A simple scenario plays out each day in California. The need arises to obtain the name(s) of police who went to a call. For whatever reason, a citizen wants to know who went to the call, contacts dispatch, and simply makes the request what officers went to a specific call. The dispatcher declines the request, as does the police station supervisor. Thus, absent a subpoena, the option to obtain officer name may be obtained without filing a lawsuit through a public records act request.
The California Public Records Act (“Act”). The Act requires that local and state agencies make their public records available for inspection. (Govt. Code § 6253.) A “public record” is defined as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency[.]” (Govt. Code § 6252, subd. (e).) The definition is broad and “‘ intended to cover every conceivable kind of record that is involved in the governmental process[.]’ ” (San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 774, quoting § 6252, subd. (e).)
The public has a vital interest in understanding and evaluating a police department’s response to an alleged crime and the manner it handles the call. The public retains the right to know the name and rank of all officers who responded and the roles they played in order to evaluate the department’s response, verify that the department complied with its own policies and procedures, determine if the department’s response conformed to best practices, and suggest changes to policies and procedures in responding to future similar incidents. The public also has a significant interest in verifying that officers deployed to respond to a potential crime and suggesting how such training might be improved.
Names and ranks of police officers are not automatically exempt from public disclosure. Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Cal.4th 278. “Law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state. In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers.” Id. at 297.
The Attorney General recently concluded “the name of a peace officer involved in a critical incident is not categorically exempt from disclosure” under the CPRA or Penal Code. Opinion No. 07-208, 91 Ops. Cal. Atty. Gen. 11. The Attorney General specifically noted “a request just for the names of officers involved in a particular incident may be provided without revealing any investigatory or disciplinary matter that may have arisen out of the incident.” Ibid. The “identities of officers involved in a particular incident that occurred in the course and scope of their duties as peace officers is clearly information related ‘to the conduct of the public’s business'” and is subject to disclosure if “it is recorded in any manner and can be redacted to protect any confidential material.” Ibid.
The officers’ identities may be withheld only if the government can carry its heavy burden to prove “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Ibid. (quoting Govt. Code, § 6255(a).) For example, that narrow exception might apply to an undercover officer or an incident involving a street gang and the prospect of retribution by the gang. Ibid. However, the exception cannot apply indiscriminately to any incident in which an officer is involved.
The request is not a request for personnel records. The definition of “personnel records” in Penal Code Section 832.7 is provided in Section 832.8, and Section 832.8 does not specifically refer to records of officer training. Records that “do not reflect any of the items enumerated” in section 832.8 are not exempt from disclosure under Section 832.7. International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 346.
If police determine that any or all or the information qualifies for an exemption from disclosure, then ask whether, as is normally the case under the Act, the exemption is discretionary, and if so whether it is necessary in this case to exercise the departments’ discretion to withhold the information.
Furthermore, if the police department determines that some but not all of the information is exempt from disclosure and that police intend to withhold it, request that police redact it for the time being and make the rest available as requested. In any event, ask police to please provide a signed notification citing the legal authorities on which you rely if you determine that any or all of the information is exempt and will not be disclosed. Typically, public record requests are handled by the City Attorney for municipal police or County Counsel for the Sheriff.
Additionally, an agency has 10 days to decide if copies will be provided. In “unusual” cases (request is “voluminous,” seeks records held off-site, OR requires consultation with other agencies), the agency may upon written notice to the requestors give itself an additional 14 days to respond. (Govt. Code §6253(c)) These time periods may not be used solely to delay access to the records. (Govt. Code § 6253(d)) As such, the police cannot delay its reply, since these records should be readily available since this is the manner a member of the public is to be aware how to stay in compliance with the law. If any of the requested items do not exist ask the police to please state such when you reply.
Of course, it is best to consult with counsel concerning the request, and if done on your own, always be courteous and respectful of police. Since strict time lines apply for police, or any public agency to respond to a CPRA request, it is advisable to send the request by certified mail, FedEx, UPS, etc. and any communication is made in writing.
I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court’s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada’s analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination.