Hackett v. Superior Court

• Decision Date: 10 February 1993
• Docket Number: No. B071643,B071643
• Citation: 16 Cal.Rptr.2d 405,13 Cal.App.4th 96
• Court: California Court of Appeals Court of Appeals
• Parties: Clipper HACKETT, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent; Andrew GLIN, Real Party in Interest.

Page 405

16 Cal.Rptr.2d 405

13 Cal.App.4th 96

Clipper HACKETT, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent;

Andrew GLIN, Real Party in Interest.

No. B071643.

Court of Appeal, Second District, Division 1, California.

Feb. 10, 1993.

Franscell, Strickland, Roberts & Lawrence, Carol D. Janssen and Sherry L. Hovind, Pasadena, for petitioner.

No appearance for respondent.

Dale Runge, Los Angeles, for real party in interest.

OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE

MIRIAM A. VOGEL, Associate Justice.

The question before us is whether the conditional privilege created by section 1043 of the Evidence Code ¹ for peace officer personnel records protects all information in a deputy sheriff's file without regard to whether a particular piece of information can also be found elsewhere. Our answer is that it does.

FACTS

Andrew Glin sued Deputy Sheriff Clipper Hackett for damages, alleging that while Glin was a jail inmate, Hackett disciplined him by smashing his face into a wall.

During the course of discovery, Glin served Hackett with interrogatories asking for Hackett's home address, telephone number, place of birth, driver's license number and educational background. Hackett refused to answer, contending the information could be obtained, if at all, only after compliance with the procedure spelled out in section 1043 (which together with sections 832.7 and 832.8 of the Penal Code creates a conditional privilege for peace officer personnel records and the information contained in those records). Glin's motion to compel answers was granted (and Hackett was ordered to pay sanctions), apparently because the trial court perceived a difference between a request for information which by its nature would be found only in a peace officer's personnel file (citizen complaints and disciplinary action) and information typically available outside the file (home addresses). On Glin's suggestion, the trial court issued a protective order precluding disclosure to third persons.

Hackett petitioned for a writ of mandate or prohibition and we issued a stay to prevent disclosure of the disputed information pending our decision.

DISCUSSION

Hackett contends the requested information is conditionally privileged and subject The statutory scheme does not leave room for doubt. (See City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83, 260 Cal.Rptr. 520, 776 P.2d 222 [as statutory schemes go, this one is "a veritable model of clarity and balance"].) Under subdivision (a) of section 832.7 of the Penal Code, "[p]eace officer personnel records ... 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...." (Emphasis added.) Section 832.8 of the Penal Code explains that, as used in section 832.7, "personnel records" means any file maintained by the employing agency under the officer's name and containing records relating to "marital status, family members, educational and employment history, home addresses, or similar information," medical history, election of employee benefits, complaints or discipline, and "[a]ny other information the disclosure of which would constitute an unwarranted invasion of personal privacy." (Emphasis added.) ²

to disclosure only upon compliance with section 1043. We agree.

Subdivision (a) of section 1043 provides, as relevant, that "[i]n any case in which discovery ... is sought of peace officer personnel records ... or information from those records, the party seeking the discovery ... shall file a written motion with the appropriate court ... [and give] written notice to the governmental agency which has custody and control of the records...." (Emphasis added.) Subdivision (b) of section 1043 lists the items required to support the motion, including a showing by affidavit of "good cause for the discovery ... sought, setting forth the materiality thereof to the subject matter involved in the pending litigation...."

In a slightly different context, Division One of the Fourth District held that the statute means what it says. In City of San Diego v. Superior Court (1981) 136 Cal.App.3d 236, 186 Cal.Rptr. 112, a wrongful death action, two police officers refused to answer deposition questions about whether they had received reprimands in connection with their work. Starting from the premise that "a litigant may not obtain indirectly what is directly privileged and immune from discovery," the court held that "the statutes which protect personnel records and information from such records also protect the identical information about personnel history which is within the officers' personal recollections. There would be no purpose to protecting such information in the personnel records if it could be obtained by the simple expedient of asking the officers for their disciplinary history orally." (Id. at p. 237, 186 Cal.Rptr. 112.)

In the case before us, the trial court correctly observed that the information requested by Glin is of the sort usually found outside a peace officer's personnel file (as well as within it) and that this case is therefore factually distinguishable from City of San Diego v. Superior Court, supra, 136 Cal.App.3d 236, 186 Cal.Rptr. 112. But the emphasis on that point simply begs the question. The information requested in this case (such as Hackett's home address) is information included in Hackett's privileged personnel file (Pen.Code, § 832.8, subd. (a)) and there is nothing in the statutory scheme or its history suggesting a legislative intent to exclude from the privileged information which happens to be obtainable elsewhere.

To the contrary, the Legislature has demonstrated its ability to create an exception when one is intended. Section 1044 creates an express exception for certain medical records by directing that section 1043 shall not "be construed to affect the right of access to records of medical or psychological history where such access would otherwise be available under Section 996 or 1016." As a result, medical records discoverable under the patient-litigant exceptions to the physician patient (§ 996) and psychotherapist-patient privileges (§ 1016) are discoverable notwithstanding the fact that copies of such records might be found in a peace officer's personnel file.

                The exception for discoverable medical reports demonstrates the Legislature's ability to create exceptions for home addresses and other information which, but for the conditional privilege of section 1043, would be discoverable from a source other than a peace officer's personnel records.  (See City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 88, 260 Cal.Rptr. 520, 776 P.2d 222.)   Under these circumstances, the absence of an exception means none was intended
                

The history of the peace officer's conditional privilege supports the same conclusion. Sections 1043, 1044 and 1045 were added to the Evidence Code and sections 832.7 and 832.8 were added to the Penal Code by Senate Bill No. 1436 in 1978. (Stats.1978, ch. 630, §§ 5, 6, p. 2083.) ³ From the outset, the bill covered both "information concerning the officer" and "complaints or investigations of the officer." (Assem. Com. on Crim. Justice, analysis of Sen. Bill No. 1436, Aug. 7, 1978, p. 2, emphasis added.) Although it is clear the bill was conceived as a legislative response to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, and Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123-128, 130 Cal.Rptr. 257, 550 P.2d 161, as a means to regulate access to citizen complaints and disciplinary information in police personnel files (People v. Breaux (1991) 1 Cal.4th 281, 311-312, 3 Cal.Rptr.2d 81, 821 P.2d 585; County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, 1609, 269 Cal.Rptr. 187), it is equally clear from its plain language that the bill, from the outset, was intended to create a privilege for all information in peace officers' personnel files.

Additionally, there is the fact that certain information about peace officers which might otherwise be available through various...