California Supreme Court Strongly Reaffirms Right of Access to Information about Public Employees

By Kelli L. Sager, Alonzo Wickers and Rochelle L. Wilcox
[August 2007]

The California Supreme Court issued two decisions today that strongly reaffirm the public’s right of access to information about public employees. Although both decisions were issued by a divided Court, the majority in each case emphasized the public’s right of access to government information under the California Public Records Act (CPRA), and restricted the ability of government agencies to withhold information based on unsubstantiated claims of privacy.

Peace Officer Names, Employing Departments and Dates of Employ Must Be Disclosed

In California Commission on Peace Officer Standards and Training v. Superior Court (Los Angeles Times Comm’n LLC, Real Party in Interest), No. S134072, the Court held that peace officer names, employing departments and dates of employ are not peace officer “personnel records” as defined by Penal Code § 832.8 (part of the “Pitchess Statutes,” which create a conditional privilege in certain peace officer records). Recognizing the significant role peace officers play in society and the importance of public access to information about them, the Court rejected POST’s claim that names and places and dates of employment for officers were exempt from disclosure, holding that “in defining personnel records the Legislature drew the line carefully, with due concern for the competing interests.” The Court also held that the information sought is not exempt under Government Code § 6254(c), which protects, among other things, “personnel … files, the disclosure of which would constitute an unwarranted invasion of privacy.” The Court found that the information at issue is not private and that the public’s interest in information about peace officers outweighs the unsubstantiated concerns about peace officer safety and efficacy, and therefore those concerns cannot support withholding the information. The Court remanded to the trial court to allow POST an opportunity to demonstrate that information concerning specific officers should be exempt if necessary to protect undercover officers or others for whom anonymity is required.

Justice Joyce L. Kennard filed an opinion concurring in the conclusion that peace officer names must be disclosed, but she disagreed that employing departments and dates of employ must be disclosed. Justices Ming W. Chin and Marvin R. Baxter dissented, believing that the information was exempt from disclosure by virtue of the Pitchess Statutes, and on the ground that its disclosure would constitute an “unwarranted invasion of personal privacy” under Government Code § 6254(c).

Public Employee Salaries Must Be Disclosed

In International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (Contra Costa Newspapers, Inc., Real Party in Interest), No. S134253, the Court held that names and salaries of public employees earning $100,000 or more per year, including peace officers, must be disclosed under the CPRA. Here, too, the Court broadly reaffirmed the importance of public access to government information, necessary to ensure accountability. Balancing individual interest in financial privacy—repeatedly recognized by California courts—against the public’s interest in the salary information, the Court held that the public interest prevailed. The Court explained that any public employee expectation that his or her salary would be private “is not a reasonable one” and therefore receives “diminished weight.” In contrast, the Court held that “[i]t is difficult to imagine a more critical time for public scrutiny of its governmental decision-making process than when the latter is determining how it shall spend public funds.” The Court recognized that under some circumstances, a particular public employee may have a legitimate claim to privacy, but found no such circumstance here. Finally, the Court rejected the argument that peace officer payroll information should be exempt under the Pitchess Statutes, concluding that the legislature’s failure to list “salary” among the protected information was intentional.

As in the POST decision, the Court was divided. Justices Kennard, Baxter and Chin each filed opinions concurring in and dissenting from the majority opinion. Justice Kennard concurred in the result reached by the majority, although she would have reached the result specific to peace officers in a different way, by relying on the “plain language” of the Pitchess Statutes. Justice Baxter’s short opinion agreed with the majority “[e]xcept as to peace officers,” and would have held that peace officer names are protected by the Pitchess Statutes and thus exempt from disclosure. Justice Chin filed a more extensive opinion, also agreeing with the majority “[e]xcept as to peace officers”—although pursuant to a different analysis—and reiterating his dissent from POST asserting that peace officer names fall within the information protected by the Pitchess Statutes.