The 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
APPENDIX
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