Public Employment Relations Board Reinforces Peace Officer Confidentiality in Personnel Records and Applicability of Pitchess Procedures in Administrative Hearings

On January 31, 2025, the Public Employment Relations Board (“PERB”) issued a decision upholding the dismissal of the California State University Employees Union’s (“CSUEU”) unfair practice charge filed against the Trustees of the California State University – Stanislaus (“CSU”) seeking the disclosure of peace officer personnel records outside of the Pitchess process. On behalf of the Statewide University Police Association (“SUPA”), Mastagni Holstedt partner Kathleen Mastagni Storm filed an informational brief in support of denying the appeal. PERB upheld the dismissal of the charge without leave to amend.

Facts

    CSUEU represented an employee who submitted a formal complaint alleging a peace officer in the SUPA bargaining unit engaged in harassment, disparate treatment, and created a hostile work environment. At CSU’s request, the Stanislaus County Sheriff’s Department (“SCSD”) conducted an independent investigation and created a report. SCSD provided the investigative report to the CSU Stanislaus Chief of Police, and thereafter the Chief of Police forwarded it to CSU human resources representatives. The complaining employee was then given notice that her allegations were not sustained.

    Several months later, CSUEU submitted a request for information to CSU seeking, among other things, a copy of the investigation report. CSU responded to the request stating that “per California Penal Code Section 832.7, [the University] is precluded from distributing copies of SCSD’s report on the matter, absent a court order.” Thereafter, CSUEU asserted that CSU must meet and confer with CSUEU over the confidentiality concerns involved in providing the report and that a failure to do so would provide the basis for an unfair practice charge. After a series of responses from CSU and CSUEU, in which both parties reaffirmed their initial positions, CSUEU filed an unfair practice charge with PERB alleging CSU violated the Higher Education Employer-Employee Relations Act (“HEERA”) when it refused to disclose the investigative report or meet and confer with CSUEU to address its confidentiality concerns.

    The PERB Office of the General Counsel (“OGC”) dismissed the charge for failure to state a prima facie case. PERB’s OGC determined that the report was confidential pursuant to Penal Code section 832.7, and that the report could only be provided through the discovery process described in Evidence Code sections 1043 and 1046. CSUEU appealed the dismissal. In its review of the appeal, PERB concluded that CSU did not violate HEERA by refusing to provide the investigative report to CSUEU.

A Union’s Right to Information

    An exclusive representative is presumptively entitled to information that is necessary and relevant in discharging its representational duties or exercising its right to represent bargaining unit employees regarding terms and conditions of employment within the scope of representation. (Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 16-17; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 17.) PERB has held that investigatory reports relating to hostile work environment claims impacting bargaining unit members are presumptively relevant. However, if such reports contain private information of third parties, PERB applies a balancing test that weighs a union’s need and interest in obtaining the information against the employer or third party’s privacy and confidentiality interest. Typically, an employer may not outright refuse to furnish information based on privacy concern. Instead, the parties must meet and confer in good faith to reach accommodation such as redactions, limiting use of materials, and prohibiting public disclosure.

    Yet, this right to information is further limited if such requested information is protected by the confidentiality of California Penal Code Section 832.7. Such records are “confidential” and “may not be disclosed” save for the procedures outline in the Pitchess statutory scheme. The Pitchess statutes reflected the state Legislature’s intent to balance the discovery of requested information with an officer’s confidentiality interest.

    Penal Code Section 832.7 provides that the personnel records of peace officers…and records…or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except for discovery pursuant to Section 1043 and 1046 of the Evidence Code. (Pen. Code, § 832.7(a).) This statute establishes a general condition of confidentiality that applies beyond criminal and civil proceedings and cannot be circumvented by third parties invoking the California Public Records Act. (Copley Press v. Superior Court (2006) 39 Cal.4th 1272, 1286.)

    According to Penal Code Section 832.7, such confidential information may only be subject to discovery pursuant to Evidence Code Sections 1043 and 1045. The statutes establish procedures for discovery which require a party seeking the records to follow the Pitchess procedures. Such procedures include, among other things, a noticed motion, identification of the proceeding in which disclosure is sought, a description of the records, a time and place at which the motion for disclosure shall be heard, and affidavits showing good cause for the discovery sought. If the court finds “good cause” for the disclosure of the records, the court ruling on the motion must examine the records in camera and determine whether there are portions of the record to be excluded from disclosure.

CSUEU Attempted to Circumvent the Pitchess Procedures for Disclosure

    CSUEU refused to follow the Pitchess procedures; instead insisting the report be disclosed under HEERA and that CSU meet and confer over any privacy concerns.  PERB rejected the argument, explaining that because the peace officer personnel records are confidential pursuant to Penal Code 832.7, the requirement for CSU to meet and confer over privacy interests does not apply. PERB went on to find that on the facts of this case, meeting and conferring over CSUEU’s request for information would have been futile.

    Penal Code Section 832.7 and Evidence Code Sections 1043 and 1045 only permit discovery in the context of a pending hearing. CSUEU did not request the investigation report in the context of any pending action. Rather, it sought the report for the general purpose to better represent its members in future matters. The Supreme Court and PERB find that Penal Code Section 832.7 would be circumvented if it did not apply in the context of a pre-dispute information request. Therefore, CSUEU would need to comply with the Pitchess statutes to obtain a copy of the report. 

    PERB noted that a peace officer personnel record’s exemption from disclosure under CPRA does not render it entirely privileged under HEERA. However, the procedures for disclosure under HEERA must maintain the balance that the Legislature intended with the Pitchess statutes. Still, compliance is not possible without a pending proceeding in which the requesting party may file a motion to establish good cause to receive the records and a hearing officer can conduct an in-camera review prior to disclosure. 

    PERB concluded that an exclusive representative is not entitled to receive records covered by Penal Code Section 832.7 absent compliance with the Pitchess procedures. Given that CSUEU did not adhere to the requisite procedures and there was no pending hearing, the dismissal of the unfair practice charge was upheld. An exclusive representative may only obtain records deemed confidential under Penal Code Section 832.7 by invoking Evidence Code section 1043 in any hearing or arbitration where they are material. 

    This decision upholds the protections of Penal Code section 832.7 and prevents an exclusive representative or employee from undermining the Pitchess procedures through a request for information submitted before any action was pending before a hearing officer. PERB was firm in its refusal to issue a “…complaint alleging failure to provide information merely as a mechanism to assign an ALJ and allow a Pitchess motion to be filed; [finding] such bootstrapping falls outside the substantive and procedural boundaries of the confidentiality exception explained in the above-referenced jurisprudence.”  (California State University Employees Union v. Trustees of the California State University (Stanislaus) (2025) PERB Decision No. 2940-H at p. 16.)