Federated Univ. Police Officers Ass'n v. Superior Court of Alameda Cnty.

• Decision Date: 23 July 2013
• Docket Number: A136014
• Citation: 159 Cal.Rptr.3d 541
• Court: California Court of Appeals Court of Appeals
• Parties: The FEDERATED UNIVERSITY POLICE OFFICERS ASSOCIATION, Petitioner, v. The SUPERIOR COURT of Alameda County, Respondent; Los Angeles Times Communications LLC et al., Real Parties in Interest.

159 Cal.Rptr.3d 541

The FEDERATED UNIVERSITY POLICE OFFICERS ASSOCIATION, Petitioner,

v. The SUPERIOR COURT of Alameda County, Respondent;Los Angeles Times Communications LLC et al., Real Parties in Interest.

A136014

Court of Appeal, First District, Division 4, California.

Filed July 23, 2013

See 9 Witkin, Cal. Procedure (5th ed. 2008) Administrative Proceedings, § 5.

Alameda County Superior Court, Hon. Evelio Grillo. (Alameda County Super. Ct. No. RG 12632350)

Counsel for Petitioner: Lackie, Dammeier, & McGill, Lackie, Dammeier, McGill & Ethir, Dieter C. Dammeier, Upland, Michael A. Morguess.

Counsel for Respondent: No appearance for Respondent.

Michael T. Risher, Linda Lye, San Francisco, CA, for American Civil Liberties Union Foundation of Northern California, Inc., as Amicus Curiae on behalf of Respondent.

Counsel for Real Parties in Interest: Davis Wright Tremaine, Thomas R. Burke, San Francisco, Rochelle L. Wilcox, Los Angeles, Jeff Glasser, San Francisco, Office of the General Counsel, University of California, Charles F. Robison, Karen J. Petrulakis, Margaret L. Wu, Oakland, Crowell & Moring, J. Daniel Sharp, San Francisco.

RUVOLO, P.J.

I.INTRODUCTION

The Federated University Police Officers Association (FUPOA), a labor union representing University of California (UC) police officers, has filed a petition for writ of mandate from a trial court order requiring the release of unredacted reports containing the names of UC police officers under the California Public Records Act (CPRA) (Gov.Code, § 6250 et seq.). The public records requests were made by real parties in interest Los Angles Times Communications LLC and The McClatchy Company doing business as The Sacramento Bee (newspapers), to gain access to complete, unredacted versions of two reports commissioned by the University of California Board of Regents (the Regents). The reports studied a November 18, 2011 incident on the UC Davis campus during which UC Davis police officers were videotaped pepper spraying demonstrators who were nonviolently protesting escalating college costs on the UC Davis campus (pepper spray incident). The reports reviewed the facts leading up to the pepper spray incident, made conclusions regarding responsibility for the incident, and concluded with policy recommendations to ensure that such a polarizing incident did not reoccur. However, the names of more than a dozen UC police officers who planned, participated in, and/or witnessed the pepper spray incident were redacted from the reports.

In seeking writ relief, FUPOA asserts that the court erred in ordering disclosure because the redaction of the officers' names was necessary to protect the confidentiality of their personnel records as required under Penal Code section 832.7, subdivision (a).¹ The union argues that the officers' identities can only be disclosed pursuant to the procedures set out in Evidence Code sections 1043 through 1045 for granting a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 ( Pitchess ).

We agree with the trial court that the identities of the officers named in the reports must be disclosed because this information does not fall within any category of exempted information under section 832.7, subdivision (a). Consequently, FUPOA's request for writ relief is denied.

II.FACTS AND PROCEDURAL HISTORY

On November 18, 2011, a UC Davis police officer, later identified as Lieutenant John Pike (Pike), was videotaped methodically pepper spraying a row of nonviolent, seated protestors at close range after they failed to obey orders to disperse. The pepper spray incident took place after the students and their supporters had gathered on the campus to protest rising college costs. Videotapes of the close-range spraying of the demonstrators were posted on the Internet and went “viral,” triggering widespread criticism of how the police handled the protest.

In response, UC President Mark Yudof announced that he had hired former New York City Police Commissioner and Los Angeles Police Chief William J. Bratton and his consulting company, Kroll, “to provide the chancellor and the entire University of California community with an independent, unvarnished report about what happened at Davis.” He also announced the appointment of former California Supreme Court Justice Cruz Reynoso to chair a task force (the Reynoso Task Force) to examine the pepper spray incident.

The Reynoso Task Force was comprised of a cross-section of individuals from the UC Davis community, including students and academic officials. President Yudof asked the Reynoso Task Force to receive and review the fact-finding report from Kroll concerning the pepper spray incident, to issue findings regarding responsibility, and to provide recommendations to UC Davis Chancellor Linda Katehi and President Yudof on improvements to police procedures, command protocols, and campus policies that would “help ensure the rights and safety of nonviolent protestors” in the future.

In preparing its report, Kroll interviewed approximately 14 UC police officers about the pepper spray incident. The officers were ordered by the UC Davis acting chief of police “to appear for an interview with Kroll and to cooperate with their [ sic ] investigation....” However, the officers were assured that UC “will not use any information that you provide to Kroll against you in any disciplinary proceeding.” Additionally, Kroll did not interview police officers who were the target of any citizen complaints, or the subject of any internal affairs investigations with respect to their role in the pepper spray incident. The Kroll report states: “As personnel investigations are deemed confidential under California law, this report does not include information obtained from any interview of any officer whose use of force is being reviewed or who has been deemed a potential subject of discipline; only witness officers have been interviewed.”

Furthermore, while Kroll obtained documents from UC Davis, its investigation was conducted without UC Davis sharing any information generated by the internal affairs process. The Kroll report states, “[T]he Kroll team has had virtually no contact with the Internal Affairs (IA) investigative team. The IA investigative team has not provided or shared any information with the Kroll team including a witness list.” Basically, as clarified in the Kroll report, “The report of the Internal Affairs investigation will be confidential, pursuant to California law, while the Kroll report is intended to be public.”

The Kroll report is extensive and detailed. It collects and recites facts regarding all aspects of the incident, including how: (1) the UC Davis administration's decision-making process worked; (2) the administration communicated instructions to the UC police officers, including the content of those instructions; and (3) the UC police officers planned and executed the clearing of demonstrators from the campus. Following this careful recital of facts, the Kroll report provides an “Analysis,” in which the report discusses “a cascading series of errors which set the stage for the use of pepper spray.” The Kroll report identifies “three types of failures that set the stage for the use of pepper spray: failures of leadership, failures of communication and failures of documentation.”

Consistent with the Kroll report's declared limited mission, it does not recommend any discipline for any police officer, stating it was “not address [ing] the issue of discipline to be imposed, if any, on individual officers for any use of force that occurred on November 18.” Instead, it restricts its recommendations to decision-making by the UC Davis administration, the statewide reorganization of the UC police force, and proposed training for UC police officers.

The Reynoso Task Force Report (the Reynoso report) derives its facts entirely from the Kroll report. It contains one blunt overall finding: “The pepper-spray incident that took place on November 18, 2011 should and could have been prevented.” (Original boldface.) The Reynoso report assigns responsibility to nearly everyone involved in the pepper spray incident, from the UC Davis campus administration to the police officers who were on duty that day. After considering various decision points occurring during the incident, the Reynoso report describes how and why those decisions were made by specific individuals. The report then assigns responsibility to specific individuals, including police officers, for these failed decisions. Several pages of recommendations are made for the UC Davis administration, the UC Davis police, as well as the UC system in general. However, the Reynoso report clarifies that “[t]he Charge to the Task Force did not include requesting recommendations for disciplinary action.”

The Kroll report and the Reynoso report (the reports) were issued on April 12, 2012. When issued, the names and ranks of all of the officers—both witness and subject officers—were redacted with the exception of two individuals whose identities were widely known, Pike (the officer captured on the video recording actively participating in the pepper spray incident), and then-UC Davis Police Chief Annette Spicuzza. Instead of identifying the officers by name, pseudonyms are used, such as “Officer F successfully removed arrestees from the site” and “[i]f Lts. [ sic ] Pike and Officer P had been aware of Officer F['s] success, they may have considered a different tactic.”

The redaction of the officers' names in the reports was the result of the first round of litigation. FUPOA and Pike originally sought to stop the release of the reports in their entirety. They claimed “[t]his relief is necessary to stop the unlawful release of confidential peace officer personnel information” as protected by section 832.7, subdivision (a). In this earlier action, the Regents advocated for the publication of the reports without redaction...