City of Richmond v. Superior Court, A065873

• Decision Date: 03 March 1995
• Docket Number: No. A065873,A065873
• Citation: 32 Cal.App.4th 1430,38 Cal.Rptr.2d 632
• Court: California Court of Appeals Court of Appeals
• Parties: , 23 Media L. Rep. 1449 CITY OF RICHMOND et al., Petitioners, v. The SUPERIOR COURT of Contra Costa County, Respondent; SAN FRANCISCO BAY GUARDIAN, Real Party in Interest.

Page 632

38 Cal.Rptr.2d 632

32 Cal.App.4th 1430, 23 Media L. Rep. 1449

CITY OF RICHMOND et al., Petitioners, v. The SUPERIOR COURT of Contra Costa County, Respondent SAN FRANCISCO BAY GUARDIAN, Real Party in Interest.

No. A065873.

Court of Appeal, First District, Division 3, California.

March 3, 1995.

Rehearing Denied March 30, 1995.

Review Denied June 22, 1995.

Malcolm Hunter, City Atty., Everett Jenkins, Asst. City Atty., Richmond, for petitioners.

First Amendment Project, James R. Wheaton, Elizabeth Pritzker, Law Office of Mark Goldowitz, Mark Goldowitz, Oakland, for real party in interest.

CHIN, Presiding Justice.

Penal Code section 832.7 provides that peace officer personnel records and records of investigations on citizens' complaints are confidential. It provides that these records "... shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code...." The San Francisco Bay Guardian (the Guardian) newspaper seeks to obtain from the City of Richmond (Richmond) some information from these records, not pursuant to these Evidence Code sections but under the provisions of the California Public Records Act, Government Code section 6250 et seq. (CPRA). The superior court, apparently relying upon Bradshaw v. City of Los Angeles (1990) 221 Cal.App.3d 908, 270 Cal.Rptr. 711 (Bradshaw), has adopted CPRA procedures and directed Richmond to turn over its records for in camera review. Although we disagree with the broad language used by Bradshaw, we conclude CPRA procedures are appropriate where, as here, the records are not sought in connection with a pending lawsuit. Pursuant to Penal Code section 832.7, however, much of what the Guardian seeks is confidential and need not be disclosed. We direct issuance of a writ of mandate to compel the court to set aside its order.

In early 1993, during its investigation of an incident of alleged excessive force and racially abusive conduct by the Richmond Police Department (RPD), the Guardian made repeated written requests for information about complaints against the RPD. These requests sought various records, including the following: (1) the citizen complaint files of the Richmond Police Commission (RPC) involving police misconduct, specifically excessive force and racially abusive treatment (in this request, the Guardian sought "all RPC records of such matters, including, but not limited to, complaints filed, investigative officer findings and reports, the Commission's resolutions, transactions, motions, orders, findings, recommendations and determinations, and minutes and transcripts of Commission meetings and hearings"); (2) "[a]ccess to RPD records which reflect or indicate or contain information regarding what recommendations or disciplinary actions (e.g., counselling, suspension, termination) have been issued or taken for each sustained complaint over the past five years, and what type of misconduct was alleged in each of those complaints ... ( [t]his request does not seek names of the complainants or officers involved ...)"; (3) "[a]ccess to or copies of records which reflect or indicate or contain information regarding the weight and height of all officers by name" involved in the specific incident that sparked the investigation.

Richmond refused to provide access to these records, asserting that the information was governed by Penal Code sections 832.5 and 832.7 and could be obtained only by following the procedures set forth in Evidence Code sections 1043 and 1046. The Guardian then brought an action in the Contra Costa Superior Court under CPRA to compel Richmond to comply with the Guardian's request for public access to documents.

After extended briefing and two hearings, the court entered an order, pursuant to CPRA, compelling Richmond to lodge, under seal, for in camera review "the investigative records and files of the Richmond Police Commission and the Richmond Police Department based on citizen complaints involving claims of excessive force and racially abusive treatment and records regarding disciplinary actions based on such complaints for the last five years...." The order required Richmond simultaneously to lodge a descriptive index of the documents setting forth the reasons for exempting them from disclosure. The names of officers and citizens involved in the actions would be removed from the descriptive index. Citing Penal Code section 832.8 and Government Code section 6254, subdivision (c), the court denied the Guardian's request for information about the height and weight of the officers. This petition by Richmond followed, challenging the requirements that it disclose records in camera and prepare a descriptive index.

I. THE STATUTES

This dispute illustrates the tension between the public's right to know and the equally important public interest in protecting citizens and public servants from unwarranted exposure of private matters. The Legislature has honored the public's right to know by adopting CPRA and has provided privacy protection for police officers and citizens by passing Penal Code section 832.7. Our task is to reconcile these statutes, neither of which mentions the other. Other courts have discussed the issues (see County of Los Angeles v. Superior Court (1993) 18 Cal.App.4th 588, 22 Cal.Rptr.2d 409 (County of Los Angeles ); Bradshaw, supra, 221 Cal.App.3d 908, 270 Cal.Rptr. 711), but we have found no decision directly addressing the problem presented here.

CPRA, adopted in 1968 (Stats.1968, ch. 1473, § 39, pp. 2945-2948), acknowledges the tension between privacy and disclosure: "In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (Gov.Code, § 6250.) CPRA provides that "[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided...." (Gov.Code, § 6253, subd. (a).) CPRA then provides various exemptions, including "[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy ..." (Gov.Code, § 6254, subd. (c)), certain investigatory and security files (Gov.Code, § 6254, subd. (f)); see fn. 2, post, at p. 636 of 38 Cal.Rptr.2d, and "[r]ecords the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege." (Gov.Code, § 6254, subd. (k).) An agency must justify withholding a record by demonstrating either that the record is exempt under provisions of CPRA or that "on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record." (Gov.Code, § 6255.) Rights under the act may be enforced by actions for "injunctive or declarative relief or writ of mandate" (Gov.Code, § 6258), during which the court may order in camera review to determine whether documents are being improperly withheld (Gov.Code, § 6259, subd. (a)). Appellate review is by extraordinary writ, not by appeal. (Gov.Code, § 6259, subd. (c); but see Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1333, fn. 6, 283 Cal.Rptr. 893, 813 P.2d 240, where the validity of this restriction is questioned.) This issue is currently before the California Supreme Court in Powers v. City of Richmond ^* (Cal.App.) review granted 31 Cal.Rptr.2d 631, 875 P.2d 736 (1994).

In 1974, the Legislature enacted Penal Code section 832.5, requiring each sheriff's department and city police department to establish a procedure for investigating citizens' complaints against law enforcement personnel (Stats.1974, ch. 29, § 1, p. 43). In 1978, the Legislature added Penal Code section 832.7 (Stats.1978, ch. 630, § 5, p. 2083), subsequently amended to its present form: "(a) Peace officer personnel 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. This section shall not apply to investigations or proceedings concerning the conduct of police officers or a police agency conducted by a grand jury, a district attorney's office, or the Attorney General's office." (Pen.Code, § 832.7, subd. (a).) ¹ Penal Code section 832.8 defines " 'personnel records' " to mean files maintained under an individual's name by his or her employing agency and containing records relating to personal data, medical history, employee benefits, "(d) [e]mployee advancement, appraisal, or discipline[,] [p] (e) [c]omplaints, 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 which he or she performed his or her duties[, and] [p] (f) [a]ny other information the disclosure of which would constitute an unwarranted invasion of personal privacy."

Evidence Code section 1043 provides that "the party seeking the discovery or disclosure" of a file maintained pursuant to Penal Code section 832.5 must file a motion supported by affidavits "showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records." (Evid.Code, § 1043, subds. (a), (b)(3).) Pursuant to Evidence Code section 1046, if the party is alleging excessive force by a peace officer in connection with an arrest, the motion shall include a copy of the police...