Should the personnel records of police officers and deputy sheriffs be kept confidential?
That question is at the heart of legislation being readied by California Assembly Member Mark Leno and State Senator Gloria Romero, in association with the California Newspaper Publishers Association and the American Civil Liberties Union. Leno and Romero are planning to carry identical bills in their respective houses that are designed to counter a recent holding of the California Supreme Court that peace officer personnel information used in a civil service hearing must not be made public. The case was Copley Press, Inc. v. Superior Court, County of San Diego, 39 Cal.4th 1272 (2006).
This decision was based in part on California Penal Code sections 832.7 and 832.8 (you can read these sections at http://www.leginfo.ca.gov">http://www.leginfo.ca.gov), which define what qualifies as personnel records and which forbid the officer's employer from releasing those records except under very limited circumstances.
In the Copley Press case, the court made a fairly narrow finding: that a county civil service commission could not make use of the sheriff's personnel records in a public hearing.
However, it was but one of many court decisions over the last three decades that have recognized the unique nature of police personnel records, as opposed to those of public employees generally, and the rights of officers to keep them confidential.
Although the Leno-Romero bills reportedly will be specifically designed to restore the ability of such commissions - and, for that matter, civilian police review boards - to make use of such records in a public forum, they are also part of a larger movement to reduce the privacy rights of California peace officers.
When a member of the public information advocacy group Californians Aware asked us recently about the workers compensation claims and outside employment of Lodi police officers, their request was related to that movement. They make it clear at their website http://www.calaware.org">http://www.calaware.org that they believe that the level of confidentiality currently afforded California peace officers is poor public privacy and should be changed. And it is in this context that they asked for the workers comp and second job info, which have been found to be confidential personnel records under section 832.8.
Calaware maintains that they had avoided the confidentiality issue by asking that the information be provided only by rank - officer, sergeant, etc. After all, if you don't name the personnel, what objection should they have to giving them out?
The City of Lodi declined to release the subject records, even under CalAware's conditions, which I am sure contributed to their rather disparaging opinion of us.
Although I have not been privy to the legal rationale for this decision, I can point out one glaring reason why such a release is not confidential at all: context. Let's say I am exposed to hazardous materials in a drug lab and I damage my liver. I start having serious medical problems that I want don't want my friends and co-workers to know about because I am a very private person.
Remember, this is hypothetical. In reality, they actually wish I would shut up about everything from my psoriasis to my athlete's foot, but play along here.
I file a comp claim and receive a lot of medical care on the public dime. Californians Aware gets those records released as part of the whole police department roster. All of the names are carefully redacted from the information, the idea being that it keeps them confidential. You then read here in the pages of the Lodi News-Sentinel about a lieutenant who had an injury to his liver and a bunch of medical complications.
You probably have no idea who I am and don't care, but you know who does? The people I work with. Many of them would know that I had had an exposure at a lab, and since we only have six lieutenants working here, it doesn't take a detective - which we have plenty of, actually - to figure it out.
So the very people who I don't want knowing my medical information are the ones who are in the best position to find out.
CalAware can figure this out also, but they aren't really concerned about it because, from their standpoint, pretty much anything about public employees that is paid for by public money or written down in the records of public agencies should be available to the public.
This is actually the state of affairs for most folks on the public payroll; only peace officers get the protections of Penal Code Sections 832.7 and 832.8.
If you are opposed to those protections, it is your right to advocate for changing them, and the question of whether the medical records or discipline of police officers should be confidential is a legitimate public policy debate.
Shockingly enough, I come down foursquare for maintaining the right of confidentiality. But that's another column.
It's a bit disingenuous, however, to argue for the public release of records that you know many agencies will hold back based on a good faith interpretation of the law.
In truth, there is fair chance that some of the agencies that gave up such information, even with the names scrubbed off, may have violated the law and the privacy rights of their officers. Time will tell.
This is the last of my series on law enforcement public information. In almost two decades of serving in the role of LPD public information officer, I have seen first hand the complexities associated with the release of public information, and I hoped to convey to you the difficulty we sometimes face in deciding what should go public.
However, just because it's a tough call doesn't mean we don't understand our obligation to you, our bosses. We are working on getting better and faster, and we always want your feedback, good and bad. Feel free to send it to me, and I'll pass it on. And thanks for reading.
First published: Monday, February 26, 2007