Opinion

First Amendment Coalition v. Super. Ct.

Court: California Court of Appeal
Filed: Dec 29, 2023
Status: Published
Cited by: 0 cases
Authority: More cited than 14.7%

The opinion

Filed 12/28/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

FIRST AMENDMENT COALITION

et al.,

Petitioners,

v. A165888

SUPERIOR COURT FOR THE CITY

AND COUNTY OF SAN (San Francisco City & County

FRANCISCO, Super. Ct. No. CPF-19-516545)

Respondent;

ROB BONTA, Attorney General of

the State of California; CALIFORNIA

DEPARTMENT OF JUSTICE,

Real Parties in Interest.

In acknowledgment of the extraordinary authority vested in peace

officers and custodial officers and the serious harms occasioned by misuses of

that authority, the Legislature enacted section 832.7, subdivision (b), of the

Penal Code1 (hereafter section 832.7(b)) to promote transparency and public

access to certain records in the possession of state and local agencies. Under

section 832.7(b), records relating to officers who engage in specified types of

harmful or unlawful conduct are deemed nonconfidential and must be made

1 Unless otherwise indicated, all further statutory references are to the

Penal Code.

available for public inspection pursuant to the California Public Records Act,

Government Code sections 7920.000 et seq. (CPRA).

Though section 832.7(b)(1) calls for public availability of these

nonconfidential records “[n]otwithstanding subdivision (a) [of section 832.7],

Section 7923.600 of the Government Code, or any other law,” Government

Code section 7927.705 states the CPRA “does not require disclosure of

records, the disclosure of which is exempted or prohibited pursuant to . . .

state law.” (Italics added.) Applying settled rules of statutory construction,

we conclude that, notwithstanding Government Code section 7927.705’s

incorporation of disclosure exemptions codified outside the CPRA, section

832.7(b) supersedes state law disclosure exemptions that, like the two

statutory provisions specifically mentioned in section 832.7(b)(1), pose a

direct conflict with its decree that records within its scope are not

confidential and shall be made available to the public.

Accordingly, we shall issue a peremptory writ of mandate directing

respondent court to vacate its judgment to the extent it denies petitioners’

motion for judgment based on Government Code section 11183, which

prohibits the disclosure of subpoenaed records. In all other respects, the

petition for writ of mandate is denied.

FACTUAL AND PROCEDURAL BACKGROUND

Section 832.7(b) changed the law formerly protecting personnel records

of peace officers and custodial officers as confidential and generally exempt

from public disclosure. (Stats. 2018, ch. 988, §§ 1, 2; see Becerra v. Superior

Court (2020) 44 Cal.App.5th 897, 914–915 (Becerra).) Under the new law,

personnel records regarding specified types of peace officer and custodial

officer conduct “shall not be confidential and shall be made available for

public inspection pursuant to the [CPRA].” (§ 832.7(b)(1)(A)–(E).)

Soon after section 832.7(b) became effective in 2019, petitioners First

Amendment Coalition and KQED Inc. filed requests under the CPRA to

obtain records in the possession of the Attorney General and the Department

of Justice (collectively, the Department) relating to: (1) the discharge of a

firearm at a person by a peace or custodial officer; (2) any use of force by a

peace or custodial officer resulting in death or great bodily injury; and (3) a

sustained finding of dishonesty or sexual assault by an officer. Section

832.7(b) includes these types of records among those that are deemed not

confidential and must be made available for public inspection pursuant to the

CPRA. (See § 832.7(b)(1)(A)–(C).2) We will hereafter refer to these

nonconfidential records as “officer-related records.”

Our first decision in this matter, Becerra, supra, 44 Cal.App.5th 897,

addressed the Department’s initial objections to disclosure and held that, as a

matter of statutory interpretation, section 832.7(b) “generally requires

disclosure of all responsive records in the possession of the Department,

regardless whether the records pertain to officers employed by the

Department or by another public agency and regardless whether the

Department or another public agency created the records.” (Becerra, at

p. 910.) Becerra also concluded the CPRA’s so-called “ ‘catchall’ ”

exemption—which allows a public agency to justify the withholding of a

public record upon a showing that the public interest served by nondisclosure

2 Petitioners’ CPRA requests sought categories of records deemed

nonconfidential under section 832.7(b) as first enacted. (See Stats. 2018,

ch. 988, § 2 (Sen. Bill. No. 1421).) As will be discussed post, Senate Bill

No. 16 (hereafter Senate Bill 16) subsequently amended section 832.7(b) to

include additional categories of records relating to sustained findings of other

harmful or illegal conduct. (Stats. 2021, ch. 402, § 3.) These new categories

are not at issue in this case.

“clearly outweighs” the public interest served by disclosure (Gov. Code,

§ 7922.000)—may apply to records within the scope of section 832.7(b).

(Becerra, at p. 910.)3

Following remand, and after further litigation, petitioners voluntarily

narrowed their requests to reduce the burden of production, and the

Department produced some 3,000 documents. But relying on Government

Code section 7927.705, the Department withheld certain officer-related

records on the basis that their disclosure is either exempted or prohibited by

statutes not specifically mentioned in the CPRA. In response, petitioners

filed a motion for judgment compelling disclosure of the withheld documents.

As relevant here, the trial court interpreted Becerra as holding that

section 832.7(b) preserves all disclosure exemptions codified in the CPRA,

with the exception of Government Code section 7923.600, which section

832.7(b)(1) expressly overrides. Pursuant to that understanding, and as

pertinent here, the court ruled the Department may withhold officer-related

documents pursuant to Government Code section 11183, Penal Code section

6126.3, and Unemployment Insurance Code section 1094. The court issued

an order denying petitioners’ motion for judgment pertaining to the following

three categories of officer-related records: (1) documents obtained by the

3 Effective January 1, 2023, the provisions of the CPRA were re-enacted

with changed section numbering. (Stats. 2021, ch. 614, § 1 (Assem. Bill

No. 473).) This opinion uses the new numbering scheme, but we note the

following changes to assist readers in identifying the newly numbered

sections associated with the key sections cited in Becerra, supra, 44

Cal.App.5th 897. The CPRA’s catchall exemption is currently codified in

Government Code section 7922.000, replacing former Government Code

section 6255, subdivision (a). Government Code section 7923.600 replaces

former Government Code section 6254, subdivision (f), and Government Code

section 7927.705 replaces former Government Code section 6254, subdivision

(k).

Department under subpoena; (2) a single report prepared by the Office of the

Inspector General; and (3) records relating to unemployment benefits.

Petitioners filed a petition in this court for a writ of mandate directing

the trial court to order disclosure of these records. We issued an order to

show cause why the relief requested by petitioners should not be granted.

DISCUSSION

Under section 832.7(b), officer-related records falling within its scope

are deemed nonconfidential and open to public inspection. (§ 832.7(b)(1).)

This disclosure requirement expressly applies to records in the possession of

“a state or local agency” which relate to investigations and findings by

agencies with oversight authority over peace or custodial officers. (E.g.,

§ 832.7(b)(1)(A)–(E).) However, Government Code section 7927.705 states the

CPRA “does not require disclosure of records, the disclosure of which is

exempted or prohibited pursuant to federal or state law, including, but not

limited to, provisions of the Evidence Code relating to privilege.”

Government Code section 7927.705 is “ ‘not an independent exemption’ ” to

disclosure; rather, it “ ‘merely incorporates other prohibitions established by

law.’ ” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1283

(Copley Press).)

The question here is whether the nonconfidential officer-related records

that are subject to disclosure under section 832.7(b) may be withheld by the

Department pursuant to the state law confidentiality and disclosure

prohibitions codified in Government Code section 11183, Penal Code sections

6126 and 6126.3, and Unemployment Insurance Code section 1094. These

prohibitions are included in statutory schemes that allow the Department

and other state oversight bodies to collect records and information for various

purposes that can include the investigation of matters falling outside the

scope of section 832.7(b).

Whether section 832.7 overrides the application of these statutory

exemptions in the context of officer-related records presents an issue of

statutory interpretation, which we review de novo. (See Becerra, supra, 44

Cal.App.5th at p. 917.) The rules governing our analysis are settled. Our

goal in interpreting a statute is to effectuate the Legislature’s intent. (Davis

v. Fresno Unified School Dist. (2023) 14 Cal.5th 671, 687 (Davis).) We look

first to the statutory language, and if the language is clear and unambiguous,

we adhere to its plain meaning unless a literal interpretation would result in

absurd consequences. (Ibid.) But when the statutory language is susceptible

to more than one reasonable interpretation, we may consider other aids,

including the statute’s purpose, legislative history, and public policy. (Ibid.)

The portions of a statute must be viewed “ ‘ “ ‘ “in the context of the entire

statute and the statutory scheme of which it is a part, giving significance to

every word, phrase, sentence, and part of an act in pursuance of the

legislative purpose.” ’ ” ’ ” (Ibid.)

Section 832.7(b)(1) states: “Notwithstanding subdivision (a), Section

7923.600 of the Government Code, or any other law, [the officer-related

records described in section 832.7(b)] shall not be confidential and shall be

made available for public inspection pursuant to [the CPRA].”

Subdivision (a) of section 832.7 (hereafter section 832.7(a)) articulates the

long-established rule that peace and custodial officer personnel records are

“confidential and shall not be disclosed in any criminal or civil proceeding

except pursuant to discovery [under certain provisions of the Evidence

Code].” Section 832.7(a) prohibits disclosure of such records under the CPRA

as well. (See Copley Press, supra, 39 Cal.4th at p. 1286.) Government Code

section 7923.600 is part of the CPRA and as relevant states the CPRA “does

not require the disclosure of records of complaints to, or investigations

conducted by” the Department of Justice and any state or local police agency,

or any “investigatory . . . files compiled by any other state or local police

agency” for “correctional” or “law enforcement” purposes. Thus, section

832.7(b)(1) makes clear these statutory exemptions for personnel records and

investigatory files provide no basis for withholding officer-related records

from public inspection.

But section 832.7(b)(1), by its terms, also contemplates public

inspection of officer-related records “[n]otwithstanding . . . any other law.” In

petitioners’ view, the plain import of this language is that records within the

scope of section 832.7(b) may not be withheld based on other state laws

prohibiting or exempting their disclosure. Conversely, the Department

focuses on the latter portion of section 832.7(b)(1) specifying that officer-

related records “shall be available for public inspection pursuant to [the

CPRA].” Relying on Becerra, supra, 44 Cal.App.5th 897, the Department

contends public accessibility to officer-related records remains subject to all

codified disclosure exemptions that Government Code section 7927.705

incorporates into the CPRA. For the reasons below, we agree that Becerra is

instructive but find it calls for a more nuanced analysis here.

A. Becerra v. Superior Court

Becerra concluded as a matter of statutory interpretation that a

different provision of the CPRA—namely the CPRA’s catchall exemption now

codified in Government Code section 7922.000—may apply to records falling

within the scope of section 832.7(b). (Becerra, supra, 44 Cal.App.5th at

p. 910.) Observing that section 832.7(b)(1) starts with an explicit

contemplation that officer-related records are nonconfidential and disclosable

notwithstanding the investigatory files exemption in Government Code

section 7923.600, and that it ends with an equally explicit mandate that such

records be made available pursuant to the CPRA, Becerra concluded the

Legislature thereby “signaled its intent that officer-related records are no

longer confidential under the CPRA’s investigatory files exemption but that

the CPRA is otherwise essential to section 832.7’s operation.” (Becerra, at

p. 925.) Critically, Becerra emphasized that the phrase “ ‘[n]otwithstanding

. . . any other law’ ” is a “ ‘ “ ‘term of art’ . . . that declares the legislative

intent to override all contrary law.” ’ ” (Ibid., quoting Arias v Superior Court

(2009) 46 Cal.4th 969, 983.)

Becerra then examined whether Government Code section 7922.000’s

catchall exemption poses a direct conflict with section 832.7(b)’s call for the

disclosure of officer-related records. (Becerra, supra, 44 Cal.App.5th at

pp. 925–927.) Among other things, Becerra observed the catchall exemption

“is an integral part of the CPRA framework that, at the outset, allows a

determination that the interest of the public is best served by the

nondisclosure of otherwise responsive records.” (Becerra, at p. 928.) As

Becerra explained, the exemption “permits withholding based on various

considerations, including public fiscal and administrative concerns regarding

the ‘ “expense and inconvenience involved in segregating nonexempt from

exempt information.” ’ ” (Ibid.) To illustrate the point, Becerra referenced

the Supreme Court’s concern that it “ ‘would not be in the public interest’ ” if

“ ‘any person requesting information, for any reason or for no particular

reason, [could] impose upon a governmental agency a limitless obligation.’ ”

(Id. at p. 927, quoting American Civil Liberties Union Foundation v.

Deukmejian (1982) 32 Cal.3d 440, 453.)

Because the CPRA’s catchall exemption allows withholding based on a

variety of competing public interests, including public fiscal and

administrative concerns, when doing so best serves the public interest,

Becerra determined the exemption is “reasonably harmonized” with the

withholding and redaction provisions of section 832.7(b), which more

narrowly concern active investigations or focus on personal information and

other specific situations triggered by such information. (Becerra, supra, 44

Cal.App.5th at p. 929.) As we reasoned, “[i]t would seem anomalous to

construe section 832.7 as requiring that records be made available pursuant

to the CPRA” while at the same time “disregarding the CPRA’s contemplation

that records should be withheld when the public interest in doing so clearly

outweighs the public interest in disclosure.” (Becerra, at p. 927, fn. 5.)

Finally, even though the catchall exemption has long applied to all

types of public record requests upon a proper showing, Becerra found it

noteworthy that the exemption has not been criticized “as an unworkable or

overly broad exemption that unduly impairs government transparency or

meaningful public access to information.” (Becerra, supra, 44 Cal.App.5th at

p. 927.)

In this case, the Department’s briefing at times correctly describes

Becerra as holding that CPRA disclosure exemptions that “do not conflict”

with or are not “directly contrary” to section 832.7(b), such as the catchall

exemption, can be invoked to withhold officer-related records. But the

Department seems to suggest Becerra construed section 832.7(b) as

preserving all nondisclosure provisions within the CPRA but for Government

Code section 7923.600’s investigatory files exemption. (See Becerra, supra,

44 Cal.App.5th at pp. 924–925.) Becerra did no such thing. Viewed in

context, Becerra’s analysis was clearly confined to the CPRA’s catchall

exemption, and it offered no opinion regarding any other CPRA or non-CPRA

disclosure exemption.

Taking our cue from Becerra’s analysis that section 832.7(b)’s

“notwithstanding” clause declares the Legislature’s intent to override all

contrary law, we now assess petitioners’ claims that application of the state

law confidentiality and disclosure prohibitions codified in Government Code

section 11183, Penal Code sections 6126 and 6126.3, and Unemployment

Insurance Code section 1094 would pose a direct conflict with section 832.7(b)

with regard to the officer-related records at issue.

B. Government Code Section 11183

The Attorney General is the “chief law officer of the State” and

exercises “direct supervision over every district attorney and sheriff . . . in all

matters pertaining to the duties of their respective offices.” (Cal. Const.,

art. V, § 13.) The Attorney General enjoys broad oversight powers and may

bring a civil action to ensure that local law enforcement agencies and their

officers do not “engage in a pattern or practice of conduct . . . that deprives

any person of rights, privileges, or immunities” protected by state or federal

law. (Civ. Code, § 52.3, subds. (a), (b).) A so-called “pattern-or-practice

investigation” seeks to identify systemic violations of individuals’ civil rights

and to provide remedial solutions through injunctive relief.

In opposing petitioners’ motion for judgment, the Department

submitted the declaration of Michael Newman, the Senior Assistant Attorney

General of the Department’s Civil Rights Enforcement Section, which

included the following representations. In December 2016, the Department

began a civil pattern-or-practice investigation into the Bakersfield Police

Department (hereafter BPD) in response to complaints and media reports

alleging excessive force and other serious misconduct. The Department

issued an investigatory subpoena for BPD’s books and records, and BPD

complied by producing relevant records. “At the conclusion of the

investigation, the Department determined that BPD engaged in a pattern or

practice of conduct that deprives persons of their constitutional rights,

including using unreasonable force, unreasonably deploying canines, and

engaging in unreasonable stops, searches, arrests, and seizures.”

Consistent with Newman’s declaration, the Department indicated

earlier in this action that it “ ‘often’ ” uses its subpoena power to obtain

necessary records from law enforcement agencies when reviewing an agency’s

decision not to file charges against an officer or independently investigating

an agency. (Becerra, supra, 44 Cal.App.5th at pp. 911–912, fn. 2.)

Alternatively, the Department “ ‘sometimes’ ” procures records pursuant to

agreements made under the condition that “ ‘the materials will remain

confidential as contemplated by Government Code section 11181.’ ” (Ibid.)

The trial court agreed with the Department that the BPD records are

categorically exempt from disclosure because they were obtained by

subpoena.

Government Code section 11183 implements Government Code sections

11180 and 11181, which together authorize state executive departments,

including the Department, to conduct investigations and audits of all subjects

under their jurisdiction. In obtaining BPD’s officer-related records, the

Department claims it acted pursuant to Government Code section 11181,

subdivision (e), which allows the issuance of subpoenas for the production of

documents and testimony “pertinent or material to any inquiry,

investigation, hearing, proceeding, or action conducted in any part of the

state.” Then, in response to petitioners’ CPRA request, the Department

withheld such records on the authority of Government Code section 11183,

which provides: “[A]n officer shall not divulge any information or evidence

acquired by the officer from the . . . subpoenaed private books, documents,

papers, or other items described in subdivision (e) of Section 11181 or any

person while acting or claiming to act under any authorization pursuant to

this article, in respect to the confidential or private transactions, property or

business of any person. An officer who divulges information or evidence in

violation of this section is guilty of a misdemeanor and disqualified from

acting in any official capacity in the department.”4 For the reasons below, we

conclude application of Government Code section 11183, in the context of

officer-related records, would pose a direct conflict with section 832.7(b).

Section 832.7(b) explicitly states that officer-related records shall be

nonconfidential and disclosable under the CPRA, contrary to the direction of

section 832.7(a), which would otherwise exempt officer personnel records

from public disclosure, and Government Code section 7923.600, which would

otherwise shield officer-related records compiled as part of an investigation

for correctional and law enforcement purposes. From this the most logical

4 Petitioners argue that none of the BPD records concerns “confidential

or private transactions, property or business of any person” as contemplated

by Government Code section 11183. We observe, however, that this statutory

language was in place before the enactment of section 832.7(b) superseded

the provisions for privacy and confidentiality of officer personnel files in

section 832.7(a) and in the CPRA’s exemption for investigatory files. (See

Stats. 2003, ch. 876, § 6 (Sen. Bill No. 434).) For purposes of this opinion

only, we will assume the subpoenaed BPD records qualify as “private” records

and information within the meaning of Government Code sections 11181 and

11183. (See 87 Ops.Cal.Atty.Gen 181, 186 (2004) 2004 WL 2971140 at p. 3

[“ ‘Private’ is broadly understood to refer to things concerning or belonging to

an individual rather than the government or the public [citation] and

‘confidential’ generally refers to matters private, personal, or secret in nature

that are not broadly disclosed or widely known [citation].”]) (Italics added.)

inference is that the “[n]otwithstanding . . . any other law” clause ensures, at

the very least, that any other law having a similar dramatic impact on the

public accessibility of officer-related records may not be given effect.

We are unpersuaded by the Department’s suggestion that the

superseding effect of the notwithstanding clause is properly limited to section

832.7(a) and Government Code section 7923.600. As the California Supreme

Court explains, “[w]e deny a phrase like ‘any other provision of law’ its proper

impact if we expect a . . . statute . . . to further enumerate every provision . . .

to which it is relevant.” (People v. Romanowski (2017) 2 Cal.5th 903, 908–909

[construing Pen. Code, § 490.2, subd. (a)]; see Cross v. Superior Court (2017)

11 Cal.App.5th 305, 320–321.)

Here, it is readily apparent that the subpoena power conferred by

Government Code section 11181 is what makes it possible for the

Department to effectively exercise its authority to review alleged incidents of

excessive force and serious misconduct falling within the scope of section

832.7(b). Indeed, the Department acknowledges the subpoena power is

critical to its investigations of such incidents. Thus, like the investigatory

files exemption in Government Code section 7923.600, Government Code

section 11183’s disclosure prohibition, if applied to officer-related records, is

likely to shield most, if not all, such records obtained by the Department and

thereby render section 832.7(b)’s application a nullity in that regard. (See

State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029,

1042–1044 (Garamendi) [where statute mandated that “ ‘[a]ll information

provided” to the Insurance Commissioner “shall be available for public

inspection,” court would not give effect to the trade secrets privilege codified

in Evidence Code section 1060, which would “nullify” the broad statutory

mandate].) We therefore conclude that, in the context of the Department’s

independent review or investigation of conduct falling under section 832.7(b),

categorical application of Government Code section 11183’s disclosure

prohibition stands in direct conflict with section 832.7(b)’s express

contemplation that officer-related records “shall not be confidential and shall

be made available for public inspection pursuant to the [CPRA].”

Our conclusion that the two statutes are in conflict finds analogous

support in State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th

940 (SDPH). There, a news organization filed a CPRA request for copies of

all patient care violation citations that the Department of Public Health

(DPH) issued to seven state-owned long-term health care facilities pursuant

to the Long-Term Care Act. (SDPH, at pp. 946–947.) DPH, relying on the

Lanterman-Petris-Short Act and the Lanterman Developmental Disabilities

Services Act (collectively, the Lanterman Act), responded by producing

heavily redacted citations containing “scant information about the violations

giving rise to each citation.” (SDPH, at p. 947.) The news organization filed

a petition for a writ of mandate seeking an order that DPH disclose the

redacted material. (Id. at p. 948.)

As relevant here, the Supreme Court found it “evident” that the Long-

Term Care Act and the Lanterman Act conflict. (SDPH, supra, 60 Cal.4th at

p. 958.) As the court observed, the Long-Term Care Act requires that a

patient care violation citation include past and current medical and mental

health information of a mistreated patient, and a description of the risk the

violation presents to the patient’s mental and physical condition (SDPH, at

p. 951); the act emphasizes that patient names must be redacted “but does

not mention any other redaction” (id. at p. 952). Under the Long-Term Care

Act, a patient care violation citation is “ ‘a public record’ ” and “ ‘open to

public inspection pursuant to [provisions of the CPRA]’ ” (SDPH, at p. 952),

and citations must also be posted as statutorily specified upon pain of a

$1,000 civil penalty (id. at p. 958). Meanwhile, the Lanterman Act generally

regards as confidential any information obtained in the course of providing

enumerated services to individuals with mental and developmental

conditions and authorizes minimum civil liability of $10,000 for a knowing

disclosure violation and minimum liability of $1,000 for a negligent

disclosure. (SDPH, at p. 958.) Thus, the express terms of the Lanterman Act

“would render most of the information included in a DPH citation

confidential and therefore not subject to disclosure.” (SDPH, at pp. 957–958.)

The Long-Term Care Act did not include language expressly stating its

disclosure requirements apply notwithstanding any other law. Nonetheless,

the Supreme Court concluded “the specificity with which the Long-Term Care

Act discusses DPH citations and the fact that [individuals with

developmental and mental health conditions] are among the primary groups

the Legislature sought to protect via the Long-Term Care Act” evinces the

Legislature’s intent that, regardless of the Lanterman Act’s broad

confidentiality language, DPH citations “be made public subject only to any

redaction required by the Long-Term Care Act.” (SDPH, supra, 60 Cal.4th at

p. 961.) In sum, the Supreme Court held “the Long-Term Care Act’s

provisions govern the scope of information contained in DPH citations that

must be released to the public” in response to a CPRA request. (Id. at

p. 964.)

Similar to the situation in SDPH, the specificity with which section

832.7(b) addresses the parameters for disclosure and redaction of responsive

officer-related records culled from personnel records and investigatory files,

evinces the Legislature’s intent that, regardless of Government Code section

11183, the BPD records obtained as part of the Department’s investigation of

conduct falling under section 832.7(b) are nonconfidential and subject to

public inspection. To hold otherwise would disregard the straightforward

import of section 832.7(b)(1)’s notwithstanding clause directing that such

records be made publicly available despite state law exemptions that would

directly prevent or obstruct their disclosure. (See Klajic v. Castaic Lake

Water Agency (2004) 121 Cal.App.4th 5, 13.)

According to the Department, the circumstance that section 832.7(b)(1)

cites Government Code section 7923.600 but no other CPRA exemption gives

rise to the inference that section 832.7(b) leaves intact the stipulation in

Government Code section 7927.705 that the CPRA does not require

disclosure of records where disclosure is prohibited or exempted pursuant to

state law. Though this statement appears correct as far as it goes, we reject

the Department’s further suggestion that section 832.7(b) thereby intends to

give effect to all exemptions generally incorporated into the CPRA by

Government Code section 7927.705.

The language of section 832.7(b)(1) declares that officer-related records

“shall not be confidential and shall be made available for public inspection

pursuant to the [CPRA].” (Italics added.) As we indicated in Becerra, the

inclusion of the italicized language signals the Legislature’s intent that the

CPRA remains essential to section 832.7(b)’s operation. (Becerra, supra, 44

Cal.App.4th at p. 925.) This point is reinforced by Becerra’s recognition that

the notwithstanding clause “cannot reasonably be read to do away with the

entire CPRA”; rather, “ ‘only those provisions of the law that conflict with’

section 832.7(b)—‘not . . . every provision of law’—are inapplicable.” (Ibid.)

Consequently, like the catchall exemption addressed in Becerra, other

statutory disclosure exemptions that do not pose a direct conflict with section

832.7(b)—whether mentioned by name within the CPRA or incorporated into

the CPRA by Government Code section 7927.705—may continue to operate.

Again, whether a statutory exemption directly conflicts with section 832.7(b)

does not turn on the mere circumstance that application of the exemption

would result in the withholding of responsive records. Here, we may

reasonably infer from the entire text of section 832.7(b)(1) that its call for

disclosure is intended to supersede, at minimum, those exemptions like

section 832.7(a) and Government Code section 7923.600 that would “nullify”

its application to a wide or significant swath of officer-related records.

(Garamendi, supra, 32 Cal.4th at p. 1044.) As explained, the disclosure

prohibition in Government Code section 11183 falls squarely into this

category.

Though we do not view the statutory language as ambiguous, we may

look to the legislative history to confirm our construction on this point.

(Hughes v. Pair (2009) 46 Cal.4th 1035, 1046.) As Becerra observed, one

legislative analysis described the proposed enactment of section 832.7(b) as

“ ‘open[ing] police officer personnel records in very limited cases, allowing

local law enforcement agencies and law enforcement oversight agencies to

provide greater transparency around only the most serious police

complaints.’ ” (Becerra, supra, 44 Cal.App.4th at p. 920.) “Underscoring this

desire for greater access and transparency, including access to records

maintained by law enforcement oversight agencies, the Legislative Counsel’s

Digest . . . explained: ‘This bill would require, notwithstanding any other

law, . . . records relating to specified incidents, complaints, and investigations

involving peace officers and custodial officers to be made available for public

inspection pursuant to the California Public Records Act.’ ” (Becerra, at

p. 921.) There appears no dispute that the Department is a law enforcement

oversight agency or that it uses its subpoena power to obtain necessary

officer-related records to conduct its independent review and investigations

into complaints against officers and agencies. (See id. at pp. 911–912, fn. 2.)

Our construction also aligns with the legislative findings accompanying

section 832.7(b)’s enactment, which emphasize the critical importance of its

disclosure mandate: “ ‘The public has a right to know all about serious police

misconduct, as well as about officer-involved shootings and other serious uses

of force. Concealing crucial public safety matters such as officer violations of

civilians’ rights, or inquiries into deadly use of force incidents, undercuts the

public’s faith in the legitimacy of law enforcement, makes it harder for tens of

thousands of hardworking peace officers to do their jobs, and endangers

public safety.’ (Stats. 2018, ch. 988, § 1(b).)” (Becerra, supra, 44 Cal.App.5th

at p. 921.) These public policy concerns are more fully addressed by a

construction that, consistent with the statutory language, gives primacy to

disclosure when an oversight agency such as the Department obtains and

relies on officer-related records to independently review or investigate

allegations of harmful or unlawful officer conduct.

Additionally, under our construction, the same officer-related records

must be made available for public inspection whether they are in the

possession of the Department or in the hands of a local agency. This is

consistent with case law concluding it “unlikely the Legislature intend[s] to

render documents confidential based on their location, rather than their

content.” (Commission on Peace Officer Standards & Training v. Superior

Court (2007) 42 Cal.4th 278, 291; see Becerra, supra, 44 Cal.App.5th at

p. 923; San Diego County Employees Retirement Assn. v. Superior Court

(2011) 196 Cal.App.4th 1228, 1240 [finding “no logic” in exempting a roll of

public employee information from disclosure “depending on what entity

maintains it”].)

On this score, we note the trial court took no exception to the principle

that a document’s status as public or confidential does not turn on its

location. But the court emphasized that Government Code section 11183

protects documents “as a function of the way they were obtained,” not their

location. The Department agrees, contending the confidentiality restrictions

accompanying the grant of subpoena power serve to facilitate and protect the

integrity of the Department’s investigations, in part because witness

cooperation might be more easily secured if witnesses know of these

confidentiality rules. (See Tom v. Schoolhouse Coins, Inc. (1987) 191

Cal.App.3d 827, 830.)

But section 832.7(b) features numerous provisions requiring redaction

of disclosed records for various protective purposes, including the integrity of

pending investigations.5 Though claiming such redactions do not apply until

after a determination that a responsive record is not otherwise exempt (e.g.,

pursuant to the CPRA’s catchall exemption), the Department offers no

meaningful explanation why its ability to investigate and provide effective

5 These include redactions to remove personal data and to preserve the

anonymity of complainants and witnesses, and redactions where there is a

specific reason to believe that disclosure would pose a significant danger to

the physical safety of the officer or another person. (§ 832.7(b)(6)(A), (B), (D).)

Redaction is also required to “protect confidential medical, financial, or other

information of which disclosure is specifically prohibited by federal law or

would cause an unwarranted invasion of personal privacy that clearly

outweighs the strong public interest in records about possible misconduct and

use of force.” (§ 832.7(b)(6)(C).) Redaction is also permitted when, in a

particular case, “the public interest served by not disclosing the information

clearly outweighs the public interest served by disclosure of the information.”

(§ 832.7(b)(7).) Additionally, release may be delayed of records involving

misconduct or use of force for proscribed periods where a criminal

investigation or proceeding is active and other criteria are satisfied.

(§ 832.7(b)(8).)

oversight would be hampered in spite of these redaction provisions. Indeed,

the legislative history indicates law enforcement agencies made similar

arguments in opposing the enactment of section 832.7(b) (e.g., Assem. Com.

on Public Safety, Rep. on Sen. Bill No. 1421 (2017–2018 Reg. Sess.) as

amended June 19, 2018, p. 9), and the inclusion of the statutorily enumerated

redactions reflects the Legislature’s considered response to these arguments.

The Department also appears to contend that Senate Bill 16, which

amended section 832.7 in 2021, somehow confirms the authority of local and

state agencies to withhold officer-related records based on any and all federal

and state law disclosure exemptions. We cannot agree.

Senate Bill 16 amended section 832.7(b) to increase transparency. The

legislation enlarged the scope of the required disclosure to include records

relating to additional types of sustained findings and records of officers who

resign before an investigation concludes. (Stats. 2021, ch. 402, § 3; e.g.,

§ 832.7(b)(1)(A)(iii), (iv) (unreasonable or excessive force),§ 832.7(b)(1)(D)

(prejudice or discrimination against protected classes); § 832.7(b)(1)(E)

(unlawful arrest or search); § 832.7(b)(3) (resigning officers).) Senate Bill 16

also clarified that, for purposes of section 832.7(b), the lawyer-client privilege

does not prohibit the disclosure of factual information provided by the public

entity to its attorney or factual information discovered in an investigation,

even when the investigation is conducted by the attorney.

(§ 832.7(b)(12)(A)(i).) As part of that clarification, Senate Bill 16 included

language stating the newly added lawyer-client privilege provision “does not

prohibit the public entity from asserting that a record or information within

the record is exempted or prohibited from disclosure pursuant to any other

federal or state law.” (§ 832.7(b)(12)(B), italics added.)

Seizing upon the language italicized above, the Department appears to

suggest section 832.7(b)(12)(B) broadly allows it to withhold officer-related

records under any other law, such as Government Code section 11183 and the

other statutory exemptions invoked here. We conclude otherwise. By its

terms, the provision explicitly limits its application to “[t]his paragraph”—

i.e., paragraph (b)(12)—which pertains solely to disclosure obligations when

the lawyer-client privilege is invoked.

The Department also reiterates that the confidentiality protections

afforded by Government Code section 11183 serve to encourage cooperation

by witnesses and targets of investigations and thereby enable the

Department and other agencies to engage in more effective oversight.

Contending these are important public policy interests that are not directly

contrary to the interests promoted by section 832.7(b), the Department

argues they should be preserved. We have, however, already concluded that

Government Code section 11183 poses a direct conflict to the extent it would

allow the Department to shield a broad swath of officer-related records that

are subject to public inspection pursuant section 832.7(b), and that therefore

effect must be given to section 832.7(b)(1)’s notwithstanding clause. If the

Department believes the confidentiality protections in Government Code

section 11183 deserve precedence over section 832.7(b)’s express

contemplation that records within its scope are not confidential and shall be

disclosed, it may take its cause to the Legislature.

In its traverse to the order to show cause, the Department presently

acknowledges it must produce officer-related records obtained when it

exercises its oversight authority to review a specific incident of officer

misconduct covered by section 832.7(b). But noting BPD was subject to an

independent pattern-or-practice investigation, the Department now contends

for the first time in this matter that section 832.7(b) is inapplicable to records

obtained during a pattern-or-practice investigation, because such

investigations are aimed at systemic violations and do not target individual

incidents for review. Though section 832.7(b) neither includes nor excludes

explicit reference to pattern-or-practice investigations, the Department draws

its conclusion from the statutory language stating that records “shall be

made available for public inspection” where they “relate to the report,

investigation, or findings” of a specific “incident” of harmful or wrongful

conduct listed in section 832.7(b). (E.g., §832.7(b)(1)(A)(i), (b)(1)(A)(ii),

(b)(1)(B)(i), (b)(1)(C), (b)(1)(D), (b)(1)(E).) In other words, the Department

seems to read these statutory provisions as excluding records from the scope

of section 832.7(b) when they are obtained during a review or investigation of

multiple incidents of misconduct. We are not convinced.

As petitioners point out, the Penal Code makes clear that terms

referencing “the singular number includes the plural,” and vice versa. And

that is the most sensible way to read and understand section 832.7(b), whose

aim is to provide meaningful transparency. By contrast, the Department’s

textual construction would categorically shield officer-related records

whenever a local or oversight agency conducts a single investigation

involving separate incidents of misconduct committed by one officer, or a

single investigation of misconduct committed by multiple officers, no matter

how related the incidents.

In closing, we note petitioners acknowledge that section 832.7(b) does

not categorically require disclosure of all of the Department’s pattern-or-

practice files. Petitioners indicate that documents created by the

Department as part of a pattern-or-practice investigation may fall outside the

statute if, for example, they are “too attenuated” from any particular

incident. We have no occasion to address such points. There is no indication

the Department created any of the disputed BPD records as part of its

investigation, and in any event, the precise nature of the particular records

remains unclear. Petitioners also concede that, on remand, the Department

is free to make a showing that individual BPD records are appropriately

“withheld or redacted, either because they do not fall within the scope of

[section 832.7(b)] or because they, or parts of them are exempt from

disclosure for reasons other than [Government Code section 11183].”

C. Penal Code Sections 6126 and 6126.3

The trial court conducted an in camera review and described the next

withheld record as a 160-page report of the Office of the Inspector General

(hereafter OIG) that includes an incident summary, information and

communications from the person or persons seeking the Inspector General’s

review, a summary of facts, progress of the investigation, materials from the

OIG’s intake review committee, a timeline of events, and other

communications among the OIG staff. This report apparently relates to an

incident in which prison guards inflicted great bodily injury upon a prisoner,

and the report appears to include internal records of the OIG. The trial court

concluded the Department properly withheld this report pursuant to section

6126.3, subdivision (c)(2), (3), and (4). Petitioners contend that this ruling

was in error and that section 832.7(b) has superseded the confidentiality

provisions in sections 6126, subdivision (c) (hereafter section 6126(c)) and

6126.3, subdivision (c) (hereafter section 6126.3(c)).

By way of background, the OIG was created as an independent entity

and is not “a subdivision of any other governmental entity.” (§ 6125.) Section

6126 charges the Inspector General with responsibility “for contemporaneous

oversight of internal affairs investigations, and the disciplinary process of the

Department of Corrections and Rehabilitation” (§ 6126, subd. (a)) and

authorizes the OIG to conduct a review when “requested by the Governor, the

Senate Committee on Rules, or the Speaker of the Assembly,” or “on the

Inspector General’s own accord” (§ 6126, subd. (b)). Upon completion of a

review, the OIG is required under section 6126(c)(1) to “prepare a complete

written report, which may be held as confidential and disclosed in confidence,

along with all underlying materials the Inspector General deems appropriate,

to the Department of Corrections and Rehabilitation and to the requesting

entity in subdivision (b), where applicable.” The OIG must also prepare a

public report but may redact certain information for the safety and security of

OIG staff, inmates, and others, or where the information “might hinder

prosecution related to the review.” (§ 6126(c)(2).)

For purposes of this case, we assume the Department may properly

invoke statutory provisions that appear reserved to the OIG. But the

analysis here necessarily differs from the analysis in part B, ante. That is

because section 6126.3 features a provision expressly stating that, “[e]xcept as

provided in subdivision (c),” OIG papers and records “are public records

subject to [the CPRA].” (§ 6126.3, subd. (b), italics added.) In turn, section

6126.3(c)(1)–(5) identifies OIG papers and records that “are not public records

subject to [the CPRA].” (§ 6126.3(c), italics added.) Here, the trial court

determined, after an in camera review, that the OIG report at issue was

properly withheld because it appeared “to fall within the confines of” section

6126.3(c)(2) [reports and documents pertaining to uncompleted reviews],

(c)(3) [communications pertaining to internal OIG discussions], and (c)(4)

[identifying information and personal papers from requesting persons].

As indicated in part B, ante, the salient issue is whether, in the context

of an OIG investigation of custodial officers, the terms of section 6126.3(c)(2)–

(4) pose a direct conflict with section 832.7(b)’s decree that the officer-related

records within its scope shall be nonconfidential and made available for

public inspection. Section 832.7(b), however, speaks to the universe of public

records pertaining to peace and custodial officers and officer investigations

that must be made available for public inspection pursuant to the CPRA.

The OIG papers and documents listed in section 6126.3(c)(2)–(4) exist outside

that universe because the Legislature has proclaimed they “are not public

records subject to the [CPRA].” (§ 6126.3(c).) Put another way, these

particular papers and documents are not records that, in the words of section

832.7(b)(1), could “be made available for public inspection pursuant to the

[CPRA].” (Italics added.) We are not aware of any authority mandating

disclosure of a record the Legislature has expressly classified as not a public

record subject to the CPRA. Because the OIG report at issue falls outside the

reach of the CPRA, even though it appears to concern a custodial officer

investigation of the type contemplated in section 832.7(b), the trial court did

not err in declining to order its disclosure under section 832.7(b).

At oral argument, petitioners identified Sierra Club v. Superior Court

(2013) 57 Cal.4th 157 (Sierra Club) as authority for the proposition that

disclosure of a public agency record may be mandated notwithstanding a

statute that expressly excludes it from the CPRA definition of a public record.

Petitioners’ read of the case, however, is off the mark.

In Sierra Club, a CPRA statute specifically excluded “ ‘[c]omputer

software’ from the definition of a public record” and defined “ ‘computer

software’ ” as including “computer mapping systems.” (Sierra Club, supra, 57

Cal.4th at p. 165 [addressing former Gov. Code, § 6254.9].) The question was

“whether the term “ ‘computer software,’ ” as used in the statute,

encompassed a so-called “GIS-formatted OC Landbase.” (Ibid.) If it did,

Sierra Club explained, “then the GIS-formatted OC Landbase is not a public

record subject to disclosure; if not, then it is a public record subject to

disclosure unless otherwise exempt under the [CPRA].” (Ibid.)6 Sierra Club

ultimately concluded that “the better view, based on statutory text and

context, is that GIS-formatted databases are not covered by the statutory

exclusion of computer software, including computer mapping systems, from

the definition of a public record.” (Id. at p. 171.) Though Sierra Club held

the database at issue was potentially disclosable pursuant to the CPRA

because it did not fall within the computer software exclusion, the clear

implication of the decision is that statutes excluding documents from the

definition of a public record are to be enforced.

Petitioners also argue that article I, section 3, subdivision (b) of the

California Constitution requires disclosure of the OIG report. We cannot

agree. Though the constitutional provision generally favors disclosure of

writings by public officials and agencies, petitioners overlook the provision’s

express statement that it “does not repeal or nullify, expressly or by

implication, any . . . statutory exception to the right of access to public

records . . . that is in effect on the effective date of this subdivision, including,

but not limited to, any statute protecting the confidentiality of law

enforcement and prosecution records.” (Cal. Const., art. I, § 3, subd. (b)(5).)

There is no question that section 6126.3(c) was in effect before the

6 In Sierra Club, the question of whether the GIS-formatted OC

Landbase was a public record was relevant in order to determine the cost of

access to the database. If the database was a public record, then the

petitioner could obtain it for a fee covering only the direct cost of duplication.

(Sierra Club, supra, 57 Cal.4th at p. 163.) But if the database was not a

public record under the statutory exclusion, then the public agency had the

option to license the database according to the terms of a licensing policy.

(Ibid.)

constitutional provision became effective. (Compare Stats. 2013, Res. Ch. 123

(S.C.A. 3), § 1 (Prop. 42, approved June 3, 2014, eff. June 4, 2014 with

Stats. 2004, ch. 734, § 1 (Sen. Bill No. 1352).) In sum, the plain terms of this

constitutional provision do not override the public records exception

embodied in section 6126.3(c)(2)–(4).

Petitioners contend the conflict they perceive between section 6126.3(c)

and section 832.7(b) is functionally identical to the direct conflict posed by

Government Code section 11183. But section 6126.3(c) is fundamentally

different from Government Code section 11183 because it reflects the express

will of the Legislature that certain specified documents are not public records

subject to the CPRA. Not only have petitioners failed to provide any

authority requiring disclosure of a record that the Legislature has expressly

excluded from the definition of a public record, but the one case it does

identify strongly suggests a statute that excludes a document from the

definition of a public record should be judicially respected and enforced. (See

Sierra Club, supra, 57 Cal.4th at p. 165.)

Though public accessibility to the OIG documents listed in section

6126.3(c)(2)–(4) might further the purposes underlying section 832.7(b), we

may not override the explicit intent of the Legislature and the more limited

disclosure scheme it crafted specifically for OIG documents. Petitioners, of

course, remain free to seek legislative reversal of the public record exception

reflected in section 6126.3(c)(2)–(4).

In sum, the OIG report at issue was properly withheld to the extent it

fell “within the confines of” section 6126.3(c)(2)–(4), as stated by the trial

court. Our conclusion, however, is not intended to preclude the trial court, on

remand, from revisiting whether portions of the OIG report fall outside the

scope of section 6126.3(c)(2)–(4).

D. Unemployment Insurance Code Section 1094

Finally, the record in this matter contains the Department’s

“Withholding Log,” which lists a number of documents being withheld on the

grounds they reflect confidential unemployment information or confidential

attorney-client communications and/or work product concerning confidential

unemployment information.

In refusing public access to these documents, the Department relied on

Unemployment Insurance Code section 1094, subdivision (a), which provides:

“Except as otherwise specifically provided in this code, the information

obtained in the administration of this code is confidential, not open to the

public, and shall be for the exclusive use and information of the director in

discharge of his or her duties.” (See Unemp. Ins. Code, § 134 [defining

director as the “Director of Employment Development”].) This statute also

provides that “[a]ny person who knowingly accesses, uses, or discloses any

confidential information without authorization is in violation of this section

and is guilty of a misdemeanor.” (Unemp. Ins. Code, § 1094, subd. (f).)

Here, there is no indication the Department was acting in an oversight

or investigative capacity with respect to the records at issue. Instead, the

record indicates the Department was serving as counsel for a public entity in

one or more appeals of an unemployment benefits decision. Notably,

petitioners do not address the significance, if any, of the lawyer-client

privilege in resolving the issue of public accessibility to the records at issue.

Moreover, they offer no meaningful analysis of whether Unemployment

Insurance Code section 1094 presents a direct conflict with section 832.7.

Because plaintiffs have not met their burden to affirmatively show error, we

will not disturb the trial court’s ruling on this point. (See Blizzard Energy,

Inc. v. Schaefers (2021) 71 Cal.App.5th 832, 856.)

DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to

vacate its judgment to the extent it denies petitioners’ motion for judgment

based on Government Code section 11183. The matter is remanded to

respondent court for further proceedings consistent with this opinion. In all

other respects, the petition for writ of mandate is denied.

The parties shall bear their own costs in this writ proceeding. (Cal.

Rules of Court, rule 8.493(a)(1)(B).)

_________________________

Fujisaki, Acting P.J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Rodríguez, J.

Trial Court: City & County San Francisco Superior Court

Trial Judge: Hon. Curtis E.A. Karnow

Counsel: Law Office of Michael T. Risher, Michael T. Risher; Davis,

Wright, Tremaine LLP, Thomas R. Burke, and Sarah E.

Burns; California First Amendment Coalition, David

Edward Snyder; First Amendment Coalition, John

David Loy for Plaintiff and Petitioner

Rob Bonta, Attorney General of California, Thomas S.

Patterson, Senior Assistant Attorney General, Mark R.

Beckington, Supervising Deputy Attorney General, John

D. Echeverria, Deputy Attorney General, and Natasha

Saggar Sheth, Deputy Attorney General for Respondent

and Real Party In Interest

First Amendment Coalition v. Sup. Ct. Cnty. & City S.F. (A165888)

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