The California Attorney General recently considered whether a law enforcement agency must provide the names of peace officers involved in an incident in which lethal force was used pursuant to a request made under the California Public Records Act. The Attorney General opined that the names must be disclosed unless public interest in not disclosing them clearly outweighs public interest served by disclosing them. (Attorney General Opinion, 07-208, May 19, 2008)
Attorney General Opinion
Answering this question required analyzing the relationship between two statutory schemes, the California Public Records Act (“Act”) and Penal Code sections that make peace officer personnel records confidential, the Attorney General said.
The express purpose of the Act is to ensure the public’s right to monitor government activities and obtain information about how the public’s business is conducted. Exceptions, therefore, are construed narrowly, the Attorney General reasoned, and the burden is on an agency seeking to withhold public information to demonstrate that it falls expressly within an exemption or that the facts of a particular case make the public interest clearly better served by non-disclosure. One such exception is Penal Code Section 832.7, which establishes the confidentiality of peace officers’ personnel records.
The relationship between the statutes was analyzed in New York Times Co. v. Superior Court, 52 Cal App. 4th 97 (1997), in which a California Court of Appeal found that peace officers names could be provided without disclosure of actual personnel files, and that disclosure of the names was therefore required under the Act, and not protected by the Section 832.7. In Copley Press, Inc. v. Superior Court of San Diego County, 39 Cal. 4th 1272 (2006), however, the California Supreme Court ruled that Section 832.7 “is designed to protect, among other things, the identity of officers subject to complaints,” and the identity of an officer in a disciplinary proceeding need not be disclosed. The Attorney General opined that Copley, because it specifically involved information concerning a disciplinary proceeding, did not alter the central premise of New York Times, that the names of peace officers involved in public incidents must be disclosed, as long as doing so does not reveal confidential information, compromise safety or an ongoing investigation.
Therefore, the Attorney General concluded the request of an officer’s name who was involved in an incident of lethal force must be disclosed because it merely communicates a statement of fact and does not imply judgment that the action was inappropriate or suspect. To withhold such information, a law enforcement agency must demonstrate that the public’s interest in withholding it, for such reasons as protecting safety or an ongoing investigation, clearly outweighs the public’s interest in disclosure.