7. Complaints filed against employees

Non-Peace Officer Public Employees: Public where they “reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well-founded . . . .” Bakersfield City Sch. Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1046, 13 Cal. Rptr. 3d 517 (2004) (upholding access to alleged incident of sexual harassment or intimidation by school principal even though district had found allegation not true) (citing Am. Fed’n of State, Cty. and Mun. Emps. v. Regents of Univ. of Cal., 80 Cal. App. 3d 913, 146 Cal. Rptr. 42 (1978)); see also Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250, 1273, 136 Cal. Rptr. 3d 395 (2012) (quoting Bakersfield and discussing case law in context of substantiated complaint that teacher violated sexual harassment policy); compare Bakersfield with Associated Chino Teachers v. Chino Valley Unif. Sch. Dist., 30 Cal. App. 5th 530, 543, 241 Cal. Rptr. 3d 732 (2018) (holding complaints against high school volleyball coach for yelling, belittling student-athletes and scheduling practices at their homes were not substantial in nature sufficient to outweigh public employee’s privacy interest in personnel file).

Peace-Officers:  Public under certain circumstances.  Complaints against peace officers generally are protected from disclosure under the California Penal Code. See Cal. Penal Code §§ 832.5, 832.7, 832.8.  In 2018 and 2021 however, the California Legislature enacted Senate Bill 1421 and Senate Bill 16, respectively, which mandate public access to certain officer-related records.  In its present form, and subject to certain exceptions and authorized delays in disclosure, Section 832.7 requires release of eight categories of information: (1) incidents involving the discharge of a firearm at a person by a peace officer; (2) incidents involving the use of force by a peace officer against a person resulting in death or great bodily injury; (3) incidents involving a sustained finding of a complaint alleging unreasonable or excessive force; (4) incidents involving a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive; (5) incidents in which a sustained finding was made by a law enforcement agency or oversight agency that a peace officer or custodial officer engaged in the sexual assault involving a member of the public; (6) incidents in which a sustained finding was made by a law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly related to the reporting, investigation, or prosecution of a crime, or directly related to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained findings of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence; (7) incidents involving sustained findings that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status; and (8) incidents involving a sustained finding that a peace officer made an unlawful arrest or conducted an unlawful search. Cal. Penal. Code § 832.7(b)(1).

Senate Bill 1421 has been held to apply retroactively to subject incidents occurring before the legislation went into effect on January 1, 2019.  See Walnut Creek Police Officers’ Ass’n v. City of Walnut Creek, 33 Cal. App. 5th 940, 941, 245 Cal. Rptr. 3d 398 (March 12, 2019). In rejecting a police association’s argument that the law applied only to incidents after January of 2019, the court explained that the law did not change the legal consequences for peace officer conduct occurring before 2019—a general requirement for retroactive application of new law—rather, it changed only the public’s right of access to peace officer records. Id. at 942. See also Ventura County Deputy Sheriffs’ Ass’n v. County of Ventura, 61 Cal. App. 5th 585, 594, 275 Cal. Rptr. 3d 843 (2021)(same).

A ”sustained” finding under the statute means “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal… that the actions of the peace officer or custodial officer were found to violate law or department policy.” Cal. Pen. Code § 832.7(b). As long as there was an opportunity for an appeal, even if an appeal hearing isn’t completed, an internal investigation can be final and its findings remain sustained. Collondrez v. City of Rio Vista, 61 Cal. App. 5th 1039, 1053, 275 Cal. Rptr.3d 895 (2021). The disclosure obligations under the statute also apply where an officer resigns before an investigation has concluded. Cal. Gov’t Code § 832.7(b)(3).

These disclosure obligations apply to records held but not created by a custodian agency, such as the Department of Justice, even where the custodian is not the officer’s employing agency. Becerra v. Superior Court, 44 Cal. App. 5th 897, 918-19, 257 Cal. Rptr. 3d 897 (2020)(holding that section 832.7’s plain language makes clear that officer-related records in the Department of Justice’s possession are subject to disclosure regardless of whether such records concern peace officers employed by the department or by another state or local agency.)

Except to the extent temporary withholding for a longer period is permitted pursuant to paragraph (8) of Section 832.7(b), records subject to disclosure under Section 832.7(b) “shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.” Cal. Pen. Code § 832.7(b)(11).

The privacy exemption, D.C. Code Ann. § 2-534(a)(2), likely applies. In District of Columbia v. Fraternal Order of Police, Metropolitan Police Department Labor Committee, 75 A.3d 259, 262-63 (D.C. 2013), the court held that emails sent to a “Chief Concerns” email account for Metropolitan Police Department employees (which included complaints about other employees, complaints about the MPD, questions, and suggestions about workplace dynamics) could be redacted under the privacy exemption.

Complaints filed against public employees are not exempt from disclosure under the Act. However, the Act does exempt “[r]ecords consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated, provided that this paragraph shall not be interpreted to make such investigatory records privileged.” O.C.G.A. § 50-18-72(a)(8).

No case directly on point, but they are likely exempt from disclosure if embodied in personnel record and possibly if located in an internal investigation.  Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 46 (Iowa 1999) (citations omitted).  However, if the complaint provides the basis for a resignation in lieu of termination or an employment termination, the public body may need to provide a statement of the reason and release the reason for the cessation of employment.  See Iowa Code § 22.7(11).

Generally, confidential. With only minor variations, the same rules apply to county employees (30-A M.R.S.A. § 503), municipal employees (30-A M.R.S.A. 2702), school employees (20-A M.R.S.A. § 6101), and state employees (5 M.R.S.A. § 7070).

A “government record” does not include, “information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position.”  N.J.S.A. 47:1A-1.1.

Moreover, N.J.S.A. 47:1A-10 provides:

Notwithstanding the provisions of P.L. 1963, c. 73 (C. 47:1A-1 et seq.) or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that:

an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record;

personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest; and

data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.

Letters or memoranda that are matters of opinion do not constitute public records.  See NMSA 1978 § 14-2-1(C).

Not specifically addressed.

“Personal documents relating to an individual, including information in any files maintained to hire, evaluate, promote, or discipline any employee of a public agency” are exempt from disclosure.  1 V.S.A. § 317(c)(7).  However, “all information in personnel files of an individual employee of any public agency shall be made available to that individual employee or his or her designated representative.”  Id.

Complaints appear to fall within the language of the general personnel exclusion. See Va. Code Ann. § 2.2-3705.1.1.

Complaints are available for public inspection, subject to the balancing test, once the investigation is closed. Wis. Stat. § 19.36(10)(b).