Landmark appellate decision on access to police misconduct records stands

The California Supreme Court recently rejected a request for depublication of an opinion issued by the 1st District Court of Appeal in Bondgraham v. Superior Court of Alameda County, 95 Cal.App.5th 1006. In doing so, the Court also declined to review the case on its own motion.

The Court’s decision means that the 1st District’s opinion will remain published and binding on all state trial courts. This is significant because the 1st District’s opinion includes a number of consequential holdings relating to the disclosure requirements of Penal Code Section 832.7, which was amended in 2018 by Senate Bill 1421 to greatly expand public access to peace officer personnel records relating certain types of misconduct and use of force.

In Bondgraham, two journalists challenged certain redactions to documents produced by the City of Oakland in response to the journalists’ California Public Records Act requests for records and information regarding the Celeste Guap scandal, which involved several Oakland police officers who allegedly sexually assaulted a minor referred to by the 1st District as “Celeste Guap.”

Specifically, the City redacted various portions of information contained in a 252-page report titled “Report of Internal Investigation File No. 15-0771” that the City released in response to the requests. The redaction information included the report’s training and policy recommendations, witness statements containing general information about Guap and her social-media use, screenshots of Guap’s Facebook profile, portions of Guap’s statements to investigators, portions of the report consisting of evaluations of certain officers’ conduct in other incidents, and the names of certain officers.

After a trial court ruled that the redactions were permissible, the journalists appealed to the 1st District, which issued an opinion overruling the trial court with respect to most of the redactions and ordering the trial court to vacate its order and to enter a new or modified order favorable to the journalists.

In particular, the 1st District’s opinion includes at least three significant holdings that clarify the scope of records and information which public agencies may properly withhold from disclosure under Penal Code Section 832.7. These three holdings are discussed in turn.

First, one significant holding relates to the City’s redaction of the report to remove information relating to the conduct of certain officers in other incidents. The City argued that these redactions were permissible under various provisions, including, in relevant part, Penal Code Section 832.7(b)(4), which provides that 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.”

However, the 1st District rejected this argument and held that Penal Code Section 832.7(b)(4) was not an appropriate basis for the redactions. Specifically, the 1st District held that Penal Code Section 832.7(b)(4) only allows an agency to withhold entire records, not just information contained within a record. The court pointed to the use of the word “record” in Penal Code Section 832.7(b)(4), as opposed to the word “information,” as is used in other provisions of Penal Code Section 832.7 and the California Public Records Act. The court noted that, in using the word “record,” rather than “information,” the legislature did not intend to allow the redaction of a record to remove information relating to other incidents. The court noted that the information at issue here was contained in a singular record, the Guap report, even if the investigation detailed in the report involved allegations against multiple officers or investigated multiple incidents of potential misconduct.

As such, the 1st District holding provides a crucial limitation to the scope of the Penal Code Section 832.7(b)(4) exemption – information relating to a separate incident may not be redacted from a record under Penal Code Section 832.7(b)(4) alone.

Second, another significant holding relates to the City’s redaction of peace officer names from the records. The City argued, in relevant part, that the redactions were permissible under Penal Code Section 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.”

However, the 1st District also rejected this argument, holding instead that the City improperly asserted this exemption in the context of the redacted information. In particular, the court pointed to two separate examples of redactions based on Penal Code Section 832.7(b)(6) that did not conform with the exemption. First, the City had redacted sections of the report detailing statements by officers, whether the statements were consistent with evidence, and previous complaints of truthfulness regarding each officer. Second, the City had also redacted summaries of interviews with officers discussing each officer’s social media accounts, whether the officer had received or accepted “friend requests” from or otherwise interacted with Guap on social media, and minimal descriptions of conversations with other officers regarding Guap. The court noted that, in these contexts, the City could not establish that redactions were appropriate under Penal Code Section 832.7(b)(6) because they could not “fairly be described as one officer describing or witnessing another officer’s misconduct.”

Although it seems that the 1st District left open the possibility that Penal Code Section 832.7(b)(6) may be used to withhold officer names as witnesses in other contexts (notwithstanding the journalists claims otherwise), this holding at a minimum rules out the possibility of agencies invoking this exemption in the contexts described by the 1st District. As such, the court’s ruling again provides a further limitation to the scope of an exemption under Penal Code Section 832.7.

In light of the California Supreme Court’s denial of the request for depublication of the 1st District’s opinion, the 1st District’s holdings in the opinion, including those detailed above that limit certain exemptions under Penal Code Section 832.7, will remain binding on state trial courts.