Hidden Behind a Badge?

A California high court decision has slammed the door on access to police disciplinary records and prompted cities to close hearings to the media.

From the Winter 2007 issue of The News Media & The Law, page 26.

By Nathan Winegar

In January, a Los Angeles police disciplinary board ruled officer Steven Garcia was justified in shooting to death a 13-year-old boy who allegedly tried to back over Garcia with a stolen car after a chase two years ago.

This finding outraged some in the community and contradicted the earlier finding of the civilian Police Commission, which said the officer should face discipline for the shooting of Devin Brown.

Exacerbating this outrage, according to city leaders who spoke out after the case, was that the disciplinary board’s hearing was conducted entirely in secret.

Such is the closed-door world of police discipline in California, where a wrenching debate has erupted over the use of a state high court decision curtailing access to documents generated in police misconduct hearings to cut off access to a host of other information about individual officers.

Journalists covering hot-button issues such as police use of force have found their jobs much more difficult since August, when the California Supreme Court handed down Copley Press v. County of San Diego. That case denied The San Diego Union-Tribune access to documents related to a police officer’s administrative hearing appealing his termination. The court ruled police officers had a privacy right to documents generated during an administrative misconduct hearing conducted by an independent county commission.

Matt Lait covers police for the Los Angeles Times and said his reporting has changed dramatically since Copley.

“It is just going to make reporting on law enforcement much more difficult and it is going to be much more difficult for the public to hold officers involved in misconduct accountable,” Lait said.

Lait, along with colleague Scott Glover, broke the news of the LAPD board of rights’ secret hearing exonerating Garcia.

In a pre-Copley world, Lait would have had access to all but a small portion of an LAPD board of rights hearing. Reporters could have attended the evidentiary portion of the hearing and would have heard a full explanation of the board’s rationale after it reached a decision. Only a small portion of the board’s hearing related to a discussion of the officer’s employment history and personnel file would have been closed.

Post-Copley, however, the LAPD has shut the media out of its disciplinary hearings, and Lait and Glover had to rely on confidential sources to learn a decision had even been reached. It is these leaks of what was once widely available information that will become the lifeblood of reporting on police discipline, Lait said.

“We were able to get this story because of the sources we have,” Lait said. “There are people that fear disclosing such information for personal reasons, their job among them. There are others who feel this type of information should be out, and may be agreeable to getting it out there in some way.”

Even with their inside sources, all Lait and Glover could get was the decision —
none of the evidence the board relied on or board’s rationale for its decision was released. Later, Officer Garcia authorized the release of a portion of the hearing dealing with the board’s rationale, but the majority of the hearing transcript remains secret.

This restricted public access is the new reality after Copley, said Jim Newton, city-county bureau chief for the Times and Lait’s and Glover’s editor.

“That leaves all of the authority in the hands of the officer, not in the public,” Newton said.

‘Competing concerns’

The dispute that led to the August decision arose after the Union-Tribune, which is owned by Copley Press, was denied access to the administrative hearing of a sheriff’s deputy.

The county sheriff’s office fired the deputy, whose identity was concealed from the Union-Tribune, after he failed to arrest a suspect in a domestic violence incident despite the presence of probable cause.

Though thwarted from witnessing the hearing live, the newspaper followed the story and asked the County of San Diego Civil Service Commission after the fact for various pieces of information produced at the hearing. The commission declined most of the newspaper’s request, including the release of the deputy’s name.

The Union-Tribune sued, seeking access to virtually all documents generated in the appeal, the deputy’s identity and all audiotapes of the hearing. Further, the paper sought an injunction preventing the commission from blocking future public access to these types of police disciplinary appeals.

The newspaper argued that administrative hearings were not the type of proceeding in which police officers could assert a right of privacy and that it had a constitutional and common law right of access to the records in question. In addition, the paper pointed out that state law protects police officers’ privacy interests only in personnel files maintained by their employing agency and the records in question would not qualify for protection because the commission does not employ any police officers and maintains disciplinary records independent of any officers’ personnel files.

The high court rejected all of the newspaper’s arguments. It said prior court decisions mandated that an officer’s right to privacy extended beyond civil and criminal cases into this type of nonjudicial administrative hearing.

The court also determined there was no legal basis for the paper’s assertion of a First Amendment right to access these type of administrative hearing records because such a right only extends to criminal proceedings.

More significantly, it ruled that the commission qualified as an employing agency of the officer, overturning the intermediate court’s finding that the records of a commission independent of the department the officer works for could not be kept secret under the police officer privacy statute in question because that law unambiguously refers to those documents maintained by an officer’s “employing agency.”

“Because the Commission, a department of the County, has been designated to provide the appeal that the officer’s employer is required by law to provide in connection with taking punitive action, it is reasonable to conclude that for purposes of applying the relevant statutes in this case, the Commission is functioning as part of ‘the employing agency,'” the Supreme Court wrote.

Later it added, “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 majority decision sparked a strong reaction from the one dissenter, Justice Kathryn Werdegar, who wrote that “the majority 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.”

Hurdles to access

Though Copley dealt with access to documents produced in a hearing before government employees, agencies around California have used the court’s reasoning to close off access to a host of information about police officers, making public oversight fraught with hurdles. Some departments have shut down public access to the hearings themselves; others have even refused to release agendas.

Depending on one’s perspective, local entities are either seizing the opportunity to scale back public access to police misconduct information or are fearful of running afoul of the state’s powerful police unions, which had a hand in enacting the police officer privacy statutes relied upon by the Supreme Court in its decision.

“It has had a very significant impact on the ability of the public to access very basic information on what is happening with their police force,” said Mark Schlosberg, police practices policy director for the American Civil Liberties Union of Northern California.

Schlosberg has been following the City of Berkeley’s decision to shut down its civilian review board, even though a board of private citizens would be even further removed from being an employing agency of an officer than the board of government employees in Copley. The Berkeley Police Association has sued to have the board permanently closed, and the trial court is expected to issue a ruling shortly.

Some have seized on the fact that the Copley court emphasized that it was deciding a case about the right to access records generated by a police disciplinary commission, leaving open the question of access to the hearings themselves.

But Terry Francke, general counsel for Californians Aware, a nonprofit open government group, feels the Copley opinion closed access to hearings as well.

“That case is really a door slammer. To me, it tells you how the court will respond to other issues about peace officer privacy,” Francke said. “The logic is clear. If the issue is the emergence of the public availability of information from officer files, then that is an issue that goes beyond records into meetings. Why would you decide on the one hand that you can’t get the records of a hearing but you can go to a hearing and hear everything that goes into the record? I don’t think so. The court didn’t cross that line, but I don’t see any other conclusion.”

In the wake of Copley, Californians Aware helped organize a massive audit of police departments to gauge their responsiveness to public records requests generally. Several of the items requested from the departments dealt with information on individual officers, such as salary.

But even though Californians Aware specifically asked that all personally identifiable information be removed from the documents, in many instances the police department simply denied the request outright.

Francke said he did not know of any department that relied on Copley in denying records, but the overall lack of cooperation from departments suggests they would be emboldened by such a precedent.

“I wouldn’t doubt that they are given a reinforced confidence by that case,” he said.

With the Supreme Court’s decision, options to undue Copley‘s damage to open government are now limited to the California Legislature, which began its 2007 session in January.

Thomas Newton, general counsel of the California Newspaper Publishers Association, said his group is pushing for the statutory overturning of the Copley case, and said several legislators have expressed an interest in sponsoring the bill.

“The situation is dire in California,” Newton said.