Critical Ruling on Access to Police Misconduct Records
In early 2024, the California Supreme denied a request for de-publication of an opinion by the First Appellate District Court of Appeal in Bondgraham v. Superior Court of Alameda County (2023) 95 Cal. App. 5th 1006. By doing so, the Supreme Court also declined to review the case on its own motion.
This means that the First District’s ruling will not only remain published, but will be binding on all state trial courts. This is significant for any criminal defense attorney seeking disclosure of police misconduct files, as addressed in Bondgraham, but also in the context of a ‘Pitchess” motion Pitchess v. Superior Court (1974) 11 Cal. 3d 531; see also Evidence Code § 1043 and Penal Code § 833.5.
In 2018, Penal Code § 832.7 was amended by Senate Bill 1421 to greatly expand public access to police officer records relating to specified types of misconduct and use of force. In Bondgraham, two journalists challenged redactions to documents produced by the City of Oakland in response to the journalists’ California Public Records Act requests for information regarding the Celeste Guap scandal. The Celeste Guap scandal involved several Oakland police officers who allegedly sexually assaulted a minor referred to the First District as “Celesta Guap.”
The City of Oakland had redacted various portions of information in a 252-page report that the City released in response to the requests. The redactions included information concerning training and policy recommendations, witness statements containing information about Guap and her social media use, screen shots of Guap’s Facebook profile, portions of Guap’s statements to investigators and the names of several officers.
After a trial court concluded that the redactions were permissible, the journalists appealed to the First Appellate District, which issued an order overruling the trial court on most of the redactions.
The City had relied upon Penal Code § 832.7(b)(4) to redact information about certain officers involved in prior, separate investigations. Under section 832.7(b)(4), “a record from a separate and prior investigation or assessment of a separate incident shall not be released unless it is independently subject to disclosure under this subdivision.”
The First District rejected this argument and held that § 832.7(b)(4) was not an appropriate basis for the redactions. The First District held that this law permits an agency to withhold entire records, but not information contained within a record, noting that the text of § 832.7(b)(4) refers to “a record” and not certain information.
Second, the City redacted certain officer names from the report under Penal Code § 832.7(b)(6)(B), which provides that an agency “shall redact a record disclosed pursuant to this section” in order to “preserve the anonymity of whistleblowers, complainants, victims and witnesses.” The names were redacted from summaries of interviews with officers and whether the officers had accepted “friend requests” from Guap on social media.
The First District said such redactions, in this context, did not fall under § 832.7(b)(6)(B) because they could not ‘fairly be described as one officer describing or witnessing another officer’s misconduct.”
While this ruling seems to promote disclosure of officer identities, it also seems to instruct a police agency on how to, in the future, redact officer identities in an acceptable way. Nonetheless, it does rule out use of § 832.7(b)(6)(B) in the context of officers using social media “friend requests” and in summaries of interviews with officers.
We present this article because in Pitchess motions, the court may order the production of certain officer records. The police agency records may then be produced, but with redactions. It is therefore good to know what types of redactions are improper and what authority can be used to request the police agency disclose further information.
We find that when production of certain records is ordered, it is often heavily redacted, which can be frustrating and perplexing, leading to the feeling of having “Pyrrhic victory” of sorts and more importantly, making defendant question his attorney. Defendant often wants to know if the redactions can be challenged and this ruling, Bondgraham, seems to offer that much-needed guidance.
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