Becerra v. Super. Ct. ( 2020 )

Filed 1/29/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
XAVIER BECERRA, as Attorney
General, etc., et al.
Petitioners,
v. A157998
THE SUPERIOR COURT OF THE CITY
AND COUNTY OF SAN FRANCISCO, (City & County of San Francisco
Super. Ct. No. CPF-19-516545)
Respondent;
FIRST AMENDMENT COALITION et
al.,
Real Parties in Interest.
The California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.) enshrines
the value this state has long placed on government transparency and public access to
information concerning the conduct of the people’s business. More recently, in
acknowledgment of the extraordinary authority vested in peace officers and the serious
harms occasioned by misuse of that authority, the Legislature amended Penal Code
section 832.71 to recognize the right of the public to know about incidents involving
shootings by an officer or the use of force by an officer that results in death or great
bodily injury, as well as sustained findings of sexual assault or dishonesty by an officer.
(Stats. 2018, ch. 988, §§ 1, 2 (Sen. Bill No. 1421), eff. Jan. 1, 2019.) As amended,
section 832.7 specifies that records pertaining to such incidents and findings are not
confidential and must be made available for public inspection pursuant to the CPRA.
1
All unlabeled statutory references are to the Penal Code.
1
In this case, California Attorney General Xavier Becerra and the California
Department of Justice (collectively, the Department) have filed a petition for a writ of
mandate seeking to overturn the trial court’s order in favor of First Amendment Coalition
and KQED, Inc. (KQED) over two aspects of the Department’s disclosure obligations
under section 832.7. We conclude, as a matter of statutory interpretation, that section
832.7 generally requires disclosure of all responsive records in the possession of the
Department, regardless whether the records pertain to officers employed by the
Department or by another public agency and regardless whether the Department or
another public agency created the records. Although we also determine, as a matter of
statutory interpretation, that the so-called “catchall exemption” of the CPRA, codified at
Government Code section 6255, may apply to records that are subject to disclosure under
section 832.7, our independent review leads us to conclude the Department did not
adequately demonstrate that the public interest served by nondisclosure of the records at
issue clearly outweighs the public interest in their disclosure. The petition for writ of
mandate is denied.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Xavier Becerra is the Attorney General of the State of California and the
chief law officer of the State. Petitioner California Department of Justice is a state
agency that employs sworn peace officers and possesses certain records relating to the
officers it employs and to officers who are employed by other state and local agencies.
Real party in interest First Amendment Coalition is a non-profit corporation
dedicated to advancing free speech rights, ensuring open and accountable government,
and promoting public participation in civil affairs. Real party in interest KQED is a
community-supported media organization providing coverage of news and culture to
Northern California via radio, television, and digital media.
In January 2019, pursuant to the CPRA, First Amendment Coalition requested
from the Department all records within its possession subject to disclosure under newly
amended section 832.7. Specifically, it asked for “records relating to a report,
investigation or finding . . . of any of the following: (1) An incident involving the
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discharge of a firearm at a person by a peace officer or custodial officer; [¶] (2) An
incident in which the use of force by a peace officer or custodial officer against a person
resulting in death or in great bodily injury; and/or [¶] (3) An incident in which a sustained
finding was made by any law enforcement agency or oversight agency that a peace
officer or custodial officer engaged in sexual assault involving a member of the public.”
It sought records for incidents that occurred in 2016, 2017, and 2018.
In February 2019, pursuant to the CPRA and section 832.7, KQED requested from
the Department “[r]ecords from Jan. 1, 2014 to Dec. 31, 2018 of sustained findings that a
peace officer, including those employed by the Ca. Dept. of Justice, committed sexual
assault or dishonesty-related misconduct.” KQED also sought “[r]ecords from Jan. 1,
2014 to present relating to the report, investigation, or findings of incidents in which the
use of force by a peace officer or custodial officer against a person resulted in death, or in
great bodily injury.”
The Department partially denied the requests of First Amendment Coalition and
KQED (collectively, real parties), agreeing to produce “only those non-exempt records, if
any, relating to peace officers employed by the Department of Justice” subject to
applicable redactions. The Department explained its partial denial as follows: “To the
extent that the Attorney General has obtained records from other state and local law
enforcement agencies, the Attorney General is not the agency that ‘maintains’ those
documents. A requester may properly seek disclosure from the employing agency, which
not only maintains the records, but will be best situated to assess any applicable
exceptions to the disclosure requirement and any statutorily required redactions
concerning sensitive and private information. Further, to the extent that the Attorney
General has obtained such records in relation to investigations or proceedings that the
Attorney General is conducting, the disclosure provisions in section 832.7 do not apply to
the Attorney General, under section 832.7, subdivision (a).”2
2
The scope of potentially responsive records in the Department’s possession, and
how the Department obtains or creates these records, is not clearly or completely
presented in the record on appeal. We make the following observations:
3
In March 2019, real parties jointly petitioned for a writ of mandate to compel the
Department’s compliance with their CPRA requests. Real parties asked the trial court to
command the Department to “immediately search for and promptly disclose all non-
exempt records in [its] possession” sought by their CPRA requests. This included
“records that were created by or involve another state or local agency” and “records that
concern the Attorney General’s own investigations.”
In its answer to the petition, the Department admitted that it possessed “certain
records sought by [real parties], likely totaling many thousands of such records if not
1. The Department maintains certain records for peace officers it employs. As
indicated, to the extent such records are responsive and not subject to any other
objections, the Department represents it will produce them subject to proper redaction.
2. At a trial court hearing on May 17, 2019, the Department’s counsel represented
that the Department “is not a central storehouse for all of the peace officer records for the
state and every local agency. There is in fact no centralized agency that exists that
contains all of those records.”
3. The Department possesses records concerning officers employed by other state
or local agencies. According to the Department’s petition, “The Department obtains files
from law enforcement agencies across the state when it reviews an agency’s decision not
to file charges in connection with an incident, or when it conducts an independent
investigation of a law enforcement agency. The Department often obtains such materials
or information using the subpoena power authorized by Government Code section 11181.
[Fn. omitted, citation.] Some of that information relates to peace or custodial officers
employed by other agencies that are subject to independent review and investigation by
the Department and falls into one of the four categories of Penal Code section 832.7,
subdivision (b)(1).”
In addition, the record on appeal includes a joint status report, prepared after the
trial court granted the writ, which states: “The Department sometimes procures
confidential records or information that could have been subpoenaed or demanded via
interrogatory under Government Code section 11181 by way of stipulated agreements
among agencies. These agreements are made under the condition and understanding that
the materials will remain confidential as contemplated by Government Code section
11181.”
4. It is unclear whether the methods described in paragraph 3 above are the only
ways in which the Department comes to possess records involving officers employed by
other state and local agencies.
5. There is no indication what kinds of records, if any, the Department may
generate when it conducts an independent investigation of a law enforcement agency or
when it reviews an agency’s decision not to file charges in connection with an incident.
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more” and that it “created some but not all of those records.” The Department reiterated
that neither section 832.7 nor the CPRA required or authorized the disclosure of records
it obtained from other state or local law enforcement agencies and further asserted that
such records can be requested directly from those agencies.
In July 2019, the trial court granted real parties’ writ petition. The court ordered
the Department to produce, by January 4, 2020, “all requested records except those
records or parts thereof that this court determines may be lawfully withheld or redacted.”
The Department now petitions for extraordinary writ relief to compel the trial
court to vacate the portion of its order requiring disclosure of records regarding other
agencies’ officers. We granted the Department’s request for an immediate, temporary
stay of trial court proceedings, pending further order of this court. We also issued an
order to show cause why the relief requested by the Department should not be granted.
Real parties requested that their previously filed informal opposition to the petition be
deemed a written return to the order to show cause, and the Department filed a
traverse/reply. We received briefing from amicus curiae Reporters Committee for
Freedom of the Press, joined by six other media and transparency organizations, and the
Department’s response thereto. We also requested and received supplemental briefing on
one of the Department’s grounds for nondisclosure. The parties appeared for oral
argument.
DISCUSSION
A. Standard of Review
A trial court order directing disclosure of public records held by a public agency
“shall be immediately reviewable by petition to the appellate court for the issuance of an
extraordinary writ.” (Gov. Code, § 6259, subd. (c).) This court “conduct[s] an
independent review of the trial court’s ruling; factual findings made by the trial court will
be upheld if based on substantial evidence.” (Times Mirror Co. v. Superior Court (1991)
53 Cal. 3d 1325, 1336 (Times Mirror).)
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B. Statutory Background
1. The CPRA
Enacted in 1968, the CPRA grants public access to public records held by state
and local agencies. (Gov. Code, § 6250 et seq.) “Modeled after the federal Freedom of
Information Act (5 U.S.C. § 552 et seq.), the [CPRA] was enacted for the purpose of
increasing freedom of information by giving members of the public access to records in
the possession of state and local agencies. [Citation.] Such ‘access to information
concerning the conduct of the people’s business,’ the Legislature declared, ‘is a
fundamental and necessary right of every person in this state.’ ” (Los Angeles County Bd.
of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 290.)
Pursuant to the California Constitution, the CPRA must be “broadly construed”
because its statutory scheme “furthers the people’s right of access.” (Cal. Const., art. 1,
§ 3, subd. (b)(2).) Nevertheless, the act does not confer an absolute right of access. As
part of the CPRA, the Legislature included a provision declaring it was “mindful of the
right of individuals to privacy.” (Gov. Code, § 6250.) This express policy declaration
“ ‘bespeaks legislative concern for individual privacy as well as disclosure.’ [Citation.]
‘In the spirit of this declaration, judicial decisions interpreting the [CPRA] seek to
balance the public right to access to information, the government’s need, or lack of need,
to preserve confidentiality, and the individual’s right to privacy. [Citations.]’ ” (Copley
Press, Inc. v. Superior Court (2006) 39 Cal. 4th 1272, 1282 (Copley Press).)
The CPRA balances the dual concerns for privacy and disclosure by providing for
various exemptions that permit public agencies to refuse disclosure of certain public
records. (Gov. Code, §§ 6254–6255.) For instance, the CPRA does not require agencies
to permit public inspection of records that are exempted or prohibited from public
disclosure pursuant to federal or state law, including Evidence Code provisions relating
to privilege. (Gov. Code, § 6254, subd. (k) (hereafter Gov. Code, § 6254(k).) Also, as
discussed post, law enforcement investigatory files were, until recently, categorically
exempted from the CPRA’s general requirement of disclosure. (Gov. Code, § 6254,
subd. (f) (hereafter Gov. Code, § 6254(f)).) “ ‘In large part, these exemptions are
6
designed to protect the privacy of persons whose data or documents come into
governmental possession.’ ” (Copley Press, supra, 39 Cal.4th at p. 1282.) CPRA
exemptions are narrowly construed (American Civil Liberties Union Foundation v.
Superior Court (2017) 3 Cal.5th 1032, 1042 (ACLU Foundation), and the agency
opposing disclosure bears the burden of proving an exemption applies. (Long Beach
Police Officers Assn. v. City of Long Beach (2014) 59 Cal. 4th 59, 70; County of Los
Angeles v. Superior Court (2012) 211 Cal. App. 4th 57, 63.)
2. Section 832.7 and Senate Bill No. 1421
In 1978, the Legislature enacted sections 832.7 and 832.8 to mandate
confidentiality of peace officer personnel records. (Stats. 1978, ch. 630, §§ 5, 6, p. 2083.)
These statutes, along with certain amendments to the Evidence Code, also codified
Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess), which recognized the right of
a criminal defendant to compel the discovery of evidence in a law enforcement officer’s
personnel file that is relevant to the defendant’s ability to defend against a criminal
charge upon a sufficient showing of good cause. (See Assn. for Los Angeles Deputy
Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 40–41 (ALADS).)
Historically, the so-called Pitchess statutes were considered an exemption to
disclosure under the CPRA. (See Copley Press, supra, 39 Cal.4th at p. 1283 [recognizing
§ 832.7 as an exemption under Gov. Code, § 6254(k)].) Before its amendment in 2018,
section 832.7 made certain peace officer records and information confidential and
nondisclosable in any criminal or civil proceeding except pursuant to discovery under
certain provisions of the Evidence Code. (See § 832.7, subd. (a), as amended by
Stats. 2003, ch. 102, § 1 (hereafter fmr. § 832.7).) The first category of confidential
records pertained to “[p]eace officer or custodial officer personnel records,” which
included among other things certain records that relate to employee discipline or certain
complaints and to investigations of complaints pertaining to how the officer performed
his or her duties. (Ibid.; § 832.8) The second category consisted of “records maintained
by any state or local agency pursuant to section 832.5” (fmr. § 832.7, subd. (a)), which
required “[e]ach department or agency in [California] that employs peace officers [to]
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establish a procedure to investigate complaints by members of the public against the
personnel of these departments or agencies” and further required such “[c]omplaints and
any reports or findings relating” to them be retained for “at least five years” and
“maintained either in the peace or custodial officer’s general personnel file or in a
separate file” (§ 832.5, subds. (a)(1), (b); see also § 832.5, subds. (c), (d)(1)). The third
category extended confidentiality to “information obtained from” the prior two types of
records. (Fmr. § 832.7, subd. (a).) Thus, the Pitchess statutes “ ‘reflect[] the
Legislature’s attempt to balance a litigant’s discovery interest with an officer’s
confidentiality interest.’ ” (ALADS, supra, 8 Cal.5th at p. 41.)
In 2018, the Governor signed Senate Bill No. 1421 (hereafter SB 1421), which
amended section 832.7. (§ 832.7, as amended by Stats. 2018, ch. 988, § 2, eff. Jan. 1,
2019.) Under SB 1421, section 832.7 retains the provision that “personnel records of
peace officers and custodial officers and records maintained by any state or local agency
pursuant to Section 832.5, or information obtained from these records, are confidential
and shall not be disclosed” in any criminal or civil proceeding except pursuant to
discovery under certain portions of the Evidence Code. (§ 832.7, subdivision (a)
(hereafter § 832.7(a)); see also § 832.7, subd. (h).) As amended, however, section
832.7(a) now provides that the confidentiality of officer personnel records is subject to a
newly added subdivision (b) (hereafter § 832.7(b)), which states in relevant part:
“Notwithstanding subdivision (a) [of section 832.7], subdivision (f) of Section 6254 of
the Government Code, [3] or any other law, the following peace officer or custodial officer
personnel records and records maintained by any state or local agency shall not be
confidential and shall be made available for public inspection pursuant to the California
3
Government Code section 6254(f) is a CPRA provision that exempts disclosure of
“[r]ecords of complaints to, or investigations conducted by, or records of intelligence
information or security procedures of, the office of the Attorney General and the
Department of Justice, the Office of Emergency Services and any state or local police
agency, or any investigatory or security files compiled by any other state or local police
agency, or any investigatory or security files compiled by any other state or local agency
for correctional, law enforcement, or licensing purposes.”
8
Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1 of the Government Code)” (§ 832.7, subd. (b)(1) (hereafter § 832.7(b)(1)),
namely, records “relating to the report, investigation, or findings” of an incident falling
into any of the following three categories: (1) an incident in which an officer discharged
a firearm at a person or used force against a person resulting in death or great bodily
injury (§ 832.7, subd. (b)(1)(A)(i), (ii)); (2) “an incident in which a sustained finding was
made by any law enforcement agency or oversight agency” that an officer “engaged in
sexual assault involving a member of the public” (§ 832.7, subd. (b)(1)(B)(i)–(iii)); and
(3) “an incident in which a sustained finding was made by any law enforcement agency
or oversight agency of dishonesty by a peace officer or custodial officer directly relating
to the reporting, investigation, or prosecution of a crime, or directly relating to the
reporting of, or investigation of misconduct by, another peace officer or custodial officer,
including, but not limited to, any sustained finding of perjury, false statements, filing
false reports, destruction, falsifying, or concealing of evidence” (§ 832.7,
subd. (b)(1)(C)). This opinion will hereafter refer to these three categories of records
collectively as “officer-related records.”
Even though these officer-related records are now subject to disclosure, section
832.7 reflects continuing legislative concern for certain privacy and safety interests and
competing public interests. Specifically, section 832.7(b) provides that an agency
responding to a record request “shall redact” disclosed records for the following purposes
only: to remove personal data or information outside the name and work-related
information of the officers; to preserve the anonymity of complainants and witnesses; to
protect confidential medical, financial, or other information whose disclosure is
specifically prohibited by federal law or would cause an unwarranted invasion of
personal privacy that outweighs the public’s interest in the records; and where there is
reason to believe that disclosure of the record would pose a significant danger to the
physical safety of the officer or another person. (§ 832.7, subd. (b)(5)(A)–(D).)
Subdivision (b) also provides that, notwithstanding subdivision (b)(5), an agency “may
redact a record disclosed pursuant to this section . . . where, on the facts of the particular
9
case, the public interest served by not disclosing the information clearly outweighs the
public interest served by disclosure of the information.” (§ 832.7, subd. (b)(6).)
Additionally, an agency “may” temporarily withhold records of incidents involving an
officer’s discharge of a firearm or use of force resulting in death or great bodily injury by
delaying disclosure when the incidents are the subject of an active criminal or
administrative investigation. (§ 832.7, subd. (b)(7)(A), (B), (C).)
C. Scope of Disclosure Under the CPRA and Section 832.7
This case presents issues of first impression concerning the scope of a public
agency’s disclosure obligations under the CPRA and section 832.7. The first issue is
whether section 832.7 contemplates disclosure of officer-related records in the
Department’s possession if such records concern officers who are not employed by the
Department or if such records were not created by the Department. This is a matter of
statutory interpretation, which we review de novo. (Weatherford v. City of San Rafael
(2017) 2 Cal.5th 1241, 1247.)
“ ‘ “When we interpret a statute, ‘[o]ur fundamental task . . . is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. We do not examine that language
in isolation, but in the context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various parts of the enactment. If
the language is clear, courts must generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the Legislature did not intend. If the
statutory language permits more than one reasonable interpretation, courts may consider
other aids, such as the statute’s purpose, legislative history, and public policy.’
[Citation.] ‘Furthermore, we consider portions of a statute in the context of the entire
statute and the statutory scheme of which it is a part, giving significance to every word,
phrase, sentence, and part of an act in pursuance of the legislative purpose.’ ” ’
[Citation.]” (Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 856–857
(Meza).)
10
As a court, we have a “limited role in the process of interpreting enactments from
the political branches of our state government.” (California Teachers Assn. v. Governing
Bd. of Rialto Unified School Dist. (1997) 14 Cal. 4th 627, 632 (California Teachers).)
Our role is “not to establish policy” (Carrisales v. Department of Corrections (1999)
21 Cal. 4th 1132, 1140) or to question legislative policy choices (People v. Bunn (2002)
27 Cal. 4th 1, 17). Rather, “we follow the Legislature’s intent, as exhibited by the plain
meaning of the actual words of the law, ‘ “ ‘whatever may be thought of the wisdom,
expediency, or policy of the act.’ ” ’ ” (California Teachers, at p. 632.)
With these principles in mind, we begin our analysis by examining the language of
section 832.7 and the CPRA.
The language of section 832.7(b)(1) states in relevant part: “Notwithstanding
subdivision (a) [of section 832.7], subdivision (f) of Section 6254 of the Government
Code, or any other law, the following peace officer or custodial officer personnel records
and records maintained by any state or local agency shall not be confidential and shall be
made available for public inspection pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government
Code).” (Italics added.) Read together with its subparts, section 832.7(b)(1) deems as
nonconfidential—and subject to public inspection pursuant to the CPRA—all records
maintained by a state agency relating to reports, investigations, or findings from incidents
involving an officer’s discharge of a weapon; an officer’s use of deadly force or force
resulting in great bodily injury; and incidents involving a sustained finding of a sexual
assault or dishonesty by an officer. (§ 832.7, subd. (b)(1)(A)–(C).)
Because section 832.7(b)(1) specifies that the identified officer-related records are
now nonconfidential public records that “shall be made available for public inspection
pursuant to the [CPRA],” we look to the CPRA provisions governing the disclosure of
public records. The CPRA stipulates that “[p]ublic records are open to inspection at all
times during the office hours of the state or local agency and every person has a right to
inspect any public record, except as hereafter provided.” (Gov. Code, § 6253, subd. (a),
italics added.) The CPRA defines the term “public records” broadly as including “any
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writing containing information relating to the conduct of the public’s business prepared,
owned, used, or retained by any state or local agency regardless of physical form or
characteristics.” (Gov. Code, § 6252, subd. (e), italics added.) A plain reading of these
two CPRA statutes and the italicized language therein leads to the conclusion that,
ordinarily, members of the public may inspect “any” public record “retained by” or in the
possession of a state agency such as the Department, even if the record was not
“prepared, owned, [or] used” by the particular agency. (See also Gov. Code, § 6253,
subd. (c) [contemplating disclosure of “public records in the possession of the agency”].)
Whether section 832.7 is considered on its own or in conjunction with the CPRA,
the statutory language appears unambiguous in contemplating disclosure of the records in
dispute. Standing on its own, section 832.7’s statutory phrase “peace officer . . .
personnel records and records maintained by any state or local agency” (italics added)
makes clear that officer-related records in the Department’s possession are subject to
disclosure, regardless whether such records concern peace officers employed by the
Department or by another state or local agency (hereafter non-Department officers), and
no matter which agency created them. Such a reading is only reinforced when considered
together with the CPRA, which explicitly states that, except as provided by the CPRA, a
member of the public has the right to inspect “any writing containing information relating
to the conduct of the public’s business . . . retained by” a state or local agency. (Gov.
Code, § 6252, subd. (e).)
In disputing this construction, the Department argues that when read as a whole
and in context, section 832.7 “plainly requires an officer’s employing agency—but no
other agency—to disclose records.” The Department reasons as follows. When
subdivisions (a) and (b) of section 832.7 are considered together, the records made
nonconfidential by subdivision (b) are regulated by subdivision (a), which informs the
universe of records that are subject to disclosure under section 832.7. Section 832.7(a)
explicitly shields “records maintained by any state or local agency pursuant to section
832.5,” which in turn requires employing agencies to establish procedures for
investigating public complaints against its officers and to maintain records of those
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complaints and any related investigation. (§§ 832.5, 832.7(a).) Thus, in the
Department’s view, section 832.7(b)’s command that “records maintained by any state or
local agency shall not be confidential” is limited to records maintained pursuant to
section 832.5, i.e., those in the possession of an officer’s employing agency. We are not
persuaded.
The flaw in the Department’s analysis is that section 832.7(b), on its face,
explicitly states its provisions are not circumscribed by subdivision (a). (§ 832.7(b)(1)
[“Notwithstanding subdivision (a)”].) Accordingly, the records made nonconfidential in
subdivision (b) are neither restricted nor regulated by subdivision (a).
Moreover, had the Legislature intended to limit its disclosure amendments to
records maintained by an officer’s employing agency or to records created by a public
agency, it easily could have. Significantly, section 832.7(a) is explicit in imposing
confidentiality over “records maintained by any state or local agency pursuant to section
832.5.” (§ 832.7(a), italics added.) If the Legislature had wanted to restrict access to
officer-related records maintained by an employing agency, it could have repeated in
subdivision (b) the same “pursuant to section 832.5” qualification it used in subdivision
(a). Alternatively, it could have utilized the phrase “and employee-related records
maintained by any state or local agency,” or other similar wording. But the Legislature
did neither, and we will not add words it has chosen to omit. (See Hampton v. County of
San Diego (2015) 62 Cal. 4th 340, 350 (Hampton) [“[o]rdinarily we are not free to add
text to the language selected by the Legislature”]; Rojas v. Superior Court (2004)
33 Cal. 4th 407, 423.)
Finally, as indicated above, the Department’s construction is at odds with the
CPRA, which provides in no uncertain terms that, barring an applicable exemption, a
member of the public has the right to inspect any nonexempt “public records,” defined as
“any writing” containing information relating to the public’s business that is “retained
by” a state or local agency. (Gov. Code, § 6252, subd. (e); see id., § 6253, subd. (a).)
13
Although we need not go further because the statutory language is unambiguous,
we will “look to legislative history to confirm our plain-meaning construction of [the]
statutory language.” (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1046 (Hughes).)
Here, the legislative history of SB 1421 discloses that, at the time the proposed
amendments to section 832.7 were pending, the Legislature perceived California as “one
of the most secretive states in the nation in terms of openness when it comes to officer
misconduct and uses of force.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Sen. Bill
No. 1421 (2017–2018 Reg. Sess.) as amended Aug. 23, 2018, p. 8 (hereafter Sen. Floor
Analysis).) In particular, the Legislature pointed to a 2006 Supreme Court ruling
interpreting 832.7 as “prevent[ing] the public from learning the extent to which officers
have been disciplined as a result of misconduct, and . . . clos[ing] to the public all
independent oversight investigations, hearings and reports.” (Sen. Floor Analysis, p. 8,
italics added.) Thus, it appears the Legislature viewed the then-existing lack of public
access to records involving independent oversight investigations as a significant
impediment to transparency regarding officer misconduct and use of force incidents.
In the Legislature’s view, greater transparency would promote important public
policies. As one legislative committee commented, SB 1421’s author urged the bill’s
passage because it “benefits law enforcement and the communities they serve by helping
build trust. Giving the public, journalists, and elected officials access to information
about actions by law enforcement will promote better policies and procedures that protect
everyone. We want to make sure that good officers and the public have the information
they need to address and prevent abuses and to weed out the bad actors. SB 1421 will
help identify and prevent unjustified use of force, make officer misconduct an even rarer
occurrence, and build trust in law enforcement.” (Assem. Com. on Public Safety, Rep.
on Sen. Bill No. 1421 (2017–2018 Reg. Sess.) as amended June 19, 2018, p. 4 (hereafter
Assem. Com. on Public Safety Rep.).)
In contemplating the bill’s effects, another legislative analysis stated: “SB 1421
opens police officer personnel records in very limited cases, allowing local law
enforcement agencies and law enforcement oversight agencies to provide greater
14
transparency around only the most serious police complaints.” (Sen. Rules Com., third
reading analysis of Sen. Bill No. 1421 (2017–2018 Reg. Sess.) as amended May 25,
2018, p. 7, italics added (hereafter Sen. Rules third reading).) At least one Assembly
committee report highlighted the language in SB 1421 providing that “notwithstanding
any other law, [certain enumerated] peace-officer or custodial-officer personnel records
are not confidential and shall be made available for public inspection pursuant to the
[CPRA].”) (Assem. Com. On Public Safety Rep., supra, p. 1.) Underscoring this desire
for greater access and transparency, including access to records maintained by law
enforcement oversight agencies, the Legislative Counsel’s Digest for SB 1421 explained:
“This bill would require, notwithstanding any other law, certain peace officer or custodial
officer personnel records and records relating to specified incidents, complaints, and
investigations involving peace officers and custodial officers to be made available for
public inspection pursuant to the California Public Records Act.” (Legis. Counsel’s Dig.,
Sen. Bill No. 1421 (2017–2018 Reg. Sess.) italics added.)
The legislative findings accompanying SB 1421 further emphasize the public
interest in making serious officer misconduct records accessible: “(a) Peace officers help
to provide one of our state’s most fundamental government services. To empower peace
officers to fulfill their mission, the people of California vest them with extraordinary
authority—the powers to detain, search, arrest, and use deadly force. Our society
depends on peace officers’ faithful exercise of that authority. Misuse of that authority
can lead to grave constitutional violations, harms to liberty and the inherent sanctity of
human life, as well as significant public unrest. [¶] (b) The public has a right to know all
about serious police misconduct, as well as about officer-involved shootings and other
serious uses of force. Concealing crucial public safety matters such as officer violations
of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s
faith in the legitimacy of law enforcement, makes it harder for tens of thousands of
hardworking peace officers to do their jobs, and endangers public safety.” (Stats. 2018,
ch. 988, § 1 (Sen. Bill No. 1421).)
15
As the foregoing demonstrates, the legislative intent behind SB 1421 was to
provide transparency regarding instances of an officer’s use of significant force and
sustained findings of officer misconduct by allowing public access to officer-related
records maintained either by law enforcement employers or by any state or local agency
with independent law enforcement oversight authority. Moreover, in amending section
832.7, the Legislature sought to afford the public “the right to know all about serious
police misconduct,” to stop concealing incidents where an officer violated civilian rights,
and to “address and prevent abuses and weed out the bad actors.” (Stats. 2018, ch. 988,
§ 1 (Sen. Bill No. 1421); Assem. Com. on Public Safety Rep., supra, p. 4.) These
legislative aims are best advanced by a construction that authorizes disclosure of all
responsive officer-related records in the possession of a state agency, regardless whether
they pertain to officers employed by the agency and no matter which agency created
them.
The Department contends otherwise. In its view, the legislative history
demonstrates that SB 1421 “was only intended to require employing agencies to make the
required disclosures.” But the only portion of the legislative history the Department cites
is the report of the Assembly Committee on Public Safety, observing that SB 1421
“loosens the protections afforded to specified peace officer records relating to use of
force, sexual assault on a member of the public and pertaining to dishonesty in reporting,
investigating, or prosecuting a crime.” (Assem. Com. on Public Safety Rep., supra, p. 5.)
It is unclear how that comment provides any support for the Department’s position,
particularly in view of the actual language of section 832.7 and the CPRA and the other
legislative history cited above. The rest of the Department’s legislative history analysis
focuses for the most part on the history of the original 1978 enactment of section 832.7,
which reveals nothing regarding the Legislature’s intent in approving SB 1421 in 2018.
Contrary to the Department’s contentions, the legislative history does not even
remotely suggest that disclosure obligations should be limited to an officer’s employing
agency. Rather, as we have discussed, the history is replete with evidence of the
Legislature’s intent to promote greater transparency with respect to the officer-related
16
records specified in section 832.7, whether such records are maintained by officer
employers or by other agencies exercising independent law enforcement oversight
responsibilities.
Finally, the Department contends that employing agencies “are in the best possible
position to ensure that records regarding their own officers, investigations, prosecutions,
or other actions are properly reviewed and redacted to remove sensitive, confidential
information that subject officers and third parties to a risk of danger or unnecessary
disclosure of confidential information.” That may be so, but such a policy argument
affords no ground for a judicial interpretation that shields responsive records in the
Department’s possession, especially in light of statutory allowances for consultation with
other agencies in processing CPRA requests. (See Gov. Code, § 6253, subd. (c)(3) [time
for responding to requests may be extended where “need for consultation . . . with
another agency having substantial interest in the determination of the request” arises].)
Our interpretation of the CPRA and section 832.7 not only promotes the purposes
reflected in the statutory language and legislative history, it harmonizes with the
constitutional principle that the people have a right to access information concerning the
conduct of the people’s business and that restrictions on this right are narrowly construed.
(Cal. Const., art. I, § 3, subd. (b)(1)–(2).)
Our construction also aligns with case law rejecting the notion that a record’s
location, rather than its content, determines its confidentiality. In Commission on Peace
Officer Standards & Training v. Superior Court (2007) 42 Cal. 4th 278 (CPOST), a
newspaper sought the release of information in a database collected by the Commission
on Peace Officer Standards and Training, a state agency that sets minimum selection and
training standards for peace officers. (Id. at pp. 285–286.) The database—which
included employment data on all peace officers appointed in California starting in the
1970s—was compiled from information provided by local law enforcement agencies
obtained from the officers’ personnel records. (Id. at p. 286.) The Commission argued
certain employment information (a peace officer’s name, employing agency, and
employment dates) was exempt from disclosure under the CPRA because it was based on
17
records that had been placed in confidential personnel files. (Id. at pp. 286–287.) The
CPOST court held this otherwise nonconfidential information does not become
confidential for purposes of sections 832.7 and 832.8 merely because it was derived from
a personnel file that also contains confidential information. (Id. at pp. 289–293.) In
rejecting an interpretation that made confidentiality turn on the type of file in which
records are located, the court found it “unlikely the Legislature intended to render
documents confidential based on their location, rather than their content.” (Id. at p. 291.)
The conclusion we reach here with respect to the disclosure of officer-related records is
similarly driven by the content of the record, not other factors such as which agency
employed the officer or created the record.
D. The CPRA Catchall Exemption
The second issue before us is whether officer-related records that are subject to
disclosure under section 832.7 may nonetheless be withheld pursuant to the catchall
exemption set forth in the CPRA. This exemption, codified in Government Code section
6255, subdivision (a) (hereafter Government Code section 6255(a)), permits a public
agency to withhold a public record under the CPRA if the agency demonstrates “that on
the facts of the particular case the public interest served by not disclosing the record
clearly outweighs the public interest served by disclosure of the record.” (Gov. Code,
§ 6255(a).) The catchall exemption “ ‘contemplates a case-by-case balancing process,
with the burden of proof on the proponent of nondisclosure to demonstrate a clear
overbalance on the side of confidentiality.’ ” (ACLU Foundation, supra, 3 Cal.5th at
p. 1043.)
1. Availability of the CPRA Catchall Exemption
The trial court declined to decide whether the catchall exemption is available to a
public agency that receives a CPRA request for section 832.7 officer-related records.
The parties’ original and supplemental briefs, however, address this issue.4 The
4
On November 13, 2019, this court ordered the parties to file simultaneous
supplemental letter briefs addressing the following two questions that touch on the issue:
“1. Can the redaction provision in Penal Code section 832.7, subdivision (b)(6), be
18
Department contends that requests for section 832.7 records may be subject to this CPRA
exemption, while real parties argue that section 832.7’s newer and more detailed
provisions for redacting or withholding records must be deemed to prevail over the more
general CPRA exemption. We conclude, as a matter of statutory construction, that the
CPRA catchall exemption may apply to requests for section 832.7 officer-related records.
As before, we begin as we must with the statutory language. (Meza, supra,
6 Cal.5th at pp. 856–857.) Also, when construing the interaction of two potentially
conflicting statutes, we must, where reasonably possible, harmonize them, reconcile their
seeming inconsistencies, and adopt a construction that gives “ ‘force and effect to all of
their provisions.’ ” (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles
(2012) 55 Cal. 4th 783, 805.) If that cannot be done, then as a general rule, “ ‘later
enactments supersede earlier ones [citation], and more specific provisions take
precedence over more general ones.’ ” (Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th
627, 634.)
The parties contend, and we concur, that we should again focus on the language of
section 832.7(b)(1), which states in relevant part: “Notwithstanding subdivision (a),
subdivision (f) of Section 6254 of the Government Code, or any other law, the following
peace officer or custodial officer personnel records and records maintained by any state
or local agency shall not be confidential and shall be made available for public inspection
pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code) . . . .”
Taken as a whole, that language reasonably reflects the Legislature’s intent to
preserve, not override, the CPRA but for its investigatory files exemption (Gov. Code,
§ 6254(f)). Specifically, section 832.7(b)(1) starts off by stating plainly that officer-
harmonized with the catchall provision in Government Code section 6255, subdivision
(a), and if so, how? If not, which provision prevails over the other? [¶] 2. Is the
balancing test referenced in Penal Code section 832.7, subdivision (b)(6), performed in
the same manner as the balancing test referenced in Government Code section 6255,
subdivision (a)? If not, please address the differences.”
19
related records are nonconfidential and disclosable notwithstanding the CPRA
investigatory files exemption, then concludes by stating equally plainly that such records
“shall be made available . . . pursuant to the California Public Records Act.” By
including these two express references to the CPRA in this one sentence, the Legislature
signaled its intent that officer-related records are no longer confidential under the
CPRA’s investigatory files exemption but that the CPRA is otherwise essential to section
832.7’s operation.
At the same time, there is nothing in the balance of the statutory text giving any
indication that the CRPA as a whole was displaced by section 832.7. Indeed, setting
aside for the moment the language referencing the CPRA at the end of section
832.7(b)(1), its beginning phrase “[n]otwithstanding . . . any other law” cannot
reasonably be read to do away with the entire CRPA. That particular phrase has been
deemed a “ ‘ “term of art” . . . that declares the legislative intent to override all contrary
law.’ ” (Arias v. Superior Court (2009) 46 Cal. 4th 969, 983.) Thus, “only those
provisions of law that conflict with” section 832.7(b)—“not . . . every provision of
law”—are inapplicable. (Ibid.) As we discuss, post, Government Code section 6255(a)
is not directly contrary to the disclosure or redaction provisions in section 832.7. It
therefore survives.
Highlighting the prefatory “[n]otwithstanding . . . any other law” language, real
parties argue that all responsive officer-related records are nonconfidential regardless of
any contrary law, including the CPRA and its catchall exemption. But this sweeping
construction of the prefatory language renders its express abrogation of one particular
CPRA exemption—Government Code section 6254(f)—superfluous in violation of the
fundamental principle that “ ‘[c]ourts should give meaning to every word of a statute if
possible, and should avoid a construction making any word surplusage.’ ” (Big Creek
Lumber Co. v. County of Santa Cruz (2006) 38 Cal. 4th 1139, 1155.) Because the
prefatory language references this single CPRA exemption, it seems unlikely that the
Legislature contemplated the clause as encompassing other CPRA exemptions. (See
CPOST, supra, 42 Cal.4th at p. 294 [“when a statute contains a list or catalogue of items,
20
a court should determine the meaning of each by reference to the others . . . . In
accordance with this principle of construction, a court will adopt a restrictive meaning of
a listed item if acceptance of a more expansive meaning would make other items in the
list unnecessary or redundant”].) Indeed, had the Legislature intended for section 832.7
to override the CPRA catchall exemption, it could have explicitly said so, as it did for
Government Code section 6254(f) and in other statutes. (See, e.g., Gov. Code,
§ 54957.5, subd. (a) [“[n]otwithstanding Section 6255 or any other law, agendas of public
meetings and any other writings, when distributed to all, or a majority of all, of the
members of a legislative body of a local agency by any person in connection with a
matter subject to discussion or consideration at an open meeting of the body, are
disclosable public records under the California Public Records Act, and shall be made
available upon request without delay”].) It is not our role to add an exemption to a statute
that the Legislature chose not to include. (See Hampton, supra, 62 Cal.4th at p. 350.)
We again look to the legislative history of the section 832.7 amendments for
confirmation of the appropriate construction. (Hughes, supra, 46 Cal.4th at p. 1046.)
Here, the legislative history reflects the Legislature’s awareness of the CPRA catchall
exemption, as well as several other CPRA exemptions apart from the law enforcement
investigatory files exemption set forth in Government Code section 6254(f). (See Assem.
Com. on Public Safety Rep., supra, pp. 3, 4, 5, 7.) Despite such awareness, none of the
committee reports or analyses made any mention of an intent to nullify or override the
catchall exemption via the amendments to section 832.7. That both the language and
legislative history of the section 832.7 amendments are silent as to the abrogation of any
CPRA exemption—except for the investigatory files exemption—strongly suggests that
requests seeking section 832.7 officer-related records remain otherwise subject to the
CPRA catchall exemption.
Real parties counter that the Legislative Counsel’s Digest includes statements that
SB 1421 “would define the scope of disclosable records,” that the amendments to section
832.7 “would require, notwithstanding any other law, certain [records] . . . be made
available for public inspection,” and that discussed in detail the specific redactions and
21
withholdings permitted by the amendments. (Legis. Counsel’s Dig., Sen. Bill No. 1421
(2017–2018 Reg. Sess.) ¶ 2.) But nothing in these statements or in the Legislative
Counsel’s Digest as a whole suggests the Legislature intended to limit application of the
entire CPRA when it amended section 832.7. Because the language of section 832.7(b) is
to the contrary—expressly requiring that records be made available “pursuant to the
California Public Records Act” while specifically abrogating only one particular CPRA
exemption (Gov. Code, § 6254(f))—it appears more reasonable to construe the Digest’s
reference to the “scope of disclosable records” as encompassing both the detailed
redaction and withholding provisions of section 832.7 and any otherwise applicable
CPRA exemption. (See Regents of University of California v. Superior Court (2013) 222
Cal. App. 4th 383, 400–401 [“disclosable” records are those “not subject to any one or
more of the [CPRA’s] many exemptions from disclosure”].)
Moreover, construing the CPRA catchall exemption as applying to requests for
section 832.7 records honors the Legislature’s longstanding recognition that there may be
competing public interests at stake in a public records request and that public records are
properly withheld if an agency can demonstrate, on the facts of the particular case, that
the public interest served by nondisclosure “clearly outweighs” the public interest served
by disclosure. (Gov. Code, § 6255(a); see Times Mirror, supra, 53 Cal.3d at p. 1339.) In
this regard, the catchall exemption has been used to justify withholding documents based
on a range of public interests, including the “ ‘expense and inconvenience involved in
segregating nonexempt from exempt information.’ ” (ACLU Foundation, supra, 3
Cal.5th at p. 1043.) As the Supreme Court has explained, a refusal to place public
concern with the cost and efficiency of government “on the section 6255 scales would
make it possible for any person requesting information, for any reason or for no particular
reason, to impose upon a governmental agency a limitless obligation. Such a result
22
would not be in the public interest.” (American Civil Liberties Union v. Deukmejian
(1982) 32 Cal. 3d 440, 453 (Deukmejian).)5
True, none of the redaction and withholding provisions of section 832.7 explicitly
accounts for the public interest in government cost and efficiency, or any other public
interest that may fall within the scope of the CPRA catchall exemption. But subjecting
requests for section 832.7 officer-related records to potential application of this catchall
exemption simply means that otherwise responsive records may be withheld only in those
instances where the public agency adequately demonstrates that, due to the facts of a
particular case, the public interest in nondisclosure clearly outweighs the public interest
in disclosure. Notably, Government Code section 6255 has not, to our knowledge, been
criticized as an unworkable or overly broad exemption that unduly impairs government
transparency or meaningful public access to information. We see no statutory or
legislative policy basis for concluding that SB 1421 intended to extinguish this
longstanding exemption that permits withholding only where the public interest
predominates in favor of nondisclosure.
Real parties further observe that section 832.7 has a catchall provision of its
own—codified in subdivision (b)(6) (hereafter section 832.7(b)(6))—that allows an
agency to “redact a record disclosed pursuant to this section, including personal
identifying information, where, on the facts of the particular case, the public interest
served by not disclosing the information clearly outweighs the public interest served by
5
Indeed, our construction benefits from the consistency of harmonizing aspects of
the two statutes wherever possible. It would seem anomalous to construe section 832.7
as requiring that records be made available pursuant to the CPRA but disregarding the
CPRA’s contemplation that records should be withheld when the public interest in doing
so clearly outweighs the public interest in disclosure.
23
the disclosure of the information.” (§ 832.7(b)(6).) In real parties’ view, this provision is
rendered superfluous if the CPRA catchall provision applies.6
We cannot agree. The CPRA catchall exemption authorizes the nondisclosure of a
record when a determination is made by the public agency (or the court if the agency’s
determination is challenged) that “on the facts of the particular case the public interest
served by not disclosing the record clearly outweighs the public interest served by
disclosure of the record.” (Gov. Code, § 6255(a).) As discussed, this exemption permits
withholding based on various considerations, including public fiscal and administrative
concerns regarding the “ ‘expense and inconvenience involved in segregating nonexempt
from exempt information’ ” (ACLU Foundation, supra, 3 Cal.5th at p. 1043), and is an
integral part of the CPRA framework that, at the outset, allows a determination that the
interest of the public is best served by the nondisclosure of otherwise responsive records.
(E.g., Deukmejian, supra, 32 Cal.3d at pp. 453–454.) Meanwhile, section 832.7(b)(6)
may apply once the agency or the court determines that responsive records are not
exempt from disclosure. That is, after the agency or the court determines that responsive
records may not be withheld under the CPRA catchall exemption (or any other applicable
exemption), the purpose that section 832.7(b)(6) serves is to authorize redaction of
specific information contained in those records when redaction best serves the public
interest.7
Real parties further argue that Government Code section 6255 directly conflicts
with two other of section 832.7’s subdivisions that more specifically restrict record
6
In response to this court’s request for supplemental briefing, the parties appear to
agree that the section 832.7(b)(6) balancing test is performed in the same manner as the
CRPA catchall exemption balancing test.
7
In their supplemental briefing, real parties emphasize that subdivision (b)(6) was
added to section 832.7 late in the legislative process at a time when the proposed statute
contained only the redaction provisions in subdivision (b)(5). In response to the requests
of both parties, we take judicial notice of the legislative history materials for SB 1421.
Contrary to real parties’ suggestion, however, the late addition of that subdivision did not
reflect a legislative intent to disallow redaction or withholding under the CPRA catchall
exemption, and the two provisions are reasonably harmonized.
24
withholding or redaction The first identified subdivision allows a public entity to
withhold records due to a pending investigation or prosecution, but only temporarily and
subject to certain reporting requirements to explain the delay. (§ 832.7,
subd. (b)(7)(A)(i)-(iii).) The second identified subdivision provides that an agency “shall
redact” a record disclosed pursuant to section 832.7 only with regard to an officer’s non-
work-related personal data or information; preservation of complainant or witness
anonymity; confidential medical, financial, or other information under certain
enumerated circumstances; and where there is reason to believe that disclosure “would
pose a significant danger” to the safety of the officer or another person. (§ 832.7,
subd. (b)(5)(A)–(D).)
We conclude the statutes are reasonably harmonized to effectuate their respective
purposes. Again, because the CPRA catchall exemption contemplates a variety
competing public interests including privacy, public safety, and public fiscal and
administrative concerns (ACLU Foundation, supra, 3 Cal.5th at p. 1043), it may apply
more broadly than the withholding provision in section 832.7, subdivision (b)(7)(A),
which is limited to active investigations. It also has a broader reach than section 832.7,
subdivision (b)(5), which applies to nonexempt officer-related records and focuses on
personal data and information and other specific situations triggered by information
within those records. Real parties have identified no irreconcilable conflict in the
simultaneous operation of these provisions.
On a final note, we observe that operation of the CPRA catchall exemption should
not frustrate section 832.7’s aim to provide greater transparency around officer
misconduct issues. Although Government Code section 6255(a) allows for nondisclosure
upon a proper showing, the CPRA requires that “[a]ny reasonably segregable portion of a
record shall be available for inspection by any person requesting the record after deletion
of the portions that are exempted by law” (Gov. Code, § 6253, subd. (a)). Thus, while
responsive records may be and have been entirely withheld under the CPRA catchall
exemption, a public agency remains otherwise obligated to redact exempt information
from a nonexempt record when the exempt and nonexempt materials are not “inextricably
25
intertwined” and are “otherwise reasonably segregable.” (Deukmejian, supra, 32 Cal.3d
at p. 453, fn. 13; see CBS, Inc. v. Block (1986) 42 Cal. 3d 646, 652–653.)
2. The Balance of Interests in This Case
Having determined that the CPRA catchall exemption is available in response to a
request for the officer-related records specified in section 832.7, we next consider
whether the Department has sufficiently demonstrated that the records sought by real
parties may be withheld under that exemption. Here, the Department’s principal
argument for withholding records concerning non-Department officers is the “onerous
burden of reviewing, redacting, and disclosing records regarding other agencies’ officers,
which involves “potentially millions of records.” In the Department’s view, this burden
outweighs the public interest in obtaining those records from the Department rather than
the other state and local agencies that employ those officers.
Although the CPRA catchall exemption may be invoked based on the concern that
segregating nonexempt from exempt information would be unduly burdensome (ACLU
Foundation, supra, 3 Cal.5th at p. 1043; State Bd. of Equalization v. Superior Court
(1992) 10 Cal. App. 4th 1177, 1188 (State Bd. Of Equalization), the withholding of
responsive records is not permitted unless the Department demonstrates “ ‘a clear
overbalance on the side of confidentiality.’ ” (ACLU Foundation, at p. 1043.) In
balancing the competing public interests in this case, we review the public interest factors
de novo but accept the trial court’s factual findings that are supported by substantial
evidence. (Ibid.)
Here, the trial court assumed the CPRA catchall exemption was available but
determined the Department’s showing did not justify nondisclosure. Our independent
review leads us to likewise conclude that, at this juncture, the Department has not
demonstrated “ ‘a clear overbalance on the side of confidentiality.’ ” (ACLU Foundation,
supra, 3 Cal.5th at p. 1043.)
In making its showing, the Department offered the two-page declaration of
Michael Newman, Senior Assistant Attorney General of the Department’s Civil Rights
Enforcement Section. Newman represented there were six separate matters within that
26
section that were “likely” to include records potentially responsive to real parties’
requests, noting each matter includes “voluminous materials, including reports,
transcripts, audio and video files, and photographs.” As the first of two examples,
Newman cited the Department’s independent investigation into a local law enforcement
agency that includes over 109,000 records, which he estimated would take a minimum of
3,600 attorney hours to review, “assuming a very optimistic rate of review of 30 records
per hour.” According to Newman, the second matter includes over 26,000 items that
would take approximately 860 attorney hours to review.
In assessing whether an agency has satisfied its burden in invoking the CPRA
catchall exemption, courts may accept expert and other predictions based on solid
foundations (see Los Angeles Unified School Dist. v. Superior Court (2014)
228 Cal. App. 4th 222, 244–246) and may consider certain estimates that quantify the
burden and cost of production (see State Bd. of Equalizatiion, supra, 10 Cal.App.4th at
p. 1183 & fn. 6). Because Newman’s declaration was lacking in meaningful detail, we
conclude it fell short of demonstrating that public fiscal and administrative concerns over
the expense and inconvenience of responding to real parties’ records request clearly
outweigh the public interest in disclosure.
In particular, Newman referred to the existence of six matters in the Civil Rights
Enforcement Section that “are likely to include records that are potentially responsive.”
But Newman offered no indication whether the two matters involving 109,000 and
26,000 items are representative examples or outliers. While it seems reasonable to
assume that these are the Department’s two most voluminous matters, Newman proffered
no information regarding the records in the other four matters or the potential burden in
reviewing them. Newman additionally alluded to other unidentified sections in the
Department that he “understand[s] . . . have also handled matters that would include
potentially responsive records,” but again, he provided no specifics or estimates as to the
number of sections implicated, the number of matters in each of those sections, or the
scope of records in each of those matters. There is also a disconnect between the
27
hundreds of thousands of records suggested by Newman and the “potentially millions of
records” that the Department’s petition claims it will be burdened with reviewing.
The paucity of information regarding the Department’s costs of complying with
real parties’ request is notable in light of certain SB 1421 legislative materials reflecting
that the Department had reported to the Legislature estimated “costs of $263,000 in
2018–19, $437,000 in 2019–20, and $422,000 in 2020–21 and ongoing” in order to
“implement the new requirements, handle an increase in [CPRA] requests, and potential
increased litigation.” (Sen. Floor Analysis, supra, at p. 8.)8 These materials do not
indicate such costs pertain solely to records for Department employees. In addition, the
record does not offer any basis for ascertaining how these Department-specific estimated
costs might relate to the Department’s review of its officer-related records involving non-
Department officers. At the very least, however, we may infer that the Legislature chose
to enact SB 1421 despite its awareness that the Department’s compliance would entail
significant expense.9
Additionally, while Newman acknowledged his Civil Rights Enforcement Section
has records potentially responsive to the pending requests, the Department made no
showing that these same records are held by other state and local agencies. For instance,
Newman indicated that the matter with 109,000 records pertains to the Department’s
independent investigation of a local law enforcement agency. But because Newman
8
Real parties request we take judicial notice of these particular legislative materials,
which the Department does not appear to oppose. We grant the request. (See Evid.
Code, § 452, subd. (c).)
9
At oral argument, the Department contended the legislative materials focused on
S.B. 1421’s fiscal impacts on state and/or local agencies only in their capacity as officer
employers. Certain materials do appear to reflect that. (E.g., Sen. Rules third reading,
supra, at p. 8; Sen. Com. on Appropriations, Rep. on Sen. Bill No. 1421 (2017–2018
Reg. Sess.) as amended Apr. 2, 2018.) Those materials, however, cannot be viewed as
limiting the Department’s disclosure obligations to employee records, given section
832.7’s language and other legislative materials establishing the statute’s application to
all officer-related records maintained by state and local agencies, including those
maintained by independent investigatory bodies. (See part C, ante.)
28
offered no information establishing or estimating the extent to which the local agency
maintains the same records, there appears no basis for determining whether and to what
extent the Department’s assertions about duplicative efforts are merited. Of course, to
the extent the Department is in possession of unique records, no duplicative burden is
threatened.
The Department contends it “need not actually gather and review the entire
universe of potentially responsive records to provide evidence of the extraordinary
burden.” That is, because estimates are the only way to provide insights into the burdens
posed by a records request, and because Newman’s declaration reflected “the basic
generalized knowledge that a fact finder possesses regarding human affairs, and the way
the world works,” the Department posits that his declaration “is precisely the kind of
evidence” that courts have typically accepted in assessing burdens under section 6255(a).
(See Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal. App. 4th 159, 174.)
We do not doubt that public agencies and others may have some generalized
knowledge regarding the onerous burdens posed by certain types of CPRA requests. But
officer-related records were exempt from disclosure before the passage of SB 1421.
Consequently, the nature and scope of responsive records in the Department’s possession
are relatively unknown to litigants and the courts, and the burden of making such records
available for inspection must, at this juncture, be established through expert testimony, or
at the very least, with a more thorough showing that substantiates the Department’s
burden.
Nor are we persuaded—on this record—by the Department’s claim that it faces an
“extraordinary burden” in “having to coordinate with numerous state and local agencies
across the state to determine whether there is material that must not be disclosed,” and
that this burden tips the balance against disclosure. On this score, the Department
appears to be concerned with making the redactions necessary to ensure the continued
confidentiality of information that either poses a risk to the safety of individual citizens or
officers or potentially imperils ongoing investigations about which the Department has no
knowledge. Newman’s declaration, however, offered no facts that allow for a
29
meaningful understanding of the scope and type of coordination necessary for the
Department and local agencies to meet such concerns. While it could be inferred from
Newman’s declaration that the Department would have to coordinate with the one local
law enforcement agency under investigation, Newman did not say whether the five other
matters in the Civil Rights Enforcement Section involve similar independent
investigations. Absent a more thorough showing by the Department, we are hard-pressed
to assume such tasks are overly burdensome in view of the circumstance that the CPRA
allows for extensions of time when “[t]he need for consultation” arises. (See Gov. Code,
§ 6253, subd. (c)(3)).
The Department’s reliance on Deukmejian, supra, 32 Cal. 3d 440, is misplaced.
There, the petitioner made a request to the California Department of Justice seeking index
cards compiled by a network of law enforcement agencies that listed persons suspected of
being involved in organized crime. (Id. at p. 444.) The cards included information such
as the identities of the family members and known associates of organized crime
members, who may or may not have had any connection to organized crime. (Id. at
p. 453.) The Supreme Court examined the index cards in camera and observed that the
cards did not indicate “which material [was] confidential, might reveal a confidential
source, or identify the subject of the report.” (Ibid.) The court also commented that “in
many instances” the state agency defendants would be required “to inquire from the law
enforcement departments supplying the information.” (Ibid.) In reversing the judgment
insofar as it required disclosure of the cards, the Supreme Court “reject[ed] the
suggestion that in [weighing the benefits and costs of disclosure under section 6255] the
courts should ignore any expense and inconvenience involved in segregating nonexempt
from exempt information.” (Id. at pp. 452–453.) Determining that redacted disclosures
were of questionable utility, the court concluded the cost and burden of segregating the
exempt and nonexempt information on the cards outweighed the public interest in
disclosure. (Id. at pp. 453–454.)
The Deukmejian decision does not compel the conclusion that nondisclosure is
similarly warranted based on the showing made here. As Deukmejian observed, the
30
CPRA catchall exemption “requires the courts to look to ‘the facts of the particular case’
in balancing the benefits and burdens of disclosure under the [CPRA].” (Deukmejian,
supra, 32 Cal.3d at p. 454, fn. 14.) Thus, while the particular facts in that decision
justified nondisclosure, Deukmejian cautioned that “in another case, with different facts,
the balance might tip in favor of disclosure of nonexempt information.” (Ibid.) The facts
here are different. Unlike the situation in Deukmejian, where the index cards in dispute
were available for court review, here there is nothing in the record showing that working
in coordination with state and local agencies threatens a “limitless obligation” (id. at
p. 453) such that the public interest predominates in favor of withholding all responsive
records pertaining to non-Department officers.
In short, the Department’s showing below fails to establish “ ‘a clear overbalance
on the side of confidentiality.’ ” (ACLU Foundation, supra, 3 Cal.5th at p. 1043.)
CONCLUSION AND DISPOSITION
To summarize, we hold that: (1) as a matter of statutory interpretation, section
832.7 generally requires disclosure of all responsive officer-related records in the
possession of the Department, regardless whether the records pertain to officers
employed by the Department or by another public agency and regardless whether the
Department or another public agency created the records; (2) as a matter of statutory
interpretation, the CPRA catchall exemption may apply to officer-related records subject
to disclosure under section 832.7; and (3) the Department fell short of demonstrating that
the public interest served by nondisclosure of the records at issue clearly outweighs the
public interest in their disclosure. Although we essentially affirm the trial court’s
determination on this third point, we emphasize that nothing in our opinion should be
understood as barring the trial court from reconsidering the applicability of the CPRA
catchall exemption as to any of the requested records upon a proper showing by the
Department.
The petition for writ of mandate is denied, the order to show cause is discharged,
and the stay previously imposed is lifted. Each party shall bear its own costs on appeal.
(Cal. Rules of Court, rule 8.493(a)(1)(B).)
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_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Petrou, J.
A157998
32
Becerra v. Superior Court
(A157998)
Trial court: City & County of San Francisco
Trial Judges: Hon. Richard B. Ulmer
Attorneys: Xavier Becerra, Attorney General, Thomas S. Patterson, Senior Assistant
Attorney General, Stepan A. Haytayan, Supervising Deputy Attorney
General, Amie L. Medley, Deputy Attorney General, Jennifer E.
Rosenberg, Deputy Attorney General as Defendant and Appellant.
Michael T. Risher; David E. Snyder, Glen A. Smith for First Amendment
Coalition for Real Parties in Interest.
Davis Wright Tremaine, Thomas R. Burke, Brendan Charney for KQED,
Inc. for Real Parties in Interest.
Reporters Committee for Freedom of the Press, Katie Townsend, Bruce D.
Brown, Adam A. Marshall, Daniel J. Jeon; The Associated Press, Karen
Kaiser; California News Publishers Association, Jim Ewert; Californians
Aware, Terry Francke; The E.W. Scripps Company, David M. Giles; First
Look Media Works, David Bralow; Sheppard Mullin Richter & Hampton,
James Chadwick; Fox Television Stations, David M. Keneipp; Gannett Co.,
Barbara W. Wall; Hearst Corporation, Jonathan Donnellan, Ravi V.
Sitwala, Diego Ibarguen; Los Angeles Times Communications & The San
Diego Union-Tribune, Jeff Glasser; The McClatchy Company, Juan
Cornejo; Covington & Burling, Kurt Wimmer; MNG Enterprises, Marshall
W. Anstandig; MPA – The Association of Magazine Media, James Cregan;
33
Ballard Spahr, Charles D. Tobin; The National Press Photographers
Association, Mickey H. Osterreicher; ProPublica, Richard J. Tofel; Wiley
Rein, Kathleen A. Kirby; Reveal from the Center for Investigative
Reporting, Victoria Baranetsky; Baker & Hostetler, Bruce W. Sanford,
Mark I. Bailen; VICE Media, Lucinda Treat for amicus curiae on behalf of
real parties in interest.
34