Principles for Public Safety Employment

the custodian must be prepared to state for the record which documents the custodian did not bring and why those documents are irrelevant or nonresponsive to the request. 443 e. What Information is Subject to Disclosure? i. Five Year Rule Evidence Code section 1045(b)(1) provides that complaints of misconduct that are more than five years old shall not be disclosed. However, in City of Los Angeles v. Superior Court (Brandon) , the California Supreme Court held that, in some circumstances, the five year rule may be unconstitutional. 444 ii. Findings & Conclusions of Investigating Officer Pursuant to Evidence Code section 1045(b)(2), the conclusions of any officer investigating a complaint filed pursuant to Penal Code Section 832.5 are excluded from disclosure. iii. Discipline Imposed Although the findings and conclusions of the investigation are excluded from disclosure, the agency must disclose whether, and what type of, discipline was imposed on the officer that was the subject of the complaint. 445 iv. Remote Facts Evidence Code section 1045(b)(3) provides that remote facts, which have little or no practical benefit, are excluded from disclosure. v. Psychological Records The psychological records of an officer are often requested in “Pitchess” motions. In order for the defendant to obtain disclosure of psychological records, the officer’s mental or emotional condition must be at issue in the case. In addition, the officer must have been shown to be a danger to himself or a danger to others. 446 vi. Prior Arrest Reports A defendant may seek disclosure of prior arrest reports made by the officer. However, where the peace officer is a victim of Penal Code sections 148, 242, or 243, the defendant is not entitled to the arrest report. 447 vii. Criminal History The California Supreme Court is likely to decide whether a defendant is entitled to compel the prosecutor or agency to “run a rap sheet,” or compile a criminal history on the officer, that is not in its possession. The Court of Appeal held in People v. Coleman that a prosecutor need not run a rap sheet in response to a Pitchess motion, but the Supreme Court has granted review, and therefore the Court of Appeal’s opinion is not citable authority. 448 viii. Sanctions for Non-Disclosure If, despite an agency’s efforts to protect information, the court orders disclosure and the custodian refuses to reveal the material, the court may order sanctions. The various sanctions

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