09/01/2006

Officer records deemed secret in Calif.

State Supreme Court rules that the public has no right to information about law enforcement personnel involved in disciplinary cases
 
By Maura Dolan
Los Angeles Times 
Copyright 2006 Los Angeles Times
All Rights Reserved

SAN FRANCISCO — Police disciplinary records will become more secret under a far-reaching ruling Thursday by the California Supreme Court.

The court ruled 6 to 1 that the public may not have access to police discipline records filed during administrative appeals, including the names of officers who have been terminated, unless the officers waive their rights to privacy.

The decision is expected to shut down public access to information about officers who come before civil service commissions, civilian review boards and other panels that hear police discipline cases.

The ruling does not, however, automatically close records in cases that go to Superior Court. "That will be the next battleground," said Deputy San Diego County Counsel William H. Songer, who represented the county in a lawsuit brought by the media.

As a result of Thursday's decision, "We have pretty much of a secret police force in this state," said Tom Newton, general counsel of the California Newspaper Publishers Assn. He said the ruling frowned upon even disclosing the names of officers involved in shootings.

Duke Law School professor Erwin Chemerinsky, a longtime police reform leader who filed a friend-of-the-court brief in the case, called the ruling "a stunning loss for the public and the right to know."

"It is very far-reaching," said Chemerinsky, a member of a board that studied the Rampart police scandal. "This is just a tremendous loss in the ability to check up on what police officers are doing."

Everett L. Bobbitt, who represented the San Diego police and sheriff deputies association in the case, agreed that the ruling will make it difficult, if not impossible, for the public to learn about officers who have committed misconduct.

Referring to the media, he said, "You are going to have to go back to your sources, you know, people who talk out of turn, which you guys do a good job of."

He said the police unions have sought privacy to prevent criminal defense lawyers from scouring public records for dirt on officers who are witnesses in cases.

"It is in the public interest not to have your police officers run through the wringer on many times bogus information," Bobbitt said.

Although the state high court did not specifically rule on whether appeal hearings must be closed to the public, all the case law cited in the decision means "there is no way you are going to get there," Bobbitt said.

Kelli Sager, a lawyer for the news media, including the Los Angeles Times, disagreed. She said the ruling did not foreclose open meetings in discipline appeal cases. Until Thursday's ruling, the public sometimes learned about disciplined officers only when they appealed sanctions to civil service or other personnel commissions. Internal discipline is confidential.

Such information has played a defining role in the recent history of Los Angeles, and helped usher in police reform. Both the 1991 Christopher Commission report, which analyzed the beating of Rodney G. King, and the Los Angeles Police Department's internal report on the Rampart scandal named officers involved in use of force incidents, sparking widespread public debate and eventual adoption of reform measures, including tracking of problem officers.

The Los Angeles Police Commission, on the advice of the city attorney, stopped naming officers involved in use-of-force incidents this winter. A spokesman for City Atty. Rocky Delgadillo said his office had not determined the ruling's effect in Los Angeles.

A lawyer for the Assn. for Los Angeles Deputy Sheriffs union called the decision "a sweeping and thorough rebuke of the forces that wanted to pry into the private lives of police officers" and said it would overturn the county Civil Service Commission's decades-long practice of opening appeal hearings and documents involving sworn personnel to the public.

"This is a final and thorough examination and it was determined that these records are confidential," lawyer Richard Shinee said. Shinee added that he believes sufficient protections remain in place to ensure "miscreant" officers are identified and punished.

But several community activists called the ruling a further setback in the struggle for the public to learn about problem officers.

The only time past allegations "come out about the officer is when you go to court," said Royce Esters, Compton-based president of the civil rights group National Assn. For Equal Justice in America. "You don't know what kind of person is patrolling your streets."

Merrick Bobb, who monitors the Los Angeles County Sheriff's Department for the Board of Supervisors, said, "One can open a newspaper and see which lawyers have been disbarred and doctors whose licenses have been suspended. Because law enforcement officers have the power of life and death it is vital that police officers too should be held accountable in a public way."

The court ruling stemmed from a lawsuit filed by Copley Press Inc., owner of the San Diego Union-Tribune, against San Diego County's Civil Service Commission. In 2003, Copley learned that the commission had scheduled a closed hearing in a deputy's discipline case. The newspaper filed requests under the California Public Records Act seeking information about the deputy and later went to court to force public disclosure. The San Diego Police Officers Assn. intervened. The commission eventually disclosed that the deputy had received a termination order for failing to arrest a suspect in a domestic violence incident and then lied about it, but it refused to release his name. He eventually quit.

Seeking more information, the newspaper went to the Court of Appeal, which said the commission should have released the deputy's name and more details about the case.

The police association appealed, winning Thursday's ruling. The decision, Copley vs. Superior Court, written by Justice Ming Chin, said the county's Civil Service Commission was the equivalent of an employer, and thus required to keep disciplinary matters private.

Chin said privacy rights are important to "protecting complainants and witnesses against recrimination or retaliation, protecting police peace officers from publication of frivolous or unwarranted charges, and maintaining confidence in law enforcement agencies.

Justice Kathryn Werdegar filed the sole dissent, saying the rest of the court had misconstrued the various laws on public records and peace officers.

"The majority overvalues the deputy's interest in privacy, undervalues the public's interest in disclosure, and ultimately fails to implement the Legislature's careful balance of competing concerns in this area," Werdegar wrote.

Guylyn R. Cummins, who represented Copley, said she was disappointed.

She said the Rampart scandal in Los Angeles showed that a police department "that scrutinizes and disciplines itself" out of the public eye "doesn't work."

Several media lawyers expressed hope that the Legislature would pass a law overturning the ruling. But Bobbitt, the lawyer for the police and sheriff deputies, said the police union's lobby has "typically been stronger than the newspaper industry's."

Police unions across the state are elated with the ruling, he said. "Trust me, they will fight any changes to this decision," Bobbitt said.

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