Police Officer Personnel Records Disclosure In California
Penal Code section 832.7, subdivision (a), states that "peace officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. . . ." "Personnel records" is broadly defined and includes an officer's personal data and employment history, as well as the officer's record of discipline and investigations of complaints. (Pen. Code, 832.8.)
Evidence Code section 1043, subdivision (a) provides that "in any case in which discovery or disclosure is sought of peace officer personnel records . . . or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. . . ."
Numerous cases have noted that Penal Code section 832.7, along with Evidence Code sections 1043 and 1046, were enacted by the Legislature in response to the Supreme Court's ruling in Pitchess v. Superior Court (1974) 11 Cal. 3d 531 113 Cal. Rptr. 897, 522 P.2d 305. (City of Santa Cruz v. Municipal Court (1989) 49 Cal. 3d 74, 81 260 Cal. Rptr. 520, 776 P.2d 222; Hackett v. Superior Court (1993) 13 Cal. App. 4th 96, 100 16 Cal. Rptr. 2d 405; Michael v. Gates (1995) 38 Cal. App. 4th 737, 740 45 Cal. Rptr. 2d 163; City of Hemet v. Superior Court (1995) 37 Cal. App. 4th 1411, 1423 44 Cal. Rptr. 2d 532.)
As we explained in Michael v. Gates, "In Pitchess, the court held that criminal defendants have the right to discover relevant information in a peace officer's personnel records relating to citizen complaints.
In adopting the statutory scheme, the Legislature not only reaffirmed but expanded upon the principles of criminal discovery articulated in Pitchess. " (Michael v. Gates, supra, 38 Cal. App. 4th at p. 742, italics omitted.)
We further explained: "Our Supreme Court described the statutory scheme and its origins in City of Santa Cruz v. Municipal Court, supra, 49 Cal. 3d 74. 'In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as "Pitchess motions" . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. the Penal Code provisions define "personnel records" (Pen. Code, 832.8) and provide that such records are "confidential" and subject to discovery only pursuant to the procedures set forth in the Evidence Code. (Pen. Code, 832.7.)
Evidence Code sections 1043 and 1045 set out the procedures for discovery in detail.
As here pertinent, Evidence Code section 1043, subdivision (a) requires a written motion and notice to the governmental agency which has custody of the records sought, and subdivision (b) provides that such motion shall include, . . . Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation . . . . a finding of "good cause" under Evidence Code section 1043, subdivision (b) is only the first hurdle in the discovery process.
Once good cause for discovery has been established, Evidence Code section 1045 provides that the court shall then examine the information "in chambers" in conformity with Evidence Code section 915 (i.e., out of the presence of all persons except the person authorized to claim the privilege and such other persons as he or she is willing to have present), and shall exclude from disclosure several enumerated categories of information . . . . (Evid. Code, 1045, subd. (b).)
In addition to the exclusion of specific categories of information from disclosure, Evidence Code section 1045 establishes general criteria to guide the court's determination and insure that the privacy interests of the officers subject to the motion are protected. . . . the statutory scheme thus carefully balances two directly conflicting interests: the peace officer's just claim to confidentiality, and the criminal defendant's equally compelling interest in all information pertinent to his defense.' " (Id. at pp. 742-743.)
The term "confidential" in Penal Code section 832.7 has independent significance and "imposes confidentiality upon peace officer personnel records and records of investigations of citizens' complaints, with strict procedures for appropriate disclosure in civil and criminal cases . . . ." (City of Richmond v. Superior Court (1995) 32 Cal. App. 4th 1430, 1440 38 Cal. Rptr. 2d 632.)
Because police personnel records are confidential, their disclosure requires adherence to the motion and hearing requirements of Evidence Code sections 1043 and 1045, despite the context in which such records are requested.
City of Hemet v. Superior Court, supra, 37 Cal. App. 4th at pp. 1425-1426 the specific procedures under Evid. Code, 1043- 1045 take precedence over the general provisions of the California Public Records Act;
Davis v. City of Sacramento (1994) 24 Cal. App. 4th 393, 400 29 Cal. Rptr. 2d 232 police personnel records remain confidential after officer retires and may only be disclosed after following the specific procedures under the Penal and Evidence Codes;
Hackett v. Superior Court, supra, 13 Cal. App. 4th at pp. 100-101 information contained in police personnel files can only be disclosed upon compliance with Evid. Code, 1043 and is not discoverable under the discovery rules in the Code of Civil Procedure merely because the information is obtainable from other sources;
County of Los Angeles v. Superior Court (1990) 219 Cal. App. 3d 1605, 1608 269 Cal. Rptr. 187 Evidence Code, and not the Code of Civil Procedure, provides the exclusive means for obtaining discovery of peace officer personnel records.)
Given the status of confidentiality conferred by the Legislature on police personnel records, the officer's right to be notified that his or her records are sought (Evid. Code, 1043, subd. (a)), and his or her right to seek a protective order from "unnecessary annoyance, embarrassment or oppression" (Evid. Code, 1045, subd. (d)), courts have concluded that an officer has a limited or conditional "privilege" in such records. (See Hackett v. Superior Court, supra, 13 Cal. App. 4th at pp. 100-101; City of Hemet v. Superior Court, supra, 37 Cal. App. 4th at pp. 1430-1431; Michael v. Gates, supra, 38 Cal. App. 4th at p. 744.)
The privilege is conditional or limited because an officer cannot prevent disclosure of his or her personnel records or information contained in those records simply because he or she does not desire disclosure.
After all, the whole purpose behind the Penal and Evidence Code provisions is to provide disclosure in civil or criminal proceedings where the moving party shows the information sought is material to the subject matter involved in the pending litigation. (City of Santa Cruz v. Municipal Court, supra, 49 Cal. 3d at p. 83; Michael v. Gates, supra, 38 Cal. App. 4th at p. 745.)