A recent decision from the First District Court of Appeal represents a split of authority on the issue of whether a peace officer under administrative investigation is entitled to receive copies of reports and complaints prior to being subject to a second interrogation.
Government Code Section 3303(g) provides the following:
The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer’s personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
While Section 3303(g) is clear that any tape recordings must be provided to the officer prior to a subsequent interrogation, the question at issue is whether reports and complaints mentioned in the following sentence are also subject to those same timing requirements.
The ruling authority on this issue prior to the First District Court of Appeal’s decision came from the Fourth District Court of Appeal’s decision in Santa Ana Police Officers Association v. City of Santa Ana (2017) 13 Cal.App.5th 317 (“Santa Ana POA”). There the Court held that peace officers must be furnished with all tape recordings, stenographer notes, reports and complaints prior to any subsequent interrogation. The Court relied on the Supreme Court’s decision in Pasadena Police Officers Association v. City of Pasadena (1990) 51 Cal.3d 564 (“Pasadena POA”) in coming to that conclusion.
In Pasadena POA, the Supreme Court stated that the peace officer’s rights to reports and complaints were “coextensive” to their rights to tape recordings, since the sentence regarding reports and complaints follows directly from the sentence regarding tape recordings. However, the issue in Pasadena POA was whether a peace officer had the right to receive reports and complaints prior to an initial interrogation, not after an initial interrogation.
The First District Court of Appeal’s recent decision in Oakland Police Officers Association v. City of Oakland (2021) Cal.App.5th (“Oakland POA”) rejects the Fourth District Court of Appeal’s interpretation of Section 3303(g) stating that the language of Section 3303(g) is clear that tape recordings must be provided prior to a subsequent interrogation, while reports and complaints need only be provided to the extent that they are not deemed confidential. The Court also relied on Pasadena POA but focused instead on the Supreme Court’s balancing of peace officers’ rights to a fair process with the public’s concern for “prompt, thorough, and impartial investigations of police misconduct claims.” Further the Court stated that the Supreme Court’s discussion of “coextensive” rights should be limited to the narrow issue of whether peace officers are entitled to reports and complaints prior to an initial interrogation and should not be read to mean that peace officers are entitled to reports and complaints immediately after an initial interrogation.
The Court in Oakland POA further expounded on reports and complaints that an agency may deem confidential. The Court reasoned that nothing in 3303(g) limits the ability of an agency to de-designate a document as confidential at a later time. This crucial caveat enables an agency to deem a report confidential during an investigation so that a peace officer cannot access it, once the investigation has been completed, de-designate it so that the report may be relied on in pursuing punitive action against the peace officer. Whereas if a document were withheld due to confidentiality and remained confidential, it could not be used as a basis for seeking punitive action.
This split in authority means that depending on where your case arises, you may be entitled to or denied reports and complaints prior to subsequent interrogations.
The Fourth District Court of Appeal (Santa Ana POA), where you will be entitled to reports and complaints, is responsible for Orange, San Diego, Imperial, Riverside, Inyo, and San Bernardino Counties.
The First District Court of Appeal (Oakland POA), where you can be denied access to reports and complaints, is responsible for Alameda, Contra Costa, Fresno, Marin, Monterey, San Bernito, San Francisco, San Mateo, Santa Clara, and Santa Cruz Counties.
