.4th 1272, 1281 (Copley Press).) Consistent with this purpose, the
Legislature declared that “access to information concerning the conductofthe people’s
business is a fundamental and necessary right of every personinthis state.” (§ 6250.)
Since 2004, the California Constitution has confirmedthe principle: “The people have
the right of access to information concerning the conductofthe 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 vy. 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).)
Butthe right of access to public records under the CPRA has never been absolute.
(Copley Press, supra, 39 Cal.4th at p. 1282.) In section 6250, the Legislature declared it
was “‘mindfulof 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 nothingin 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 LBPOA lacks standing
to bring this action. Currently nothingin the statutory schemeprohibits a third party or
other public agency whoseinterests 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 constitutional or statutory exception to 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 conductof the public’s business prepared, owned, used, or
retained by anystate or local agency regardless of physical form or characteristics.’
(§ 6252, subd. (e).) According to the Legislature, the definition of public records “‘is
intended to cover every conceivable kind of record that is involved in the governmental
process and will pertain to any new form of record-keeping instrumentasit is developed.
Only purely personal information unrelated to “the conductofthe public’s business”
could be considered exemptfrom 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 from disclosure
numerous,specifically defined categories of records.4 Pertinent here, section 6254,
subdivision (c) exempts from disclosure “[p]ersonnel, medical, or similarfiles, the
disclosure of which would constitute an unwarranted invasion of personal privacy”; and
subdivision (k) exempts “[rJecords, the disclosure of which is exempted or prohibited
pursuantto federalorstate 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 thereby created,
regardless of the mannerin whichthe record has been stored.” (§ 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 exempt records, 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 “[pJeace officer or custodial
officer personnel records and records maintained by anystate or local agency pursuantto
Section 832.5, or information obtained from these records,” except by discovery pursuant
to Evidence Code sections 1043 and 1046.® Penal Code section 832.8 defines “personnel
records” as used in Penal Code section 832.7 to mean “any file maintained underthat
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 employmenthistory, home addresses, or similar information. [{]
5 Appellants do not claim that the requested information should be withheld under a
separate statutory exemption, section 6254, subdivision (f), which exemptsa limited
category of records of complaints or investigations conductedby local law enforcement
agency, but excludes from the exemption the namesof persons involved unlessthe
disclosure would endangerthe person’s safety or the completion of the investigation.
6 Again, appellants do not contendthat 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 mandatesthat
“Tejach department or agencyin 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) Medicalhistory. [9] (c) Election of employee benefits. [§] (d) Employee
advancement, appraisal, or discipline. [§] (e¢) Complaints, or investigations of
complaints, concerning an event or transaction in which he or she participated, or which
he or she perceived, and pertaining to the manner in whichhe or she performedhisor 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 outweighsthe 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,“[fJactual findings madeby thetrial court will be
upheld if based on substantial evidence. But the interpretation of the [CPRA], andits
application to undisputed facts, present questionsof law that are subject to de novo
appellate review. (CBS Broadcasting Inc. v. 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.)
II. The LBPOA Did Not MeetIts Burden to Show That Officer Names Are
Exempt from Disclosure Under the CPRA.
Thetrial court concluded that the LBPOAand the City failed to show that 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 applyingit to information aboutofficers, including their
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
DivisionSix of this district held that the CPRA required disclosure of the names of
officers whofired shots at a specific victim. There, copies of an internal investigative
report of the shooting were placed in the officers’ personalfiles, and the appellate court
rejected the argumentthat the officers’ names were exemptfrom disclosure as part of
those files, reasoning that what was sought “are simply the namesofofficers whofired
their weapons while engagedin the performanceoftheir 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 names as havingfired their weaponsin theline 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 commissionrecordsrelating to a
deputy sheriff's administrative appealof a disciplinary matter, where the information
sought included “the deputy’s name andall documents, evidence, and audiotapesfrom
the appeal.” (/d. at pp. 1279, 1280.) The Court concluded that the disciplinary appeal
records qualified under Penal Codesection 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 otherthings,
‘the identity of officers’ subject to complaints. [Citations.]” (Copley Press, supra, at
p. 1297.) In the context ofthis conclusion, the Court criticized the broad and unqualified
declaration in New York Times, supra, 52 Cal.App.4th at page 101 “that *[u]nder [Penal
Code] sections 832.7 and $32.8, 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 asit
applies to disciplinary matters like the one at issue here. Thus, we disapprove New York
TimesCo. v. Superior Court, supra, 52 Cal.App.4th 97, to the extent it is inconsistent
with the preceding discussion, and we reject Copley’s reliance on that decision.” (Copley
Press, supra, 39 Cal.4th at p. 1298.)
Oneyearlater, 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 included in 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 concludethat
type of information constituted componentsof 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 informationis containedin a file that also includesthe 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 individualas a peace
officer, unconnected to any of the informationit defined as part of a personnelrecord,
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 sought did “not involve the identification of an individualastheofficer
involved in an incident that was the subject of a complaintor disciplinary investigation.
11
The officers’ names, employing departments, and dates of employment were not sought
in conjunction with any of the personal orsensitive information that the statute seeks to
protect.” (POST, supra, at p. 299.) Finally, the Court concluded that “*‘[a] mere assertion
of possible endangerment’”to officers and their families wasinsufficientto 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 which synthesized
the foregoing cases to “concludethat, in response to a request made under the [CPRA]
for the namesofpeace officers involvedin a critical incident, such as one in whichlethal
force was used, a law enforcement agency must disclose those namesunless, 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
weight”and “‘are persuasive “since the Legislature is presumed to be cognizant of that
construction of the statute”’”]; see also International Federation, supra, 42 Cal.4th at
Gee
p. 331 [relying on three Attorney Generalopinions for 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 Timesfell within any of the
statutory exemptions. Weshare the view that relevant case law leads to the inexorable
conclusion that the namesofofficers involved in officer-involved shootings overa five-
year period must be disclosed under the CPRA,absent any particularized showingofthe
interests served by nondisclosure. Notwithstanding POST, appellants maintain that the
statutory scheme allows for nondisclosure whenofficers are linkedto a critical incident
and internally investigated, and that the privacy interests of officers involved in a
12
shooting must be deemed paramountdue to the potential threat to their safety stemming
from disclosure. Accordingly, we examine each of the claimed exemptionsin 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 (k), the trial court ruled:
“Because the information sought doesnot fall 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 names ofofficers involvedin officer-involved
shootings are protected from disclosure by Penal Code sections 832.7 and 832.8 aspart of
a peaceofficer 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 court first looks to the statutory words
themselves, giving to the languageits usual and ordinary import. The court construes
statutory words in context, keeping in mindthe 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 consider portionsof a statute
in the context of the entire statute and the statutory scheme of whichit is a part, giving
significance to every word, phrase, sentence, and part of an act in pursuance ofthe
legislative purpose.’ [Citation.] Atall times, ‘[oJur foremost task remainsascertainment
of the legislative intent, including consideration of “the entire scheme of law of whichit
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 Code section 832.7 provides for the confidentiality of “[p]eace officer or
custodial officer personnel records” and “information obtained from these records . . . .”
In turn, Penal Code section 832.8 defines peace officer personnel records as “anyfile
maintained underthat individual’s namebyhis or her employing agency and containing
recordsrelating to any of” a list of enumerated categories of information. The
Legislature enacted these statutes to codify the procedures for discovery of peace officer
13
personnelfiles; those discovery motions had cometo be knownas “Pitchess motions”
following the Supreme Court’s decision in Pitchess, supra, 11 Cal.3d 531. (See
generally Zanonev. City of Whittier (2008) 162 Cal.App.4th 174, 186 & fn. 13, 187.)
The legislative purpose of the statutes was to “provide retention of relevant records while
imposing limitations upon their discovery and dissemination,” and to protect peace
officer personnel records from “random discovery by defendants asserting self-defense to
charges ofcriminal assault upona 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 information listed in
section 832.8.” Consequently, “the information sought by the Timesis not protected
from disclosure by section 832.7 unless the request encompassesoneofthe types of
information enumerated in section 832.8.” (POST, supra, at p. 294.)
1. Personal data.
Penal Code section 832.8, subdivision (a) describes records relating 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 determinedthat 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 Codeprovisions. (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 information that is not generally knownto persons with
whom officers 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.) POSTfound intentional the Legislature’s omission of officer names
from the 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]ersonal data’ under subdivision (a) of section 832.8.” (POST, supra, at p. 298
[citing statutes specifying an individual’s nameas personalor confidential information];
accord, Sacramento County Employees’ Retirement System v. Superior Court (2011) 195
Cal.App.4th 440, 466.) POST concluded that absent“a more specific indicationin the
statute, we hesitate to concludethat the Legislature intended to classify the identity of a
public official whoseactivities 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 Codesection 832.8,
subdivision(a), explaining: “The fact that an officer’s nameis linked to critical event,
such as a shooting, is not ‘personal’ to the officer in the same way that things like marital
status, education, employmenthistory, and thelike 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
otherthings, ‘the identity of officers’ subject to complaints. [Citations.]” (/d. at
p. 1297.) But the Supreme Court later explained that Copley Press should not be
construedto protect the identity of officers whoare not subject to a complaintor
disciplinary action. “Our decision in Copley Press, Inc. v. Superior Court, supra, 39
Cal.4th 1272, does not support the proposition thatlists of namesof peaceofficers,
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
POSTCourt continued: “Unlike Copley Press, Inc. v. Superior Court, supra, 39 Cal.4th
1272, ... the case before us doesnot involve the identification of an individual as the
officer involved in an incident that was the subject of a complaintor disciplinary
investigation. Theofficers’ names, employing departments, and dates of employment
were not sought in conjunction with any of the personal or 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: “We disagreed with the statementin
[New York Times] that ‘“{u]nder Penal Code sections 832.7 and 832.8, an individual’s
nameis not exempt from disclosure,” but our disagreement was qualified: we concluded
that this broad assertion was incorrect ‘at least insofaras 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
mustbe kept fully informedofthe 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 requestfor 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 medicalhistory from
disclosure].) The City’s example ignoresthe distinction between information, such as
medical history, specified in Penal Code section 832.8 and therefore protected from
disclosure, and information such as involvementin a shootingorothercritical incident
that is not. (See POST, supra, 42 Cal.4th at p. 294.)
16
the continued viability of New 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 ofan 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 Code section 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 against the officer, and argues that 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.?
Asthetrial 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 shootingsaffected the officers’
performanceevaluations.” This observation is consistent with the Supreme Court’s
conclusion in POST, supra, 42 Cal.4th at page 295, that Penal Codesection 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 LBPOAnortheCity provided a copy of the City’s internalpolicies to
the trial court. Accordingly, we deny the City’s request on appealfor judicial notice of a
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, “[r]eviewing 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 thetrial court].) Nonetheless, Lieutenant Cox identified the
relevantpolicy in his declaration, averring that officers involved in a shooting are subject
to an administrative and/or criminal investigation for their conduct. In view ofthis
evidence, we consider whetheran officer’s involvementin an internal investigation
serves to exempt the officer’s name from disclosure withoutreference 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-——candictate the entity’s disclosure obligations: “Whether or not a particular
type of record is exempt should not depend uponthe peculiar practice of the government
entity at issue—otherwise, an agency could transform public recordsinto private ones
simply by refusing to disclose them overa period oftime.”
Likewise, appellants cannot transform an officer’s identity into confidential
information by asserting that the officer’s involvementin a shooting hasresulted in an
appraisal or discipline. The Supreme Court has repeatedly stated that the protection
afforded by Penal Codesection 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 intendedthat a public
agency be able to shield information from public disclosure simply by placing it in 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 from public disclosure, regardless of its nature, simply by placing it ina
file labelled ‘investigatory’”].) Because the disclosure of the nameof an officer who was
involved in a shooting doesnot reveal any information about the officer’s advancement,
appraisalor 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 Code sections 832.7 and 832.8, the
Court concluded that the disclosure of his name wassimilarly 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
from norresults 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 seek to rely on the protection afforded by Penal Code
section 832.8, subdivision (e) for “[c]omplaints, or investigations of complaints,
concerning an event ortransaction in which [anofficer] participated, or which he or she
perceived,and pertaining to the manner in whichheor she performed his or her duties.”
The trial court ruled the subdivision was inapplicable because “[t]he Times is not seeking
information regarding complaints made about the conductofofficers 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 employthe terms “complaint” and “investigation” virtually
interchangeably, ignoring that the reference to investigations in Penal Codesection 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
recordspertaining 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 schemereveals the distinction is unintended. ... [W]e
presumethe 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 encompassthe nameofan officer subject to an
internal investigation that is unrelated to a complaint.
Thelegislative history of Penal Codesection 832.8 confirms that the Legislature
meant whatit 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 scheme hereat issue wasthe type of record at issue
in Pitchess—recordsof 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 addressthe situation where a defendant charged with assault
against a police officer seeks to assert self-defense, and “defense attorneys have
requested discovery ofthe victim-officer’s personnel files to determineif the officer has
had complaints for use of excessive force, in order to demonstrate thatthe officer has a
propensity for violent behavior”].) Given the express legislative purpose to assure the
confidentiality of citizen complaint records by providing specific proceduresfor their
discovery, we decline to extendthe protection in Penal Code section 832.8,
subdivision (e) to exempt from disclosure the nameof an officer involved in a shooting
wherenocitizen complaint is involved.
B. Officer Names Are Not Exempt Under Section 6254, Subdivision (c) or
Section 6255.
The trial court further ruled that the disclosure of officer names did not constitute
“an unwarranted invasion of personal privacy”under section 6254, subdivision (c).!9 It
relied on POST, supra, 42 Cal.4th at pages 300 to 303, to conclude thatan 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 ofofficer names, “[w]e
assumefor purposes ofanalysis that the records at issue may be characterized as
‘[plersonnel. . . or similar files’” within the meaning of section 6254, subdivision (c).
(POST, supra, 42 Cal.4th at p. 299.)
" Although section 6254, subdivision (c) does not expressly employ a balancingtest,
courts have construedthe 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 competing interests,. . . the public’s
20
acknowledging that an officer could demonstrate that privacy interests predominate—for
example, by showinga particularized threat to his or her safety—thetrial 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 conductofpeace officers is substantial: “Peace officers
‘hold one of the most powerful positions in our society; our dependence on them is 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.) Forthese reasons, the POST Court concludedthat the public has
a legitimate interest not only in the conduct of individual officers, but also in the balance
of the information sought concerning employing departments and hiring and termination
dates; such information would enable the Timesto trace officer movement among
agencies and identify potentially inappropriate employment practices. (/d. at p. 300.)
Aspart ofits 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 maintaintrust in its police department, the
public must be kept fully informedofthe activities of its peace officers.” (POST, supra,
42 Cal.4th at p. 297.) Significantly, the New York Times court reasonedthat there is a
heightened public interest in disclosure when an officer 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 information at issue against the public interest in
disclosure, in order to determine whether any invasion of personal privacyis
‘unwarranted’”]; New York Times, supra, 52 Cal.App.4th at p. 104 [“Section 6254,
subdivision (c), allows for a weighingof interests by the trial court”].)
21
“Disclosure is all the more a matterof public interest when those officers use deadly
force and kill a suspect.” (New York Times, supra, at p. 105.)
Anofficer’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: “Wefind no
well-established social norm that recognizes a needto protect the identity of all peace
officers. Peace officers operate in the public realm on daily basis, and identify
themselves to the members of the public with whom they deal. Indeed, uniformed peace
officers are required to wear a badge or nameplate with the officer’s nameor
identification number. [Citation.]” (/d. at p. 301; accord, New York Times, supra, 52
Cal.App.4th at p. 104 [“the public interest here outweighsthe right of the deputiesto
have their names withheld”]; 91 Ops.Cal.Atty.Gen. at *4 [the public has a “legitimate
interest in the identity and conduct ofpeaceofficers” 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 outweighthe public interest in disclosure. (/nternational Federation, supra, 42
Cal.4th at p. 337.) For example, an undercoverofficer might be able to show thatthe
release of his or her identity would threaten the officer’s safety and effectiveness.
(POST, supra, 42 Cal.4th at p. 303; see also International Federation, supra,at p. 337
(“If an officer’s anonymity is 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 withthis authority, the trial court denied appellants’
preliminary injunction request without prejudice and permitted either the LBPOAorthe
City to make an evidentiary showingthat the disclosureof a particular officer’s identity
would jeopardize that officer’s safety or efficacy.
22
Appellants contendthatthe 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 membersorviolent criminals who commonlyreoffend andretaliate. Describing
specific instances ofthreats against officers, Lieutenant Cox averred: “Since late 2007,
the Long Beach Police Department hasissued eight Officer Safety Bulletins to the
department about potential retaliation/threats against officers, two of which weredirectly
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 and6 inches long whichread ‘Strike Kill a Cop.’ The department immediately
issued an officer safety memorandum informingofficers of the death threatgraffiti. The
graffiti threat is currently underinvestigation and detectives will try and determineif
there is any connection to recent enforcement activities, including officer involved
shootings.” Lieutenant Cox concluded by outlining the number of waysthat the Internet
enables one to locate the home address of another whose name is known.
Thetrial court appropriately characterized this evidenceas establishing nothing
“beyond the generalized and speculative invocation of fear that someone, somewhere—
for example, a family member ofa shooting victim—mayultimately use namesthat are
disclosed as stepping stonesto find the officers and hurt them or their families.”
Appellants’ evidence wasno 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 informationto the public creates a
‘potential for mischief.” Rejecting evidence remarkably similar to the generalized
statements by Lieutenant Cox about the potential threat arising from disclosure, the POST
Court stated: “[T]he Commission argued that persons who were hostile toward law
enforcementofficers generally (though not toward a particular individualofficer) might
use thelist 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 eventhatit is feasible. Furthermore, by virtue of the visibility of
their activities in the community, the identity of many officers is well knownorreadily
obtainable. The Commission has not provided any convincing rationale forits assertion
that disclosing a comprehensivelist of officers’ names and employing departments (with
the exceptions noted above) wouldincrease the threatto 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 technologythat
names can be used to obtain other personal information from various sources, but we
concludethat is not sufficient [under a 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 a 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 metits burden to show a Freedom of 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 atp. 302, fn. 12.) In addition to
concluding that the officers had a reasonable expectation of privacy concerning events
that had happened over20 yearsearlier, the Stone court further commentedthat “[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
commented: “By contrast, in the present case, the information sought merely would
reveal that the named individuals had worked as peaceofficers; it would not revealtheir
involvementin any particular case.” (POST, supra,at p. 302, fn. 12.) Thoughthis
commentcould be construed to suggest that disclosing an officer’s name in connection
with a particular incident can constitute a basis for nondisclosure, we do notbelieve that
the POST Court intended to eliminate or minimize the burden on the party seeking
nondisclosure to make a particularized showing as to why disclosure would be an
unwarranted invasion of personal privacy under section 6254, subdivision (c). We agree
with the trial court that appellants’ assertion of possible threats was inadequate underthe
exemption, absent any evidence indicating that the safety or effectiveness of any
particular officer was threatened by the disclosure of his or her name.
Appellants’ evidencelikewise 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 publicinterest
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 proofon the proponent of nondisclosure to demonstrate a
clear overbalance onthe side of confidentiality.’ [Citation.] ‘Where the public interest 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
reasonedthat the deficiencies in appellants’ evidentiary showing were likewise relevant
to the balancing required under section 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 doesnot ‘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 conductof individual officers (POST,
supra, 42 Cal.4th at p. 300), appellants’ failure to offer any countervailing public interest
in the nondisclosure of the namesofofficers involved in shootings precludes the
application of section 6255.
DISPOSITION
The order denying the request for a preliminary injunction without prejudice is
affirmed. The Timesis entitled to its costs on appeal.
CERTIFIED FOR PUBLICATION.
wd.
DOI TODD
We concur:
JP. J.
BOREN
, J.
CHAVEZ
26
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN DIEGO
I am employedin the County of San Diego, State of California. I am
over the age of eighteen years and not a party to the within action; my
business address is 315 N. Vine St., Fallbrook, CA 92028.
That on March 17, 2012, I served the foregoing document described
as: PETITION FOR REVIEWonall interested parties as follows:
(X) by placing () the original (X) a true copy thereof enclosed in sealed
envelope(s) addressed as follows:
SEE ATTACHED SERVICELIST
(X) (BY MAIL)I deposited such envelope(s) in the mail at 1350 E.
Chapman Ave., Fullerton, CA.
I am “readily familiar" with the firm's practice of collection and
processing correspondence for mailing. The envelope was mailed with
postage thereon fully prepaid. It is deposited with U.S. postal service on
that same day in the ordinary course of business. I am aware that on motion
of party served, service is presumed invalid if postal cancellation date or
postage meter date is more than 1 day after date of deposit for mailing as
stated in the Declaration.
Executed on March 17, 2012 at Fullerton, California.
I declare under penalty of perjury, under the laws ofthe State of
California that the aboveis true and correct.
x“
Z
}
Diane Castillo / ™~
SERVICE LIST
California Court of Appeal
Second Appellate District
Division Two
Ronald Reagan State Bldg.
300 S. Spring St., 2" Floor
Los Angeles, CA 90013
Hon.Patrick T. Madden
Los Angeles County Superior Court
South District
415 West Ocean Blvd.
Long Beach, CA 90802
Christina L. Checel
Deputy City Attorney
333 West Ocean Blvd., 11" Floor
Long Beach, CA 90802-4664
Kelli L. Sager
Davis Wright Tremaine LLP
865 South Figueroa, Suite 2400
Los Angeles, CA 90017-2566
