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High court denies access to police disciplinary records

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NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Freedom of Information   ·   Sep. 14, 2006

NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Freedom of Information   ·   Sep. 14, 2006

High court denies access to police disciplinary records

  • The state Supreme Court held that information related to law enforcement personnel involved in disciplinary cases is not open to the public.

Sep. 14, 2006  ·   Public access to records used in police disciplinary proceedings will be cut off after a recent decision by the California Supreme Court.

The high court’s Aug. 31st ruling means that the County of San Diego Civil Service Commission does not have to give newspaper reporters tape recordings and documents related to the administrative hearing of a local police officer who had appealed a termination notice.

In the long term, the ruling will likely thwart the public’s ability to access administrative appeals by law enforcement officers who have been disciplined, including such basic information as the name of the officer involved.

In a 6-1 decision, the Supreme Court held that the records are exempt from disclosure under the California Public Records Act. The court, in an opinion written by Justice Ming Chen, seized on a statute that exempts from disclosure law enforcement personnel records held by the officer’s “employment agency.”

The court interpreted other state laws to determine that the civil service commission, which hears employment disputes of public employees, was an “employment agency” for purposes of the disclosure laws.

Justice Kathryn Werdegar, the lone dissenter in the case, said the majority’s decision “overvalues the deputy’s interest in privacy, undervalues the public’s interest in disclosure, and ultimately fails to implement the Legislature’s careful balance of the competing concerns in this area.”

The majority, however, was unconvinced by the newspaper’s arguments, and said its reading of the law best reflected the intent of the California State Legislature. “Having reviewed the statutory language and the legislative history, we find no evidence the Legislature intended that one officer’s privacy rights would be less protected than another’s simply because his or her employer, for whatever reason, conducts administrative appeals using an entity like the commission,” the court wrote.

Attorney Guylyn Cummins, who represented The San Diego Union-Tribune, which sought the records in this case, said it was “judicially dishonest” for the court to call the civil service commission an employment agency.

The Supreme Court’s ruling overturns the earlier decision of the Court of Appeal, which had ruled that although the civil service commission had conducted the disciplinary appeal, it was not the officer’s employing agency.

Cummins said the best hope for recapturing information about official proceedings regarding potential police misconduct is to ask the California Legislature to change state law. But such a move will be difficult, she conceded, since it will pit media organizations against the well-organized police union lobbyists.

Duke University School of Law Professor Erwin Chemerinsky, who filed a friend-of-the-court brief in the case, criticized the court’s decision in a Friday column for the Los Angeles Daily Journal.

“As a matter of statutory interpretation, the court’s decision is wrong because it failed to follow the plain language of the law. As a matter of legislative and social policy the court’s ruling is tragic because it denies the press and the public crucial information essential to police accountability,” Chemerinsky wrote.

Chemerinsky echoed the call for the state Legislature to revisit the court’s ruling: “All of us would prefer that our mistakes, and allegations about them, stay secret. But the Legislature must put the public’s interest in police accountability over the officers’ desire for avoiding embarrassment.”

(The Copley Press Inc. v. Superior Court, Media Counsel: Guylyn R. Cummins, Sheppard, Mullin, Richter & Hampton LLP, San Diego)NW

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