Post by KC on Jun 7, 2006 21:21:32 GMT -5
June 07, 2006 - California - The state Supreme Court takes up an intriguing and potentially far-reaching case this week dealing with how much information peace officers can keep secret when they are disciplined on the job.
At issue is the extent that officers – such as deputy sheriffs and police officers – can keep their job performance issues private and shielded from public scrutiny.
At oral arguments Wednesday, the court will grapple with the question of whether the state Public Records Act allows the public to get the identify of a disciplined police officer and other information from a Civil Service Commission proceeding.
Media groups are urging the court to go further, and declare that the right of access to civil and criminal court cases – guaranteed by the First Amendment – also should extend to quasi-judicial or administrative agencies, such as a civil service board.
While it is doubtful that the justices will go that far, the dispute raises important questions about the public's ability to monitor police officers who committed misconduct and how they are disciplined by public agencies that employ them.
In the past few years, appeals courts across the state have issued sometimes conflicting rulings on where the line should be drawn.
A ruling that sides with peace officers and their unions could close down civil service hearings where officers appeal discipline at local and state levels.
It also could alter the work of the handful of citizen review boards that have sprouted across the state to independently monitor police activity.
“Where does it stop?” said Terry Francke, a lawyer with the nonprofit public access advocacy group Californians Aware. “They are saying the public really never has any right to know anything about a peace officer, other than what you see on the street. What is the limit of the secrecy?”
The current case began in in 2003 when The Copley Press, publisher of The San Diego Union-Tribune, sued over the county Civil Service Commission's decision to close a hearing concerning the discipline of a sheriff's deputy, and the agency's refusal to release information about the hearing sought under the state Public Records Act.
The case is thick with law – dealing with chunks of the state Penal Code, Government Code and Evidence Code.
A section of the state Penal Code says police officer personnel records maintained by an “employing agency” are confidential in civil and criminal cases, and sets out an exacting process under which limited information from the files can be released to parties in a case.
The Public Records Act allows citizens access to government records, though the law is full of exceptions to that general rule.
The newspaper contends that the protections given to police officers under the Penal Code don't apply to workings of the Civil Service Commission, which is an independent agency, not an “employing agency.”
The newspaper also argues that the commission hearings are not judicial proceedings, which is what the Penal Code section protecting police records specifically covers.
Everett L. Bobbitt, a San Diego lawyer who represents police officers and their labor unions and is handling this case, disagreed. Bobbitt said that if the material is confidential in one area, it has to remain confidential everywhere.
The Public Records Act can't be used to get around those protections, he said. To do so would allow criminal defense attorneys and others to use civil service hearings to harvest critical information about police.
“You don't want people who are suing a deputy sheriff to be able to go through those records,” he said.
In 2003, the Union-Tribune tried to report on a Civil Service Commission hearing. A sheriff's deputy, the newspaper later learned, had been disciplined for how he handled a domestic violence call in 2002.
Records obtained by the paper showed the Sheriff's Department fired the deputy because he didn't make an arrest even though the female victim had complained her husband had assaulted her and had the injuries to show it.
The deputy also didn't write a report and changed the entry in the patrol log, downgrading the seriousness of the call and writing there were no signs of injuries.
The deputy appealed and asked that the hearing be closed. The commission had adopted new rules allowing such closures, if the deputy requested it, in the wake of a San Diego appeals court decision one year earlier in a separate case.
That narrow ruling held that information taken directly from the deputy's personnel file could not be released but didn't address whether other information not in the file – or testimony based on information from the file – was also confidential.
The newspaper filed a request for information about the hearing, and the county released documents describing the incident but the name of the deputy was withheld. The privacy of the female victim was not so carefully guarded; her name appears frequently in the released documents.
The paper also learned that no hearing was held: Instead, the deputy withdrew the appeal and his discipline was changed to “terminated-resignation by mutual consent.”
The newspaper sued challenging the secrecy and lost in Superior Court. The 4th District Court of Appeals sided with the paper, ruling that commission records that are not documents directly from the personnel file can be released.
The appeals court ruled that two exemptions in the Public Records Act can't be used to deny access to the information. The unions appealed, setting the stage for the hearing this week.
Bobbitt argues that anything said about a police officer – name, birthday, rank – is in the police personnel file and is protected. When a civil service commission hears an appeal it is using information from that file and therefore can't publicize it, he said.
Guylyn Cummins, an attorney for The Copley Press, said such a position would create an absurd situation – and one that the Legislature did not intend.
“You would be transforming every witness (in a civil service hearing) into a secret personnel file,” Cummins said.
In court papers, Cummins argued that the “shroud of secrecy requested by the (police) unions is not sanctioned by law and unlike any afforded other public employees.”
The case has attracted statewide attention. A coalition of media organizations is supporting The Copley Press, and the state Personnel Board also weighed in urging that appeals hearing for police be open and the records subject to disclosure.
Several chapters of the American Civil Liberties Union also have submitted legal papers supporting the newspaper, arguing that “public accountability is essential to a free society.”
Two police organizations have sided with the deputy sheriff's organization, filing documents urging privacy for officers. San Diego County lawyers also support confidentiality.
Through it all, the county's Civil Service Commission has continued to close hearings when deputies request secrecy. Since August 2003, about 15 closed hearings have been held, according to data from the commission.
A ruling for the police could also impact the work of civilian review boards and determine how much information – if any – they could release.
“I think it would undermine the civilian review process in a lot of cities,” said Barbara Attard, former head of the Berkeley citizen review board and now the independent police auditor in San Jose. “That would go way beyond what the original law intended.”
In San Diego, the county Citizens Law Enforcement Review Board has been operating under temporary rules while the case is pending, under advice from county lawyers. The board no longer issues public reports and hearings on citizen complaints are conducted in closed session, said John Parker, the board's executive director.
The board has asked to alter those procedures, adopted in the wake of the court cases in San Diego, but was told to wait until a final ruling from the Supreme Court, Parker said.
At issue is the extent that officers – such as deputy sheriffs and police officers – can keep their job performance issues private and shielded from public scrutiny.
At oral arguments Wednesday, the court will grapple with the question of whether the state Public Records Act allows the public to get the identify of a disciplined police officer and other information from a Civil Service Commission proceeding.
Media groups are urging the court to go further, and declare that the right of access to civil and criminal court cases – guaranteed by the First Amendment – also should extend to quasi-judicial or administrative agencies, such as a civil service board.
While it is doubtful that the justices will go that far, the dispute raises important questions about the public's ability to monitor police officers who committed misconduct and how they are disciplined by public agencies that employ them.
In the past few years, appeals courts across the state have issued sometimes conflicting rulings on where the line should be drawn.
A ruling that sides with peace officers and their unions could close down civil service hearings where officers appeal discipline at local and state levels.
It also could alter the work of the handful of citizen review boards that have sprouted across the state to independently monitor police activity.
“Where does it stop?” said Terry Francke, a lawyer with the nonprofit public access advocacy group Californians Aware. “They are saying the public really never has any right to know anything about a peace officer, other than what you see on the street. What is the limit of the secrecy?”
The current case began in in 2003 when The Copley Press, publisher of The San Diego Union-Tribune, sued over the county Civil Service Commission's decision to close a hearing concerning the discipline of a sheriff's deputy, and the agency's refusal to release information about the hearing sought under the state Public Records Act.
The case is thick with law – dealing with chunks of the state Penal Code, Government Code and Evidence Code.
A section of the state Penal Code says police officer personnel records maintained by an “employing agency” are confidential in civil and criminal cases, and sets out an exacting process under which limited information from the files can be released to parties in a case.
The Public Records Act allows citizens access to government records, though the law is full of exceptions to that general rule.
The newspaper contends that the protections given to police officers under the Penal Code don't apply to workings of the Civil Service Commission, which is an independent agency, not an “employing agency.”
The newspaper also argues that the commission hearings are not judicial proceedings, which is what the Penal Code section protecting police records specifically covers.
Everett L. Bobbitt, a San Diego lawyer who represents police officers and their labor unions and is handling this case, disagreed. Bobbitt said that if the material is confidential in one area, it has to remain confidential everywhere.
The Public Records Act can't be used to get around those protections, he said. To do so would allow criminal defense attorneys and others to use civil service hearings to harvest critical information about police.
“You don't want people who are suing a deputy sheriff to be able to go through those records,” he said.
In 2003, the Union-Tribune tried to report on a Civil Service Commission hearing. A sheriff's deputy, the newspaper later learned, had been disciplined for how he handled a domestic violence call in 2002.
Records obtained by the paper showed the Sheriff's Department fired the deputy because he didn't make an arrest even though the female victim had complained her husband had assaulted her and had the injuries to show it.
The deputy also didn't write a report and changed the entry in the patrol log, downgrading the seriousness of the call and writing there were no signs of injuries.
The deputy appealed and asked that the hearing be closed. The commission had adopted new rules allowing such closures, if the deputy requested it, in the wake of a San Diego appeals court decision one year earlier in a separate case.
That narrow ruling held that information taken directly from the deputy's personnel file could not be released but didn't address whether other information not in the file – or testimony based on information from the file – was also confidential.
The newspaper filed a request for information about the hearing, and the county released documents describing the incident but the name of the deputy was withheld. The privacy of the female victim was not so carefully guarded; her name appears frequently in the released documents.
The paper also learned that no hearing was held: Instead, the deputy withdrew the appeal and his discipline was changed to “terminated-resignation by mutual consent.”
The newspaper sued challenging the secrecy and lost in Superior Court. The 4th District Court of Appeals sided with the paper, ruling that commission records that are not documents directly from the personnel file can be released.
The appeals court ruled that two exemptions in the Public Records Act can't be used to deny access to the information. The unions appealed, setting the stage for the hearing this week.
Bobbitt argues that anything said about a police officer – name, birthday, rank – is in the police personnel file and is protected. When a civil service commission hears an appeal it is using information from that file and therefore can't publicize it, he said.
Guylyn Cummins, an attorney for The Copley Press, said such a position would create an absurd situation – and one that the Legislature did not intend.
“You would be transforming every witness (in a civil service hearing) into a secret personnel file,” Cummins said.
In court papers, Cummins argued that the “shroud of secrecy requested by the (police) unions is not sanctioned by law and unlike any afforded other public employees.”
The case has attracted statewide attention. A coalition of media organizations is supporting The Copley Press, and the state Personnel Board also weighed in urging that appeals hearing for police be open and the records subject to disclosure.
Several chapters of the American Civil Liberties Union also have submitted legal papers supporting the newspaper, arguing that “public accountability is essential to a free society.”
Two police organizations have sided with the deputy sheriff's organization, filing documents urging privacy for officers. San Diego County lawyers also support confidentiality.
Through it all, the county's Civil Service Commission has continued to close hearings when deputies request secrecy. Since August 2003, about 15 closed hearings have been held, according to data from the commission.
A ruling for the police could also impact the work of civilian review boards and determine how much information – if any – they could release.
“I think it would undermine the civilian review process in a lot of cities,” said Barbara Attard, former head of the Berkeley citizen review board and now the independent police auditor in San Jose. “That would go way beyond what the original law intended.”
In San Diego, the county Citizens Law Enforcement Review Board has been operating under temporary rules while the case is pending, under advice from county lawyers. The board no longer issues public reports and hearings on citizen complaints are conducted in closed session, said John Parker, the board's executive director.
The board has asked to alter those procedures, adopted in the wake of the court cases in San Diego, but was told to wait until a final ruling from the Supreme Court, Parker said.