Untitled California Attorney General Opinion

Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

JOHN K. VAN DE KAMP

Attorney General

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OPINION : No. 88-306

:

of : July 13, 1988

:

JOHN K. VAN DE KAMP :

Attorney General :

:

CLAYTON P. ROCHE :

Deputy Attorney General :

:

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THE HONORABLE BYRON SHER, Member of the California

Assembly, has requested an opinion on the following questions:

1. May a public agency release to the public summary

information from records maintained pursuant to section 832.5 of

the Penal Code?

2. May a public agency compile and release to the public

statistical information concerning the types of citizens'

complaints filed pursuant to section 832.5 of the Penal Code and

the disposition of such complaints?

CONCLUSIONS

1. Section 832.7 of the Penal Code by its

confidentiality and disclosure provisions bars a public agency from

releasing to the public summary information from records maintained

pursuant to section 832.5 of the Penal Code.

2. Section 832.7 of the Penal Code by its

confidentiality and disclosure provisions bars a public agency from

compiling and releasing to the public statistical information

concerning the types of citizens' complaints filed pursuant to

section 832.5 of the Penal Code and the disposition of such

complaints.

ANALYSIS

Section 832.5 of the Penal Code 1 requires all

departments and entities which employ peace officers to establish

a procedure for citizens' complaints against departmental

personnel. That section provides:

"(a) Each department or agency in this state which

employs peace officers shall establish a procedure to

investigate citizens' complaints against the personnel of

such departments or agencies, and shall make a written

description of the procedure available to the public.

"(b) Complaints and any reports or findings

relating thereto shall be retained for a period of at

least five years."

The courts have stated that one of the purposes of this

1974 enactment (Stats. 1974, ch. 29), which originally applied only

to sheriffs' departments and city police departments but the

coverage of which was expanded in 1978 (Stats. 1978, ch. 630), was

a desire on the part of the Legislature to encourage citizens'

complaints. (Pena v. Municipal Court (1979) 96 Cal.App.3d 77, 82).

Chapter 630, Statutes of 1978, which expanded the

coverage of section 832.5, also enacted section 832.7 and Evidence

Code sections 1043 and 1045. These amendments followed in the wake

of the California Supreme Court's decision in Pitchess v. Superior

Court (1974) 11 Cal.3d 531 to provide the rules with respect to

accessing records of citizens' complaints. In Pitchess the court

permitted discovery of citizens' complaints in a criminal case

under informal rules relating to criminal discovery coupled with

the "balancing test" provided for in section 1040, subdivision

(b)(2) of the Evidence Code for disclosure of "official

information." The 1978 amendments substituted statutory procedures

for so-called "Pitchess motions."

Section 832.7 is the focus of this opinion. That section

presently provides:

"Peace officer personnel records and records

maintained 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 by discovery pursuant to Sections 1043 and 1046 of

the Evidence Code. This section shall not apply to

investigations or proceedings concerning the conduct of

1 All section references are to the Penal Code unless otherwise

indicated.

2. 88-306

police officers or a police agency conducted by a grand

jury or a district attorney's office."2

The addition of section 832.7 coupled with Evidence Code

sections 1043 and 1045 in 1978 was to protect the right of privacy

of peace officers who were the subject of citizens' complaints, and

to make their personnel records, which include such complaints,

privileged material. This purpose of protecting peace officers'

right of privacy is evidenced specifically in section 832.8. That

section defines peace officers' "personnel records" for purposes of

section 832.7 and includes "(e) [c]omplaints, or investigations of

complaints. . . or (f) [a]ny other information the disclosure of

which would constitute an unwarranted invasion of personal

privacy." (See also generally City of Santa Cruz v. Superior Court

(1987) 190 Cal.App.3d 1669, 1674; Herrera v. Superior Court (1985)

172 Cal.App.3d 1162-1163; Arcelona v. Municipal Court (1980) 113

Cal.App.3d 523, 532.)

Additionally, the confidentiality provisions of section

832.7 would also appear to be intended to encourage citizens to

make complaints against peace officers by shielding their

complaints from undo publicity.

We are asked with respect to these provisions:

1. Whether a public agency may release to the public

summary information from the records maintained pursuant to section

832.5; or

2. Whether a public agency also may compile and release

to the public statistical information concerning the types of

citizens' complaints filed and the disposition of such complaints.

1. The Release of Summary Information

As to the possible release of summary information to the

public, a number of possible examples were supplied to us with the

request for our opinion, progressing from very summary information

to a more detailed summary. Several are set forth in the Appendix

hereto.

2 Section 1043 of the Evidence Code provides the procedure for

discovery of records maintained pursuant to section 832.5. Section

1045 of the Evidence Code implements that section, including an in

camera inspection by the court of the records sought. Section 1046

of the Evidence Code, added in 1985 (Stats. 1985, ch. 539),

provides that where the party requesting discovery is alleging that

excessive force was used in an arrest, a copy of the police report

must accompany the discovery motion.

3. 88-306

The issue is whether section 832.7 prohibits the release

by the police agency of such summaries. We conclude that it does.

Returning to the wording of section 832.7, we note that

the wording is clear. "Peace officer personnel records and records

maintained pursuant to section 832.5, or information obtained from

these records, are confidential. . . ." (Emphasis added.) All of

the examples set forth in the appendix contain "information

obtained from" records maintained pursuant to section 832.5. The

section contemplates disclosure of such information only (1)

pursuant to discovery motions and (2) in investigations or

proceedings of the grand jury or the district attorney's office.

Accordingly, release of information in other situations would

constitute a clear violation of the section.

Statutes are to be literally applied according to their

plain language unless to do so would produce absurd results or

would defeat the manifest intention of the Legislature. (People v.

Belleci (1979) 24 Cal.3d 879, 884; California Highway Patrol v.

Worker's Compensation Appeals Board (1986) 178 Cal.App.3d 1016,

1024.) No absurdity would result from not permitting the release

of summary information obtained from police reports.

Furthermore, we believe it is significant that the

Legislature in section 832.7 designated citizens' complaint records

and information obtained therefrom to be confidential.

Confidential means "l: . . . not publicly disseminated: PRIVATE,

SECRET. . . ." (Webster's New Internat. Dict. (3d. ed. 1961

p. 476.) Thus, the Legislature did not in section 832.7 vest any

discretion in a public agency as to whether or not to disclose this

information. This is to be compared with section 6254 of the

Government Code, a part of the California Public Records Act, where

that Act in section 6254 specifies several categories of records

which are exempt from public disclosure but thereafter specifies

that "[n]othing in this section prevents any agency from opening

its records concerning the administration of the agency to public

inspection, unless disclosure is otherwise prohibited by law ."

(Emphasis added.) If the Legislature had vested discretion in the

public agency to disclose information encompassed by section 832.7,

such discretion would have tended to defeat the purpose for which

the section was enacted.

Accordingly, to apply section 832.7 literally would in no way

defeat the manifest intention of the Legislature.

Accordingly, we conclude that a police agency may not

release summary information concerning citizens' complaints filed

pursuant to section 832.5. Such information is confidential and

the agency has a statutory duty to protect that confidentiality.

(Cf. Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d

931, 942, discussing Younger v. Berkeley City Council (1975) 45

4. 88-306

Cal.App.3d 825, 832-833; 71 Ops.Cal.Atty.Gen. 1 (1988), (Opn. No.

87-904, dtd., 1/5/88.)3

2. The Compilation And Release Of Statistical Data

The second question presented is whether a public

agency may compile and release statistical information concerning

the types of citizens' complaints filed pursuant to section 832.5

and the disposition of such complaints.

Returning again to the language of section 832.7, we note

again that the confidentiality provisions apply to "records

maintained pursuant to section 832.5, or information obtained from

these records. . . ." (Emphasis added.) Literally, statistical

information would be "information obtained from these records"

within the wording of section 832.7. The fact that such

information may consist of an amalgamation of many bits of

information would not change or alter their source, that is, "from

these records."

Accordingly, an application of the "plain meaning rule"

of statutory interpretation (People v. Belleci, supra, 24 Cal.3d

879, 884; California Highway Patrol v. Worker's Compensation

Appeals Board, supra, 178 Cal.App.3d 1016, 1024), would also

preclude the dissemination of statistical information to the public

derived from citizens' complaint records unless to do so would be

contrary to the manifest intent of the legislative, or would

produce absurd results.

With respect to legislative intent, we note that there is

nothing in the law which provides for the compilation and issuance

of such statistical information to the public by individual police

agencies. However, there is provision for a compilation and

publication of such statistical information in section 13012 with

respect to this department's annual crime report. That section

provides:

"The annual report of the department [of Justice]

provided for in Section 13010 shall contain statistics

showing:

" . . . . . . . . . . . . . . . . . . . . . . .

3 Younger v. Berkeley City Council also held that the special

confidentiality provisions of the Penal Code also superseded any

possible general provisions of the Public Records Act, Government

Code, section 6250 et seq., which might be urged to permit the

disclosure of the confidential records involved therein.

5. 88-306

"(d) The number of citizens complaints received by

law enforcement agencies under Section 832.5. Such

statistics shall indicate the total number of such

complaints, the number alleging criminal conduct of

either a felony or misdemeanor, and the number sustained

in each category. The report shall not contain a

reference to any individual agency but shall be by gross

numbers only. . . . "4

Accordingly, the Legislature did not ignore the matter of

releasing statistical information concerning citizens' complaints

made pursuant to section 832.5. It directly addressed the matter

in section 13012 by designating the type of statistics to be

released and the agency which should release them, that is, the

State Department of Justice.

Furthermore, an examination of our codes discloses that

the Legislature has specifically provided in a number of instances

for the publication of statistical data derived from confidential

information in other contexts. Thus, with respect to personal tax

information, section 19289 of the Revenue and Taxation Code

provides:

"This article does not prohibit the publication of

statistics so classified as to prevent the identification

of particular reports or returns."

Section 211.5 of the Health and Safety Code provides with respect

to morbidity and mortality studies:

". . . Nothing in this section shall prohibit the

publishing by the state department of statistical

4 For example, the report "Crime and Delinquency in

California", 1986, page 124, stated statistics as follows:

TABLE A-1

CITIZENS' COMPLAINTS

AGAINST PEACE OFFICERS, 1986

Complaints Number reported Number sustained

TOTAL....... 12,811 2,412

Total criminal.. 728 160

Felony....... 245 49

Misdemeanor 483 111

6. 88-306

compilations relating to morbidity and mortality studies

which do not identify individual cases and sources of

information or religious affiliations."

Section 10129 of the Health and Safety Code provides with respect

to medical and health reports filed as vital statistics:

"With the exception of statistical tabulation

purposes, the medical and health report shall be kept

confidential and access to such report shall be limited

to the following persons: . . . ."

And section 11144 provides as to confidential state summary

criminal history information on file with the Department of

Justice:

"(a) It is not a violation of this article to

disseminate statistical or research information obtained

from a record, provided that the identity of the subject

of the record is not disclosed. . . ."

The specific inclusion in statutes such as those above of

an exception as to the release of statistical information is strong

evidence that the Legislature did not intend a similar exemption

for each public agency maintaining records pursuant to section

832.5. (See Safer v. Superior Court (1975) 15 Cal.3d 230, 237-238:

"its [the Legislature's] articulation of a specific statutory

authorization in that situation points to the absence of such

authority in the instant case.") This would seem even particularly

true in our situation where the Legislature has specifically

provided for the publication of statistics by the Department of

Justice, and has defined the scope of those statistics very

narrowly.

The question whether to permit publication of statistics

in this area is a policy question. While there are strong policy

arguments made in favor of release of this statistical information,

we believe that the Legislature in 1) not specifically providing

for the publication of statistics locally and 2) specifically

providing for the publication of statistics on a statewide basis by

the Department of Justice has demonstrated that it has made the

policy decision against local publication. Accordingly, we

conclude that a public agency may not on its own motion compile and

release to the public statistical information concerning the types

of citizens' complaints filed pursuant to section 832.5 of the

Penal Code and the disposition of such complaints.

* * * *

7. 88-306

EXAMPLE #1

LOG NO. NATURE OF COMPLAINT/INVESTIGATION DISPOSITION

1 The complainant telephoned the Not

department regarding a police Sustained

officer allegedly speeding in a

marked police car. The investiga­ tion was unable to verify that the

officer had, in fact, been speeding.

EXAMPLE #2

1 The complainant phoned the Exonerated/

department stating that she was Unfounded

improperly issued a traffic

citation. She refused to sign the

citation, was not taken to see a

judge and she was injured as a

result of being handcuffed.

The investigation revealed that the

complainant was stopped for

speeding and was issued a citation.

The complainant refused to sign the

citation so she was arrested. The

complainant was told that she might

be booked into jail before seeing a

judge so she signed the citation.

The officer acted properly in

handcuffing the complainant.

EXAMPLE #3

The complainant called the police Exonerated

department and alleged that an

officer used excessive force in

applying handcuffs to him and

consequently caused complainant to

fracture his wrist. In addition,

the officers failed to allow a

friend of complainant's to take

complainant's car at the time of

his arrest.

8. 88-306

The investigation revealed that the

officers stopped complainant after

receiving a vehicle description of

a car used in an armed robbery.

After stopping the car, complainant

fled on foot and was pursued by one

officer. The other officer

remained at the car stop as

additional suspects were in the

vehicle. The pursuing officer

apprehended complainant and a

struggle ensued. During the

confrontation complainant wrestled

with the officer and at one point

attempted to draw a knife from his

waistband. The officer seized his

wrist and complainant continued to

struggle. During the confrontation

complainant's wrist was fractured

unavoidably. The officer acted

properly in effecting the arrest

with an armed suspect.

9. 88-306