CALPELRA Alert:  Disclosing Police Personnel Files
Last week the First District Court of Appeal ruled that the District Attorney must be given access to the entire personnel file of police officers involved in criminal prosecutions.[1]  A broader reading of the ruling suggests that it requires police departments to provide District Attorneys (and anyone else on the “prosecution team”) access to police officer personnel files, at any time, regardless of whether a criminal prosecution is pending.  This access appears to expand the well-settled interpretation of Cal. Penal Code Section 832.7(a) which, until now, has allowed District Attorneys access to personnel files only when a criminal prosecution is pending or if an officer is being investigated for misconduct.

In Brady v. Maryland (1963) 373 U.S. 83, the United States Supreme Court ruled that the prosecution must disclose all evidence that is favorable and “material” to the defense.  In Pitchess v. Superior Court (1974) 11 Cal.3d 531, the California Supreme Court held that criminal defendants have a right to discover citizen complaints of misconduct found in peace officer personnel files.  The Legislature codified Pitchess into Cal. Penal Code Sections 832.7 and 832.8, which define peace officer personnel records and declare them confidential, and Cal. Evidence Code Sections 1043 and 1045.  Section 1045 provides that, once the court finds “good cause” under section 1043, the court then examines the records in chambers to determine what information must be disclosed to the prosecution and the defense.   Generally, the only information ordered to be disclosed is the name, address and phone number of any prior complainants, and the dates of and witnesses to any relevant incidents.

In Johnson, the San Francisco District Attorney made a standard Pitchess motion requesting the Court conduct an in camera review of officer personnel files, and then disclose any Brady material to the District Attorney (“DA”) and the defense, subject to a protective order.[2]  Defendant Johnson filed a similar motion, also requesting that the Court review the files for Brady material and make the same disclosures.[3]

The Court denied the DA’s motion, finding that the DA had not made a sufficient showing of Brady materiality to justify an in camera review.  Instead, the Court found that the DA had a legal obligation to disclose all Brady material to the defense and, in order to allow the DA to meet that obligation, the Police Department was required to disclose the entire file to the DA.  The DA should then review the file, and then – when it would certainly be able to meet the materiality standard – petition the Court for an in camera review and to disclose any Brady material to the defense.  The Court ordered the Police Department to disclose the files to the DA, and the DA petitioned for review.

Substantively, the Court of Appeal agreed with the trial court: disclosing the entire file to the DA is permitted under Section 832.7; and a Pitchess motion is only required before the DA then discloses Brady material to the defense.

The Court divided Brady compliance into two “analytically distinct stages”: Identification of the material to be disclosed; and disclosure to the defense.  The identification stage consists of a preliminary review of the personnel file.  The court reasoned that this preliminary review is not “discovery” or “disclosure,” as contemplated by Section 832.7(a), because the DA is acting as head of the prosecution team, rather than an outside party or litigator.  The inspection is thus akin to an agency’s internal review of its own files with its attorney, rather than formal discovery.  See, Michael v. Gates (1995) 38 Cal.App.4th 737, 744.  The Pitchess statutes, the court noted, were not intended to, and do not, “create substantive or procedural obstacles to a police agency’s review of its own files.”  Id., at 9, citing Gates, supra, at 745.  For this same reason – the DA and the police department constitute a single prosecutorial “team” – the Court found that allowing the DA access to the file does not breach the confidentiality provision of Section 832.7(a). Accordingly, this preliminary review is not subject to Section 832.7(a).

In the disclosure phase, however, because the files are being disclosed to the defense, and in the midst of litigation, the confidentiality provisions of Section 832.7(a) do apply.  Accordingly, the prosecution must file a noticed motion, pursuant to Section 1034, asking the court to review the portions of the file that the prosecution has determined are “material,” and then disclose those portions to the defense, along with an appropriate protective order.  The court found that this procedure is consistent with the requirements of Pitchess, and appropriately protects the officer’s privacy interest in his or her file.

The Court’s ruling leaves several open questions.  In particular, while the Court is clear that, when criminal charges have been brought against a defendant, the DA is permitted to review the personnel files of the involved officers, without a Pitchess motion, and without violating Section 832.7(a), what if there is not a criminal case pending?  This ruling appears to allow the DA access to the file at any time, regardless of whether the officer is involved in a pending criminal prosecution.  Again, this position seems to be an expansion of the well-established interpretation of Section 832.7(a) that the DA is only given access to personnel files as part of a criminal investigation or an investigation into misconduct by the officer.

In the end, it could be that, despite what is certainly a change in the interpretation of the law, the practical impact of the Court’s ruling in Johnson, at least for some agencies, will be minor.  For those agencies such as San Francisco, which already provide Brady information to the District Attorney’s office without a Pitchess motion, this ruling could simply result in logistical changes to the disclosure and review process.
 
[1] People v. Superior Court of San Francisco County (Daryl Lee Johnson, Real Party in Interest), 2014 WL 3896138.
[2] San Francisco has adopted, as have many agencies, a “Brady list” procedure, wherein the Police Department informs the DA’s office if an officer’s personnel file contains information that may be subject to disclosure under Brady.  Here, the Police Department had informed the DA that both officers’ files contained such information.
[3] In the alternative, Johnson requested the Court declare section 832.7(a) unconstitutional or dismiss the case due to the prosecution’s failure to comply with Brady. 
This Alert summarizes a significant recent court case, arbitration decision, legislation, or other important information.  The Alert format is not intended as a periodic review of all significant cases, but instead provides labor relations practitioners with key information for immediate guidance in day-to-day activities.
CALPELRA President:  G. Scott Miller, Ventura Port District
Alert No. 14-21,  Author:  Samantha W. Zutler, Burke, Williams & Sorensen
The information contained in this publication is not intended to constitute professional counsel or a legal opinion. Although we consider the information to be timely and accurate, there is no substitute for personal counsel with a professional. Provided with specific facts, your attorney can fashion a solution sensitive to your needs.
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