Dash Camera Video Not Part of Officer’s Personnel Record, Court Rules

A California appeals court ruled this week that dash camera footage is not part of an officer’s confidential personnel record, even though it was used in an internal affairs investigation against the officer. The Court of Appeal ruled in City of Eureka v. Superior Court (Thadeus Greenson) (1st Dist., July 19, 2016) that Pitchess statutes do not protect this kind of video footage from being released to the public.

Eureka Police Sergeant Adam Laird and other officers arrested a juvenile suspected of gang activity. After the incident, the Eureka Police Department opened an internal affairs investigation into Sergeant Laird’s conduct, eventually deciding to fire him. And the Humboldt County District Attorney’s Office charged Laird with misdemeanor assault by a police officer without lawful authority and making a false police report. Both investigations alleged that Laird used excessive force against the suspect, including pushing him to the ground and then kicking or stomping on him repeatedly.

A key piece of evidence in both of these investigations was the video recorded by the dash camera in another officer’s vehicle. This video apparently recorded the whole interaction between Sergeant Laird and the juvenile suspect. Experts hired by both the prosecution and Laird’s defense attorney determined Laird’s use of force was justified under the circumstances. The prosecution dropped the charges and the Department halted its termination of Laird.

However, a local newspaper reporter then filed requests for the video footage. The reporter claimed the video was a public record. A trial judge in Humboldt County agreed and ordered the City of Eureka to release the video. The City appealed the judge’s order, arguing the video was part of Laird’s confidential personnel file and could only be released through the procedures required by the Pitchess statutes.

The Court of Appeal rejected the City’s argument and affirmed the order to release the video. The Court ruled that because the video was recorded before any investigation had begun, it was an independent record and was not part of Laird’s personnel file. Because the video was merely considered during the investigation and was not generated by it, the video was not a record related to “employee advancement, appraisal, or discipline.”

The Court relied on the major decision by the California Supreme Court two years ago in Long Beach Police Officers Association v. City of Long Beach (2014). In that case, the Supreme Court ruled that Long Beach could not withhold the identity of a police officer who had been involved in a shooting, but must disclose it to requesting newspapers. Here, the Court of Appeal ruled that dash camera footage is similar to an officer’s identity and must be released to the public.

The Court of Appeal’s decision is a serious setback to the privacy interests of peace officers across the state. Under the ruling, potentially all dash camera and body camera footage could be subject to public release.

California Supreme Court Finds Limited Exception to Employees' Access to Supervisor Notes Under FFBOR

On August 24, 2015, the California Supreme Court issued a decision in Poole v. Orange County Fire Authority. The Court held Government Code section 3255 did not compel the County to provide a firefighter the opportunity to review and respond to a supervisor's personal notes regarding the firefighters work performance if the notes were not used for a personnel purpose. The supervisor did not share the notes or make them available to anyone with authority to take adverse disciplinary action against the firefighter. For these reasons, the Court held the supervisor's notes did not constitute a file "used for any personnel purposes by his or her employer."

Under the Firefighters Procedural Bill of Rights Act ("FFBOR"), a firefighter has the right to review and respond to any negative comment that is "entered in his or her personnel file, or any other file used for any personnel purpose." In Poole, a supervisor maintained raw notes on his subordinates. The notes documented factual occurrences for his reference when writing employees' annual reviews. Some of the occurrences in the supervisor's notes described instances where the employees had failed to complete assigned duties. The supervisor did not make these notes available to anyone with authority to take adverse action against the firefighter and not all of the notes were documented in annual performance reviews. The Court considered the narrow question of whether the FFBOR required the supervisor to provide employees the opportunity to review and respond to negative comments in his notes that were not included in the employees' annual performance evaluations or performance improvement plans.

It is well established that employers must provide firefighters and public safety officers an opportunity to review and respond to negative comments entered into files used for personnel purposes. For example, in Venegas the appellate court concluded that an index card maintained by internal affairs documenting all complaints against an officer constituted a file "used for... personnel purposes," because it would be available to those responsible for disciplinary action. In addition, in County of Riverside, the county was required to disclose to a police officer adverse comments in a file containing the results of a background investigation the county used to determine whether to continue to employ the officer. And in Aguilar, the appellate court held an officer was entitled to review and respond to an uninvestigated citizen's complaint placed in a confidential investigative file. These cases remain authoritative in compelling employers to provide firefighters and public safety officers the opportunity to review and respond to adverse comments placed in files "used for... personnel purposes."

The Court distinguished this case from other cases interpreting similar statutes on the basis that the supervisor's notes were not available to anyone making personnel decisions in the future. Based on a unique set of circumstances, this case clarified FFBOR protections are not triggered by a supervisor's private notes that were not used for any personnel action.

California Supreme Court Clarifies Pitchess Process Protects Officer Privacy

On July 6, 2015, the California Supreme Court reversed the Court of Appeal to protect the confidentiality of peace officers' personnel files.  In People v. The Superior Court of San Francisco County, the Supreme Court held District Attorneys offices must file Pitchess motions to review personnel files, ending attempts by some DAs offices to have unfettered access to officers' private information.

Evidence Code section 1043 and 1045 regulate access to peace officers' personnel files in California. The sections make peace officers' personnel files preemptively confidential, but permit parties that have a reason to believe the personnel records contain information material to a case to file what's typically called a Pitchess motion, to gain access to relevant parts of a file.  If party makes a preliminary showing, a judge reviews potentially relevant portions of the file and decides if they are material to the case and must be turned over.

This process applies in criminal cases, but also civil and administrative cases.  In criminal cases, another feature of this process is a prosecutor's duties under Brady v. Maryland.  Under that case, a prosecutor must disclose information that may help a criminal defendant in court.

In San Francisco, the Police Department had a Brady policy that took into account officer privacy and prosecutors' Brady obligations.  Under the policy, the Department had a Brady committee consider potential Brady issues, permitted comment by the affected employee, and made a recommendation to Chief, who decided whether to inform the DA.  The DA then had to file a Pitchess motion to access relevant portions of the officer's file.

But recently, some DAs claimed their Brady duty is so broad that they are entitled to unfettered access to peace officers' personnel files so they can decide what to give criminal defendants.  In this case, the trial court and the Court of Appeal agreed with this conclusion.

The Court of Appeal held prosecutors could access peace officer personnel records without filing a Pitchess motion for two reasons.  First, it concluded disclosing peace officers’ personnel records to the DA did not count as a “disclosure” within the meaning of the statute.  Second, the Court interpreted an exception to the Pitchess process about “investigations” to apply any time a criminal defendant filed a Pitchess motion.  The Supreme Court disagreed with this reasoning.

The Supreme Court noted the Pitchess process balances officers’ privacy with the needs of prosecutors to perform their duties under Brady.  It found the limited exception allowing direct access showed the Legislature did not intend DAs to have direct access under normal circumstances.  Second, Supreme Court disagreed the argument a Pitchess motion triggers a DA’s right to investigate an officer.  The Court defended peace officers noting, “A police officer does not become the target of an investigation merely by being a witness in a criminal case.”  The Supreme Court explained the exception applied, instead, to cases where the DA needs to do a criminal investigation of the officer’s own conduct.

Thus, the Supreme Court held, "the prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records."

Court of Appeal Ruling Requires Prosecutors to Review Confidential Police Personnel Files

On August 11, 2014, the California Court of Appeal held in People v. Superior Court prosecutors must review police officers' confidential personnel files to identify information relevant to the defense in a criminal case. This decision places the burden of identifying Brady information on the prosecutor. In addition, it narrows confidentiality protections for officers' personnel files.

This case delivered a blow to officers' confidentiality interests in their personnel records. In Brady, the U.S. Supreme Court announced a rule requiring the prosecution to disclose evidence that is favorable and 'material' to the defense. Such evidence includes past alleged officer misconduct contained in confidential personnel files. California state law provides protections against disclosure of such information in civil or criminal proceedings by court order. Before disclosure, the court must conduct a private 'in camera' review of the officer's personnel file to determine if the information must be provided to the defense.

Public agencies employing peace officers are generally responsible for reviewing personnel files for possible Brady information relevant to the defense. This case places the burden of review on the prosecution.

The Court divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify information subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense. The Court held Penal Code section 832.7(a) does not preclude prosecutorial access to officer personnel files for Brady purposes. The Court noted that because police are considered part of the "prosecution team," the two agencies can share personnel files without violating personnel file confidentiality laws.

This case has far ranging implications for law enforcement. Unless overturned, prosecutors will be allowed to routinely inspect peace officer's personnel records for Brady purposes and be required to file a Pitchess motion to have Brady material disclosed to the defense. This game changing decision will result in unnecessary disclosures to the prosecution and deprive officers of the ability to challenge. The court decidedly shifted the balancing of interests against officers' privacy rights. Look for this decision to trigger revisions to your local Brady policy. Request to participate in any policy revisions.

Court of Appeal Blocks Criminal's Attempt to Bypass Pitchess

In People v. Davis (Cal. Ct. App., June 12, 2014) 14 Cal. Daily Op. Serv. 6496, an appeals court held a convicted criminal could not bypass the Pitchess process on appeal.  The defendant attempted to get access to a peace officer's personnel file to try to claim the court made a mistake when it did not grant a Pitchess motion before trial.  The court decided he did not have a right to independent appellate review concerning a post-judgment Brady order. 

Instead, the court decided even in cases where a defendant can get discovery after a trial, he must comply with the Pitchess v. Superior Court, procedure and requirements.  The requirements include showing that the discovery sought is material to pending litigation.

Supreme Court to Resolve What Counts As a Personnel File

Government Code section 3255 requires employers give firefighters an opportunity to review any adverse comments before they can be placed in the firefighters "personnel file, or any other file used for any personnel purposes by his or her employer."  Likewise, Government Code section 3256.5 give firefighters the right to inspect their files and request corrections.  But, some employers have tried to skirt around the law by making adverse comments in secret files or other places.  Now the California Supreme Court will weigh in on what constitutes a personnel file under FFOBR when it hears the appeal of Poole v. Orange County Fire Authority.

In Poole v. Orange County Fire Authority, the Court of Appeal ruled firefighters have a right under FFBOR to review and respond to personnel comments entered into "daily logs," even though the employer claimed they were not put in the employee's "personnel file."

The case is about a firefighter with the Orange County Fire Authority (OCFA). OFCA keeps personnel files at OFCA's headquarters in Irvine, but a fire captain kept a separate file at the fire station on each of the firefighters he supervised, which he called "daily logs." He used in the preparation of yearly evaluations and did not give firefighters an opportunity to review them before recording them.

When the firefighter found out about the "daily logs," he requested management delete them pursuant to section 3256.5(c).  However, OFCA refused, claiming they were not subject to FFBOR because “while the notes were intended to be used for personnel purposes, they were never ‘entered’ into any file.” The Court of Appeal disagreed, noting firefighters should be able to review the daily logs because the purpose of the law is to “facilitate the firefighter’s ability to respond to adverse comments potentially affecting the firefighters employment status.”

The California Supreme Court granted review on February 26, 2014.

Court: No Right to Pre-Interview Access to IA File

In Association of Orange County Deputy Sheriffs v. County of Orange, (June 12, 2013) G047167, the Court of Appeal ruled the County did not have to meet and confer with the DSA before it banned deputies from reviewing IA files before their IA interviews.  In Orange County, there was a longstanding practice where peace officers being IA'd could review the IA file before their interview.  Then, in 2011, the Sheriff banned anyone under investigation from reviewing the file before their IA interview.  The DSA sued, arguing the County had to meet and confer before making this kind of change to a past practice.

The Court decided the County did not have to meet and confer of this kind of a change to a past practice.  The Court reasoned that restricting access to IA files before the IA interview is not a "working condition" under the MMBA.  The Court looked to two other cases in reaching its conclusion.  In Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, the California Supreme Court ruled employers do not have to give officers pre-interview discovery.  Similarly, in Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, the court ruled law enforcement agencies can ban so-called "huddling" between counsel and officers after critical incidents.  In this case, the Court said pre-interview access to an IA file was like pre-interview discovery and the no "huddling" rule.  As a result, the Court decided it is not a "working condition."

The Court did agree the meet and confer requirement extends to changes in existing and acknowledged past practices, even if they are not formalized in a written agreement or rule.  However, the Court decided agencies only have to meet and confer if the past practice counts as wages, hours, or terms and conditions of employment.  Since the Court decided pre-interview access to the IA file did not count as a working condition under the MMBA, it ruled meet and confer rules did not apply.  Still, the Court left the door open to associations and agencies including these requirements in their MOUs if they chose to.

Court: Pitchess Not Required for Peace Officer Personnel Records in Federal Court Case

In Pierce v. County of Sierra (E.D. Cal., June 3, 2013, 2:11-CV-2280 GEB AC) 2013 WL 2421710, a Northern California federal court ruled plaintiffs do not have to use the Pitchess process to get a peace officer's personnel records related in a federal lawsuit.  The case started when a deputy sheriff allegedly hit a motorcyclist with his patrol car.  The plaintiff sued the deputy and the county for negligence.

Then, the plaintiff sent a discovery request for parts of the deputy's personnel file to find paperwork related to the deputy's initial hire, find out about drug and alcohol testing, and the IA investigation related to the crash.  The County objected that the records were confidential peace officer personnel records under California Penal Code section 832.7.  The Pitchess process that limits disclosure of peace officer personnel records is the product of statute in California.  In many states, officers do not have these protections and their personnel records are more easily obtainable.

The Court decided the California Pitchess process did not apply in the federal action because the Federal Rules of Civil Procedure supersede the Pitchess process.  Instead, the Court examined whether there was good cause to turn over the documents.  The Court decided there was good cause because the records could shed light on whether the deputy was at fault and whether the County was negligent.  Accordingly, the Court ordered the County to release the records, but ordered the parties to work out a protective order to limit the exposure of the deputy's records.

Court of Appeal Gives Defendants Limited Access to Witness Statements in IA Files

In Rezek v. Superior Court (2012) 206 Cal. App. 4th 633, the California Court of Appeal, Fourth District, ruled witnesses statements in peace officers personnel files can be turned over to defendants in criminal cases under some circumstances. In this case, officers arrested a defendant for obstruction of justice. The defendant also filed a citizen complaint against the officers. IA investigated the complaint and took statements from witnesses. The DA charged the defendant who then filed a Pitchess motion for the witness statements.

The Fourth District decided defendants can get those statements if they submit a supporting declaration proposing a defense and articulate how the requested discovery may be admissible in support of the proposed defense, or how the requested discovery may lead to such evidence. The court disagreed with the city’s argument that Penal Code section 1045.1, which requires the prosecutor to disclose to the defense relevant witness statements, is the exclusive means by which a defendant may obtain such statements.

Court of Appeal Rules Administrative Hearing Officers May Hear Pitchess Motions in Peace Officer Discipline Cases

In Riverside County Sheriff’s Department v. Jan Stiglitz (September 28, 2012) 2012 WL 4466333, the Court of Appeal decided peace officers can obtain Pitchess discovery in an administrative hearing provided under POBR. The case started after the Riverside County Sheriff's Department fired a correctional deputy for falsifying her time records. The officer appealed her termination. She asserted that the penalty of termination was disproportionate. She asked the hearing officer for discovery of disciplinary records of other Department personnel who had been investigated or disciplined for similar misconduct. After the hearing officer granted the request, the Department went to court to stop it.

The Court ruled Pitchess discovery is available in a Section 3304(b) administrative hearing if it is relevant. The Court reasoned that POBR entitles officers to a full evidentiary hearing, including relevant discovery. The Court decided that though the Evidence Code sections codifying the Pitchess process were ambiguous, they do not preclude administrative hearing officers from considering requests for peace officers' personnel files under some circumstances.

Sacramento County LEMA Vindicates Right to Investigate and File Grievances Without Fear of Retaliation

Sacramento County Law Enforcement Managers Association (LEMA) President Michael Ziegler obtained a settlement protecting the right of union officers to investigate and pursue unpopular grievances in his lawsuit against former-Sheriff John McGinness and the County of Sacramento.

In March 2010, Ziegler filed a grievance on behalf of himself, LEMA, and LEMA’s members alleging violations of Sheriff’s Office policies relating to the handling of FEO files of a LEMA member running for sheriff. On the same day Ziegler appealed the denial of the grievance, it served Ziegler with a notice of interrogation. The notice said Ziegler was “suspected of misconduct” and indicated that the interrogation was related to Ziegler’s communications with a witness during his investigation of LEMA’s grievance. Between April 2010 and August 2010, Ziegler received three more notices of interrogation. Ziegler objected to the investigation.

All four notices told Ziegler he was prohibited from discussing the matter with anyone other than his representative. As a result, Ziegler was prohibited from discussing the substance of the investigation with LEMA’s board of director or members. Ziegler submitted to interrogation on August 18, 2010 under threat of discipline for insubordination.

Ziegler filed a petition for writ of mandate against the County of Sacramento and then-Sheriff John McGinness on August 10, 2010.   Ziegler’s petition alleges the County violated the Meyers-Milias-Brown Act by opening a retaliatory investigation against Ziegler for his efforts to investigate the improper handling of LEMA member’s personnel records. Ziegler also claimed the Sheriff’s actions impermissibly interfered with his representation of his members. The petition sought, among other things, a writ compelling the County to cease and desist from unlawfully retaliating against Ziegler and expunge all records of its investigation of Ziegler and a determination that the County willfully and maliciously violated the MMBA.

With encouragement from the Court, the parties participated in mediation and reached a global resolution of the suit. Under the settlement all references to the disciplinary investigation of Ziegler will be removed from his files and the County paid all mediation costs and Ziegler’s attorney fees for the mediation. The County is also required to email every member of LEMA a copy of the agreement, which includes the County’s acknowledgement that (1) “The investigation of an employee representative over engaging in concerted labor activity, including but not limited to the investigation of a potential grievance or the filing of a grievance is unlawful” and (2) “Employee representatives shall not be subject to the threat of discipline for exercising rights under the MMBA or any grievance process.”

Mastagni Law attorneys David E. Mastagni and Isaac S. Stevens represented LEMA President Mike Ziegler is the matter.

Court Upholds Peace Officers' Right to Sue Over Dissemination of Personnel Records

In Olivera et al. v. Siemens, et al., Case No. S-CV-0029390, the Placer County Superior Court upheld peace officers' right to seek redress for dissemination of their personnel records, overruling a city's demurrer.  The officers filed suit for invasion of privacy after a former IA sergeant took and distributed a copy of their IA files to officers at another agency.  The city then filed a demurrer, challenging the ability of peace officers to bring a civil suit over disclosure of their personnel files. The Court found the officers could proceed with their claims for invasion of privacy and intrusion into private affairs, noting the alleged dissemination of their personnel records was "sufficiently outrageous" to trigger liability under Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272.

The Court also upheld the officers' right to proceed with their claims on intentional infliction of emotion distress, negligent infliction of emotion distress, and injunctive relief ordering the defendants to retrieve and destroy unlawfully disseminated records.  The plaintiffs are represented in the matter by Mastagni Law attorneys David E. Mastagni, James B. Carr and Isaac S. Stevens. 

Court of Appeal Limits Exposure of Retirees' Private Information

In Sonoma County Employees’ Retirement Association v. Superior Court (August 26, 2011, A130659) 2011 WL 3795212, the Court of Appeal found Sonoma County’s retirement system did not have to disclose the ages of retirees. The case is the latest in a series of cases where newspapers have used the Public Records Act to identity retirees by name and pension amount. In reaching its decision, the Court focused on language exempting “individual records of members” from disclosure. The retirement system argued this language protected retirees' names, but the Court found the public’s interest in knowing the names and pension amounts of retirees outweighed their privacy interests. However, the court drew the line at disclosure of the retirees' ages, finding retirees' dates of birth and ages at retirement are protected from disclosure under the statute.

Court: POBR Guarantees Right to See Complaints, Not Just Summaries

 In Matthew Medina v. State of California, Kasey C. Clark, Chief Counsel for the California Statewide Law Enforcement Association (CSLEA), scored a major victory for peace officers statewide.  The Superior Court case establishes POBR gives officers access to actual complaints against them, not just summaries or abstracts.  Prior to the Court's decision, some law enforcement departments refused to provide officers with actual complaints, providing instead brisk summaries which sanitized complaints often littered with anti-officer rhetoric and personal biases.

In its ruling, the Court stated unambiguously "the right to read the adverse comment [in a personnel file] requires disclosure of the actual adverse comments [] not merely the general nature of the comments." The ruling affirms Sacramento Police Officers Association v. Venegas, the leading case in the Court of Appeal to address peace officers' right of access to their personnel files.  Importantly, the Medina decision joined Venegas in recognizing "some might view a shield of confidentiality as a license to make false allegations of police misconduct."