Principles for Public Safety Employment

 Investigations or proceedings concerning the conduct of police officers or a police agency conducted by: 1) a grand jury, 2) a district attorney's office, or 3) the Attorney General's office. The Court of Appeal recently held that a grand jury is not required to show good cause. 410  An employer may release information regarding officer- involved shootings, serious use of force and sustained findings of sexual assault or dishonesty related to an investigation. 411  An employer may release information regarding sustained findings (i) involving unreasonable or excessive force; (ii) that an officer failed to intervene against another officer using unreasonable or excessive force; and (iii) findings of unlawful arrests and unlawful searches. 412  Records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct involving prejudice or discrimination on the basis of specified protected classes. 413

A district attorney is not entitled to carte blanche access to peace officer personnel records. Penal Code section 832.7(a) only exempts a district attorney from filing a noticed motion where an officer is under criminal investigation for conduct committed while he/she was employed as a peace officer, whether that conduct was committed on or off duty. 414 Moreover, an officer cannot avoid release of records by resigning. If an officer resigns before an investigation is complete, then the records are subject to disclosure, including records regarding sustained findings, as noted above. c. Caution: Improper Disclosure May Constitute a Crime According to an Attorney General opinion, the disclosure of peace officer personnel records in violation of Penal Code section 832.7 may constitute a crime under the terms of Government Code section 1222 if the conditions of the latter statute are met. 415 In 2021, the California Court Appeal found that a County’s disclosure of its investigator’s confidential personnel records without a Pitchess motion was punishable as a misdemeanor. 416 . Accordingly, an agency must file a Pitchess motion to use and disclose its own peace officer personnel records in litigation or administrative hearings. d. California Public Records Act Requests Peace officer personnel records are generally not subject to disclosure under the California Public Records Act (“CPRA”), Government Code section 6250, et seq. 417 But, in several decisions, the California Supreme Court established that the confidentiality of peace officer personnel records is somewhat limited. In International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (Contra Costa Newspapers, Inc.) , a newspaper had submitted a CPRA request to the City of Oakland for the names, job titles, and gross salaries of all City employees who earned $100,000 or more in the fiscal year of 2003 2004, including the employees who earned a lower base salary but were paid $100,000 or more because of overtime pay. 418 The unions argued that this information fell under the CPRA’s exemption for personnel or similar files, the disclosure of which would constitute an unwarranted

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 122