Privacy Issues in the Workplace

Code of Civil Procedure section 1985.3(a)(3) provides that neither (a) state or local agencies as defined by Government Code section 7465 nor (b) California State Courts or entities created under Article VI of the California Constitution fall under the definition of “subpoenaing party.” However, one court has held that a county had to provide a notice to consumer before it subpoenaed a plaintiff’s medical records. 409 We thus recommend that state and local agencies comply with the notice to consumer requirements to avoid any issues that may arise if the affected individual challenges the discovery request.

LCW Practice Advisor

5. D ISCOVERY OF P OLICE R ECORDS Police officers’ personnel files are afforded greater protection than other public employees’ files are given. In Pitchess v. Superior Court 410 the California Supreme Court explored the limits of discovery and disclosure of police personnel records. The Court held that a Sheriff Department's internal affairs investigation files of excessive force citizen complaints were discoverable. The defendant had shown by affidavit that the records sought were relevant to the criminal defendant’s self-defense claim. The Legislature has codified and expanded upon the Pitchess principles in Penal Code sections 832.5, 832.7, 832.8, and Evidence Code Sections 1043 through 1047. Penal Code section 832.7 provides for confidentiality of police officer personnel records and records of citizen complaints. The records are discoverable only pursuant to Evidence Code section 1043 which requires the filing of a written motion with statutory notice (at least 21 days). The motion required under Evidence Code section 1043 has come to be called a “ Pitchess ” motion, and the procedure is applicable in both criminal and civil matters. An attorney should be consulted immediately upon receipt of a Pitchess motion. The declarations supporting the motion must demonstrate that the information sought from the police officer’s records will facilitate the ascertainment of facts and a fair trial. 411 The allegations may be made on “information and belief” with reasonable particularity as long as the agency is not claiming the records are protected by an official privilege. 412 Evidence Code section 1045(b) excludes the following records from discovery:



Complaints more than 5 years old;

 Conclusions of any officer investigating a complaint; and

 Facts so remote as to make disclosure of little or no practical benefit.

This statutory scheme carefully balances the peace officer’s claim to confidentiality and the criminal defendant’s equally compelling interest in all information pertinent to the defense. 413

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 122