Motion,Ex Parte: FIRST AMENDMENT COALITION VS. XAVIER BECERRA ET AL

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XAVIER BECERRA
Attorney General of California
STEPAN A. HAYTAYAN
Supervising Deputy Attorney General
AMIE L, MEDLEY
Deputy Attorney General
JENNIFER E, ROSENBERG
Deputy Attorney General
State Bar No. 275496
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6617
Fax: (213) 897-5775
E-mail: jennifer.rosenberg@doj.ca.gov
Attorneys for Defendants Xavier Becerra, in his

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

05/06/2019

Clerk of the Court

BY: EDNALEEN ALEGRE
Deputy Clerk

official capacity as California Attorney General, and

the California Department of Justice

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

FIRST AMENDMENT COALITION;
KQED inc,

Plaintiffs,

XAVIER BECERRA, Attorney General of
the State of California; DEPARTMENT OF
JUSTICE,

Defendants.

Case No. CPF-19-516545

OPPOSITION OF DEFENDANTS
XAVIER BECERRA AND
DEPARTMENT OF JUSTICE TO
MOTION OF PLAINTIFFS FIRST
AMENDMENT COALITION AND
KQED, INC. FOR PEREMPTORY WRIT
OF MANDATE

Date: May 17, 2019

Time: 9:30 a.m.

Dept: 302

Judge: Hon. Ethan P. Schulman

Action Filed: February 14, 2019

{Declaration of Michael L. Newman In Support
of Opposition to Motion for Peremptory Writ
filed concurrently]

(Exempt from Filing Fees Pursuant to
Government Code § 6103)

I

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)eC wr DH RB Bw YN

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TABLE OF CONTENTS

L
IL. Public Records Act Requests to the Department Pursuant to SB 1421
ARGUMENT
L The Department Is Not Required To Release Records Regarding Officers

Of Other AQencies 0... cesssesssessseessseneessecssesssesntecssecessecsecssessecsansescseseseesseeseasecssess 8
A. SB 1421 Does Not Impose a Duty on the Attorney General to
Produce Records of Other Agencies’ Employees ........ssssseessseessseeeveesneeees 8

1. The Department Is Not the Entity that “Maintains”
Personnel or Other Records Maintained by Other Agencies
Unnder Section 832.5 ...ccseccsesssecssssescnuccerssstsssccneeseesnecsnecsesseeassenvers 9

2. The General Provisions of the CPRA Do Not Override the
Specifics of Penal Code section 832.7

3. Requiring Defendants to Produce Other Agencies’ Records
Would Be Burdensome and Duplicative....

B. The Attorney General May Decline to Disclose Other Agencies’
Records Where the Balance of Interests Tips Clearly Against

Disclosure.
1. Government Code section 6255 Still Applies After SB
1421’s Amendment of Penal Code section 832.7 .....eceseeneees 14

2. The Burden on the Department and Duplication of Efforts
by Other Agencies Weigh Against Requiring Disclosure by

the Department
Il. Disclosure of Pre-2019 Records Implicates Important Concerns .......cesesseseeeeees 17
A. Defendants Were Justified in Withholding Pre-2019 Records Until
a Court Determines that They Must Be Disclosed...........essssecssececesseesens 17

B. Disclosure of Pre-2019 Records Regarding the Department’s Peace
Officer Employees Implicates Additional Considerations

CONCLUSION

2

Opposition. of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)TABLE OF AUTHORITIES
Page
CASES
Alameida v. State Pers. Bd.
(2004) 120 Cal. App.4tl 46 o..ccesccsccsseecssesssserssvescssneecsussssnssssssscansessseneeesnnsesseesnnessseesseecsessesssavense 19

Am. Civil Liberties Union Found. y. Deukmejian
(1982) 32 Cal.3d 440 ........

Am, Civil Liberties Union Found. v, Super. Ct.
(2017) 3 Cal.Sth 1032 secs

Arias v. Super. Ct.
(2004) 46 Cal.4th 969

Black Panther Party v. Kehoe
(1974) 42 Cal. App.3d 645....cccssessssesssssesssscsssssssesssrsssssssessisecssasessuuesansuesssiesseesssnesseessssneseavennsese 18

Bowers v. Dep’t of Employment
(1960) 183 Cal. App.2d 686.....cccccccsesssesssssseessssesssecssssssscsusensecsuuesnmessnecnssssseesareaseessenssessnvenss 17

Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106 wo. cesccssesssecsssseesssecssnecssssssssecsnsecsusecssnssssanessnnscseaseesessseecsseessssuseevsessess 12

Cal. First Amend. Coal. v. Super. Ct.
(1998) 67 Cal. App4th 159 ...cscsessssesssssessssecsssessssessssecssssessssesssussssusesssieesssietsnessesssesessssaeesvenssnes 16

City of San Jose v. Super. Ct.
(1993) 5 Cal.4th 47

City of San Jose v. Super. Ct.
(1999) 74 Cal. App.Ath 1008 ....escsscssessssessssesssseesssessssessssssssssecssnssunscsssseecsetesseesssnsssneesssseeesssessves 17

City of San Jose v. Super. Ct.
(2017) 2 Cal.5th 608 ..

Com. on Peace Officer Standards & Training v. Super. Ct. _
(2007) 42 Cal. 4th 278 ooccccsssessesssosesseesssstsssetssnssnsstsssoessstssstsssissseuassssnsessusesetved 6, 8, 12

Filarsky v. Super. Ct.
(2002) 28 Cal.4th 419 ...ccesssessssessssesnseesssecssseesssesssssesssseessnsesssesevsssessessanssavessaneesneessanessaeesereess 20

Klajic v. Castaic Lake Water Agency
(2004) 121 Cal.App.4th 5

Long Beach Police Officers Assn. v, City of Long Beach
(2014) 59 Cal. Ath 59 oe cesssessssessssesssecsssscssesssssesssnesssseessneesusessuseessnesssusssvesssvecsnecsssneessseessseess 16

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)YN

a a

TABLE OF AUTHORITIES
(continued)
Page

Los Angeles Cty. Bd. of Supervisors v. Super. Ct.

(2016) 2 Cal. 5th 282 visesccsecssesssesssssesesseeessseesssseesasessnsecssveessnsesssnseesnvecssssessaesneccsnnseeseccaseesuuassise 14
People v. MOOC

(2001) 26 Cal.4th 1216.
Sierra Club v. Super. Ct.

(2013) 57 Cal. 4th 157 v.sccecscscssessessescnessescsvesssesssessesevssncssucauscssnsessvessessseeeueensesseensessuessssaeeaneeaseeeee 8
Williams v. Super. Ct.

(1993) 5 Cal 4th 337 ..sscscsssssssesssvsseessesssseesssvecssasssseenssersssssssesessssseessseecssavessvecsuressunssenecenecsssnsenssed 6
STATUTES
Evidence Code

OTHER AUTHORITIES

Sen. Bill No. 1421 (2017-2018 Reg. Sess.) ...sc.ccecssesesseeseesssessessssessneessessee

Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No.
1421 (2017-2018 Reg. Sess.), May 29, 2018... .cssscssessessessnneasstecsessnsssssssescetssaeesessnesatesnessess 13

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Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)INTRODUCTION
The Legislature enacted Senate Bill 1421 to achieve the important goal of increasing

transparency relating to peace officer misconduct, officer-involved shootings, and serious uses of
force, (Sen. Bill No. 1421 (2017-2018 Reg. Sess.), § 1.) The Attorney General and the
Department of Justice (collectively “Defendants”) are committed to building public trust between
the people of California and law enforcement agencies by embracing transparency in policing,
and thus they take very seriously compliance with their new duties under SB 1421, as enacted in
amended Penal Code section 832.7 (amended by Stats. 2018, ch. 988, § 2).

Defendants have, in light of the privacy concerns raised by peace officer organizations in
litigation across the state, declined to produce records relating to conduct that occurred before
2019. However, Defendants have no objection to producing such documents relating to the
Department’s own employee peace officers, should this Court find that pre-2019 records are
subject to disclosure under SB 1421. Defendants also have not produced records obtained from
other law enforcement agencies regarding those agencies’ employees. SB 1421 does not require
them to do so; instead, SB 1421 provides that the specific records listed in the statute will be
disclosed by the agency that employs the peace officer whose records are at issue. Any other
conclusion would result in duplication of efforts by local law enforcement agencies and a risk of
inappropriately disclosing information that could affect the local agencies’ pending investigations
or reveal the identities of witnesses that should remain protected,

In the event that the Court rules that Defendants must disclose pre-2019 records relating to
the Department’s employees, Defendants ask that the Court provide an opportunity for the parties
to resolve additional issues that have arisen in the Department’s search for potentially responsive
records, such as the proper interpretation of the phrase “sustained finding,”

BACKGROUND

I. AMENDED PENAL CODE SECTION 832.7 AND RECORD DISCLOSURE LAWS
In enacting the California Public Records Act (CPRA) in 1968, the Legislature declared

that “access to information concerning the conduct of the people’s business is a fundamental and

necessary right of every person in this state.” (Gov. Code, § 6250.) To promote this fundamental
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Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)oS Oo me ND HW BB Ww NY

right, the CPRA provides that “every person has a right to inspect any public record, except as
hereafter provided.” (Gov. Code, § 6253, subd. (a).) “In other words, all public records are
subject to disclosure unless the Legislature has expressly provided to the contrary.” (Williams v.
Super. Ct. (1993) 5 Cal.4th 337, 346.) “Mindful of the right of individuals to privacy,” (Gov.
Code, § 6250), as well as concerns for “safety, and efficient governmental operation” (Am. Civil
Liberties Union Found. v. Super. Ct. (2017) 3 Cal.5th 1032, 1040 (ACLU)), the Legislature
provided “numerous exceptions” to its broad policy of public disclosure (Com. on Peace Officer
Standards & Training v. Super. Ct. (2007) 42 Cal.4th 278, 288 (CPOST), citing Gov. Code, §§
6253, subds, (a) & (b), 6254).

In 1978, the Legislature expanded the exceptions to the CPRA’s broad disclosure mandates
by creating for peace officers a statutory right to privacy in their personnel records through Penal
Code section 832.7. Section 832.7 reached (and still reaches) only certain records—“personnel
records of peace officers and custodial officers and records maintained by any state or local
agency pursuant to Section 832.5, or information obtained from those records . .. .” (Pen. Code,
§ 832.7, subd. (a).) Section 832.5, in turn, addresses agencies’ duties and rights to investigate
citizen complaints against their own personnel, and imposes on “{e]ach department or agency in
this state that employs peace officers” or “custodial officers” a duty to retain records of
“{cjomplaints and any reports or findings relating to these complaints” for at least five years,
(Pen. Code, § 832.5, subds. (a) & (b).) Under section 832.5, subdivision (b), those records “may
be maintained either in the peace or custodial officer’s general personnel file or in a separate file
designated by the department or agency as provided by department or agency policy, in
accordance with all applicable requirements of law.”

Tn enacting SB 1421, the Legislature curtailed confidentiality for a limited subset of records
that are otherwise designated as confidential under Penal Code section 832.7. The Legislature
added subdivision (b) to operate as an exception to section 832.7, subdivision (a): “Except as
provided in subdivision (b), the personnel records of peace officers and custodial officers and
records maintained by any state or local agency pursuant to Section 832.5, or information

obtained from these records, are confidential... .”
6

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc, for Peremptory Writ of Mandate (CPF-19-516545)Penal Code section 832.7, subdivision (b) then lists the records that are exceptions to
section 832.7, subdivision (a)’s exception to the CPRA’s disclosure mandates. The first two
disclosable categories are records “relating to the report, investigation, or findings of” (a) an
“4ncident involving the discharge of a firearm at a person,” or (b) an “incident in which the use of

force by a peace officer or custodial officer against a person resulted in death, or in great bodily

injury.” (Pen. Code, § 832.7, subd. (b)(1)(A)(i) & (ii).) The other disclosable categories are (a)

records relating to “an incident in which a sustained finding was made by any law enforcement
agency or oversight agency that a peace officer or custodial officer engaged in sexual assault
involving a member of the public” (id. at subd. (b)(1)(B)(i)), and (b) records relating to “an
incident in which a sustained finding was made by any law enforcement agency or oversight
agency of dishonesty by a peace officer or custodial officer directly relating to the reporting,
investigation, or prosecution of a crime” (id. at subd. (b)(1)(C)).

II. PUBLIC RECORDS ACT REQUESTS TO THE DEPARTMENT PURSUANT TO SB 1421

The Attorney General’s office received the requests submitted by the two Plaintiffs in this
case on January 4, 2019, The First Amendment Coalition’s request sought all records responsive
to the first three categories listed in Penal Code section 832.7, subdivision (b)(1) for 2016, 2017,
and 2018, (FAP, Ex. A at 1.) The California News Coalition’s request, headed by Plaintiff
KQED, sought records in the last three categories listed in Penal Code section 832.7,
subdivision (b)(1) from January 1, 2014 to December 31, 2018. (FAP, Ex. B at 1-3.) Both
requests sought not only those records the Department maintains as an employing agency, but all
records in the Department’s possession that fall within the new statutory categories.

The Department’s response letters declined to disclose records and explained the bases for
that decision. (FAP, Exs. C & D.) First, the Department explained that it would only be required
to disclose records relating to peace officers employed by the Department. (Jbid.) Second, the
Department acknowledged the longstanding privacy rights of peace officers and noted that
litigation pending in several courts across the state centered on the question whether SB 1421

required the disclosure of records relating to incidents that occurred before January 1, 2019, with

7

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)the courts in those lawsuits adopting discordant views on that question.! (/bid.) Finally, the
Department stated that some records are exempt under Government Code section 6254,

subdivision (k), because they are subject to attorney client or another form of privilege. (Ibid.)

ARGUMENT

I, THE DEPARTMENT Is NOT REQUIRED TO RELEASE RECORDS REGARDING
OFFICERS OF OTHER AGENCIES

A. SB 1421 Does Not Impose a Duty on the Attorney General to Produce
Records of Other Agencies’ Employees

The court’s “fundamental task’” in interpreting a statute “‘is to determine the Legislature’s
intent so as to effectuate the law’s purpose.’” (Sierra Club v. Super. Ct. (2013) 57 Cal.4th 157,
165, citation omitted.) The court first looks to “‘the statutory language, giving it a plain and
commonsense meaning. We do not examine that language in isolation, but in the context of the
statutory framework as a whole in order to determine its scope and purpose and to harmonize the
various parts of the enactment.”” (Jd., citation omitted.) Moreover, where the statutory text

leaves any uncertainty, the court appropriately considers the practical “consequences that will

o>

flow from a particular interpretation,” according the Legislature a presumption that it “intends

reasonable results consistent with its apparent purpose.” (CPOST, supra, 42 Cal.4th at p. 291,
citations omitted.) The court’s task, therefore, “is to select the construction that comports most
closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the

statutes’ general purpose, and to avoid a construction that would lead to unreasonable,

' When the Department sent its response letters, several police officer associations had
filed petitions for writs of mandate and sought preliminary injunctions in various courts across the
state. A preliminary injunction was issued in Ventura County Sheriffs v. County of Ventura
(Ventura Cty, Super. Ct., Case No. 56-2019-00523492-CU-WM-VTA) on February 26, 2019, and
an alternative writ preventing disclosure of records under SB 1421 was issued in Fresno Deputy
Sheriffs Association v. County of Fresno (Fresno Cty. Super. Ct., Case No. 19CECG00659) on
February 18, 2019. Other courts denied preliminary injunctive relief, but stayed those rulings
pending appellate court review. (Assn. for Los Angeles Deputy Sheriffs v. Cty. of Los Angeles,
Los Angeles Cty. Super. Ct., Case. No, 19STCP00166; Walnut Creek Police Officers’ Assn. v.
City of Walnut Creek, Alameda Cty. Super. Ct., Case No. MSN19-0109.) Because the disclosure
of any such officer records would be irreversible, the Department decided to withhold the records
until the courts resolve the merits of the question whether records relating to pre-2019 incidents
must be disclosed. Since that time, the appeal in the Walnut Creek case was dismissed following
the First District Court of Appeal’s denial of a writ of supersedeas. (Walnut Creek Police
Officers’ Assn. v. City of Walnut Creek, Case No. A156477.) At the time of this filing, an appeal
remains pending in the Second District Court of Appeal in Association for Los Angeles Deputy
Sheriffs v. County of Los Angeles, Case No. B293936.

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)oO DY DHA BF WwW NH

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impractical, or arbitrary results.” (Jbid.) The amendments under SB 1421 represent a precise
rebalancing of disclosure and privacy, with both of these public interests retaining a place under
law. As discussed below, the plain language of the statute, read in context with the entire
statutory scheme, shows that only the employing agency is subject to the reporting duty. Under
amended Penal Code section 832.7, CPRA requesters freely may seek public records disclosable
under subdivision (b) from officers’ employing agencies, but the amendments do not require the
Department to disclose personnel and related records of other agencies’ employees that happen to

be in its possession.

1. The Department Is Not the Entity that “Maintains” Personnel or
Other Records Maintained by Other Agencies Under Section 832.5

Section 832.7’s own provisions evince the Legislature’s intent to require solely an
employing agency to disclose records relating to their own personnel under that section. Under
revised section 832.7, the personnel records of peace and custodial officers, as well as complaints
to law enforcement agencies and investigations and findings relating to those complaints, remain
confidential except as specifically stated in the statute. The statute says: “Except as provided in
subdivision (b), the personnel records of peace officers and custodial officers and records
maintained by any state or local agency pursuant to Section 832.5 .. . are confidential... .” -
(Pen. Code, § 832.7, subd. (a).) This provision limits the universe of records subject to section -
832.7 to: (a) “personnel records of peace officers and custodial officers,” and (b) “records
maintained pursuant to Penal Code section 832.5.” (Zbid.) Penal Code section 832.5, in turn,
refers to “complaints by members of the public against the personnel of these departments or
agencies” and “any reports or findings relating to these complaints.” (Pen. Code, § 832.5, subd.
(a)(1) & (2).) Section 832.5, subdivision (a) thus expressly defines who “maintains” the records
subject to disclosure undersection 832.7, subdivision (b); the officers’ employing agency. :

In specifying four categories of records now subject to disclosure, section 832.7,
subdivision (b)(1) merely creates exceptions to the confidentiality provision in section 832.7,
subdivision (a). The first words of subdivision (a) confirm this reading—‘Except as provided in

subdivision (b),” the records described in subdivision (a) are confidential. Subdivision (b)(1)
9

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-5 16545)rom enn ee tn

does not reach beyond the set of records described in subdivision (a).

The final sentence of section 832.7, subdivision (a) also confirms that the Legislature did
not intend to make the Attorney General subject to mandatory disclosure requirements regarding
investigations of other agencies’ officers. It states broadly that “[t]his section shall not apply to
investigations or proceedings concerning the conduct of peace officers or custodial officers, or an
agency or department that employs those officers, conducted by a grand jury, a district attorney’s
office, or the Attorney General’s office.” Through this provision, the Legislature underscored
that there is a distinction between records when held by the employing agency on the one hand,
and the same records when held by an investigating agency or entity that does not employ the
officer on the other. The latter simply does not “maintain” the record.

Drawing a distinction between disclosure duties relating to records maintained by an
employing agency and records in the possession of another agency is only logical. The
Department is not well positioned to produce records of other agencies in light of the matters an
agency must review before disclosure, Rather, the employing agency is in the best position to
evaluate whether disclosure is required and whether any statutory exemption—mandatory or
discretionary—applies. In many instances, the Department will have little or no knowledge of

issues relating to records, including whether the anonymity of a particular witness must be

- protected or how the disclosure of a record may affect the other agency’s pending investigations.

The exemptions from disclosure enumerated in amended section 832.7, as well as the
section’s permissive disclosure provisions, reflect the Legislature’s consideration of which
agency is best positioned to respond to requests for the information. The exemptions contemplate
that the employing agency will be tasked with redacting or withholding records in order to protect
an agency’s peace or custodial officers and their families from “articulable” risks to their safety
(Pen. Code, § 832.7, subd. (b)(5)(D)), preserve the anonymity of complainants and witnesses (éd.,
subd, (b)(5)(B), or protect against interference with ongoing criminal or administrative
investigations or enforcement proceedings (id., subd. (b)(7)). An employing agency, which has
better access to comprehensive personnel documents for its employees, will be best suited to

determining in the first instance whether any records “relat[e] to an incident in which a sustained
10

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)oD ew ny a

finding was made by any law enforcement agency or oversight agency” pursuant to subdivisions
(b)(1)(B) and (C). And the act provides that “a department or agency that employs peace officers
may disseminate data regarding . . . complaints (sustained, not sustained, exonerated, or
unfounded) made against its officers” (id., subd, (d)), and that an “employing agency” “may
release factual information concerning a disciplinary investigation if the officer who is the subject
of the disciplinary investigation . . . publicly makes a statement he or she knows to be false
concerning the investigation or the imposition of disciplinary action” (id., subd. (e)).

2. The General Provisions of the CPRA Do Not Override the Specifics
of Penal Code section 832.7

Citing City of San Jose v. Superior Court (2017) 2 Cal.5th 608, Plaintiffs argue that all
writings within an agency’s possession are “public records” subject to disclosure, and that an
agency like the Department may not decline to disclose public records in its possession relating to
employees of other agencies on the basis that another agency “maintains” the record. (Mot. at
18.) But this argument misunderstands the relevant commands of SB 1421. The CPRA’s general
provisions regarding records in an agency’s possession set forth a baseline rule of public access to
public records. (See, ¢.g., Gov. Code., §§ 6250, 6253, subd. (c).) Both before and after the
enactment of SB 1421, Penal Code section 832.7, subdivision (a) provided almost complete
confidentiality for peace and custodial officer personnel records.. In enacting SB 1421, the

Legislature carefully adjusted section 832.7 to provide for the disclosure of a limited subset of

| records falling within specific categories. Subdivision (b) specifically defines what records are

exempt from the ambit of subdivision (a)’s privacy-provisions: records maintained pursuant to
Penal Code section 832.5. Because, as described above, such records are maintained by an
employing agency, the statute requires that agency to disclose those records.

The CPRA and section 832.7 deploy different words to quality “public records” (“any
writing containing information relating to the conduct of the public’s business prepared, owned,
used, or retained by any state or local agency . . .” [Gov. Code, § 6252, subd. (e)], italics added)
and records governed by section 832.7, subdivision (b) (“peace officer or custodial officer

personnel records and records maintained by any state or local agency” [Pen. Code, §832.7,
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Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)ce

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subd. (b)], italics added). “In using two quite different terms” to refer to records that may be
subject to disclosure under the same statutory scheme relating to peace officer records, “the
Legislature presumably intended to refer to two distinct concepts.” (City of San Jose v. Super. Ct.
(1993) 5 Cal.4th 47, 55 [refusing to treat as synonymous the terms “discipline imposed” and
“conclusions” of an officer investigating a citizen complaint when determining whether
disclosure of peace officer records in response to a Pitchess motion would be required under
Evidence Code section 1045]; see also Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1117 [“Where different words or phrases are used in the same connection in
different parts of a statute, it is presumed the Legislature intended a different meaning” ].)

Thus, the Supreme Court’s general statement in City of San Jose v. Superior Court that the
CPRA “encompasses writings prepared by an agency but also writings it owns, uses, or retains,
regardless of authorship” (2 Cal.5th at p. 622) does not override the express language of revised
section 832.7, The question presented in this case is not whether records the Department has
obtained from other agencies are public-records subject to disclosure under the CPRA, but
whether those records fall into the new categories of non-confidential personnel and complaint
records set forth in Penal Code section 932.7, subdivision (b). And that question hinges on which
agency bears the duty to disclose public records and not whether the records will remain
confidential, so there is no danger that records will be deemed “confidential based on their
location, rather than their content.” (CPOST, supra, 42 Cal.4th at p. 291; see also Mot. at 18.)

The answer is clear: section 832.7 tasks the employing agency with the duty to disclose.

3. Requiring Defendants to Produce Other Agencies’ Records Would
Be Burdensome and Duplicative

Requiring Defendants to produce records of other agencies would impose an extreme
burden the Legislature cannot have intended in amending SB 1421. As a statewide agency, the
Department obtains files from law enforcement agencies across the state when it conducts
reviews and investigations, The Department usually obtains such records when reviewing an
agency’s decision not to file charges in connection with an incident or when conducting an

independent investigation of a law enforcement agency.
12

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc, for Peremptory Writ of Mandate (CPF-19-516545)For example, one such file comprises approximately 109,000 records, including documents,
photographs, text messages, emails, and audio and video files. (Declaration of Michael L.
Newman at §2.) Even assuming an optimistic rate of review of thirty records per hour, this one
file alone would consume at least 3,600 attorney hours. Some review matters include fewer
records; one example includes more than 26,000 items, including text messages, emails,
documents, photographs, and audio or video files. (Jd. at § 4.) Variation between files makes
estimating the precise time and resource burden difficult, but it clearly would be substantial.

The Legislature cannot have intended to impose such an onerous burden on the Department
where employing agencies have the very same types of documents. If it had, it would have made
that command explicit. And yet no such command appears in the text of the amended section
832.7 or SB 1421. Even SB 1421’s legislative history demonstrates the Legislature’s intention to
create a narrow exception to section 832.7’s otherwise broad confidentiality provisions: “SB
1421 opens police officer personnel records in very limited cases,” while still “endeavor[ing] to
protect the privacy of personal information of officers and members of the public who have
interacted with officers.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of
Sen. Bill No. 1421 (2017-2018 Reg. Sess.), May 29, 2018, p. 7.) The Legislature’s intention to
carefully define the circumstances under which peace officer personnel records are disclosed
cannot be squared with a broad mandate to require the Department to disclose records ijreceives

as part of its independent review and investigatory functions.

B. The Attorney General May Decline to Disclose Other Agencies’ Records
Where the Balance of Interests Tips Clearly Against Disclosure

As explained above, requiring Defendants to disclose records obtained from law
enforcement agencies throughout the state would impose an extraordinary burden on the
Department—a burden largely duplicative of that imposed on the state and local agencies that
employ the peace and custodial officers whose records are sought, and one which would risk
uneven protection of privacy rights across disclosure requests. Section 6255 of the CPRA
provides Defendants relief from this burden. (See Gov. Code, § 6255, subd. (a).)

“Despite the value assigned to robust public disclosure of government records both in the
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Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)YD WwW

California Constitution and in the [CPRA], two statutory exceptions nonetheless exist.” (Los
Angeles Cty. Bd. of Supervisors v. Super. Ct. (2016) 2 Cal.5th 282, 291.) One is found in
Government Code section 6255, subdivision (a)—“the PRA’s catchall provision allowing a
government agency to withhold a public record if it can demonstrate that ‘on the facts of the
particular case the public interest served by not disclosing the record clearly outweighs the public
interest served by disclosure of the record.’”” (cbid.) Section 6255 requires courts to consider the
facts of each specific case in “balancing the benefits and burdens of disclosure under the Act.”
(Am. Civil Liberties Union Found. v. Deukmejian (1982) 32 Cal.3d 440, 454 n.14 (Deukmejian).)
A second exception is the group of exemptions enumerated in Government Code section 6254.
(Ibid.) Together, the provisions of sections 6254 and 6255 serve a core purpose of the CPRA:
“balanc[ing] the public right to access to information, the government’s need, or lack of need, to
preserve confidentiality, and the individual’s right to privacy.” (/d. at p. 447; accord, e.g., Los
Angeles Cty. Bd. of Supervisors y. Super. Ct., supra, 2 Cal.5th at p. 291.)

Nothing in SB 1421’s amendments to Penal Code section 832.7 prohibits state agencies
from employing Government Code section 6255’s balancing test to decline to disclose records

where the public interest in non-disclosure clearly outweighs the public interest in disclosure.

1. Government Code section 6255 Still Applies After SB 1421’s
Amendment of Penal Code section 832.7

The amended Penal Code section 832.7 specifically states that the disclosure of records
made non-confidential under the new provisions of the statute are to be made “pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1 of the Government Code)’—thereby incorporating any exemptions that would apply under
the CPRA. (Pen. Code, § 832.7, subd. (b)(1), italics added.) Penal Code section 832.7 also
references specific sections of the Government Code that may not be read to prevent disclosure of
the records described in Penal Code section 832.7, subdivision (b)(1): “Notwithstanding . . .
subdivision (f) of Section 6254 of the Government Code” the records listed in the remainder of

subdivision (b)(1) “shall not be confidential and shall be made available for public inspection.”

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Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)eC eo nr DA HA BW HY

wo De Ss i ia i ia a ei i
BRRRREBRNRSSCRE RADE BSRES

Had the Legislature intended to make the balancing test of Government Code section 6255
unavailable, it could easily have listed that section in the same provision.

Subdivision (b)(1) also states that certain records are subject to disclosure
“notwithstanding . .. any other law.” However, the express enumeration of particular provisions
of the Government Code immediately prior to that statement must be read as “express[ing] the
legislative intent to ‘carve out an exception’” limited to the enumerated code sections (and,
perhaps, limited circumstances akin to the enumerated sections). (Klajic v. Castaic Lake Water
Agency (2004) 121 Cal.App.4th 5, 13.) And the California Supreme Court has cautioned against
relying too heavily on broad language such as ‘notwithstanding any other law’: “The statutory
phrase ‘notwithstanding any other provision of law’ has been called a ‘term of art’ . . . that
declares the legislative intent to override all contrary law.” (Arias v. Super. Ct. (2004) 46 Cal.4th
969, 983, quoting Klajie v. Castaic Lake Water Agency, supra, 121 Cal.App.4th 5 at p. 13.)

Any other conclusion would lead to absurd consequences. For example, neither
Government Code section 6254, subdivision (k) nor the Evidence Code (including the attorney-
client privilege, attorney work product doctrine, and other substantial protections) is expressly
preserved anywhete in Penal Code section 832.7, subdivision (b)(1). The Legislature could not
have intended to eliminate such fundamental confidentiality protections by mere implication.

Plaintiffs argue that the Legislature’s inclusion of specific instructions on what material
maay be redacted from records disclosed under Penal Code section 832.7 means that the section
6255 balancing test is no longer available to allow withholding of any records falling within the
scope of subdivision (b)’s four categories. (Mot. at 13.) Not so. Those instructions only apply
once an agency has determined that a record must be disclosed under section 832.7, subdivision
(b) and pursuant to the CPRA. (See Pen. Code, § 832.7, subd. (b)(5) [An agency shall redact a
record disclosed pursuant to this section” in enumerated circumstances,” italics added].) The
Government Code section 6255 balancing test is part of the CPRA’s analysis of whether a record
is subject to disclosure at all—only if the answer is “tyes” does section 832.7’s “framework of
exemptions” (Mot. at 10) regarding redaction and time-limited withholding apply.

While SB 1421 provides greater access to records relating to peace and custodial officer
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Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)vv

personnel records, it did not eliminate other important portions of the CPRA. The section 6255

balancing test still applies.

2. The Burden on the Department and Duplication of Efforts by Other
Agencies Weigh Against Requiring Disclosure by the Department

“Section 6255 speaks broadly of the ‘public interest,’ a phrase which encompasses public
concern with the cost and efficiency of government.” (Deukmejian, supra, 32 Cal.3d at p. 453.)
“To refuse to place such items on the section 6255 scales” the Supreme Court has explained,
could “impose upon a governmental agency a limitless obligation. Such a result would not be in
the public interest.” (/bid.) Courts have “the duty to weigh the benefits and costs of disclosure in
each particular case” (id. at p. 452), and “‘ a request which compels the production of a huge
volume of material may be objectionable as unduly burdensome.” (Cal. First Amend. Coal. v.
Super. Ct. (1998) 67 Cal.App.4th 159, 166, citing Deukmejian, supra, 32. Cal.3d 440.)

Duplication of efforts and coordination required between multiple agencies thus is a factor
that courts may consider under section 6255’s balancing test.? In Deukmejian, the California
Supreme Court engaged in just such a balancing test. The petitioner had requested index cards
compiled by a network of law enforcement agencies that listed persons suspected of being
involved in organized crime. (Deukmejian, supra, 32 Cal.3d at p. 444.) The cards included
information such as the identities of the family members and known associates of organized
crime members, who may or may not have had any connection to organized crime. The Court
determined that the burden of separating the exempt information from the non-exempt
information outweighed the public interest in disclosure. In doing so, the Court considered that
the records requested “do not indicate which material is confidential, might reveal a confidential
source, or identify the subject of the report” and that “in many instances defendants would have to
inquire from the law enforcement department supplying the information.” (Jd. at p. 453.)

The public indisputably has a “significant interest in the conduct of its peace officers,”

particularly in cases of officer-involved shootings. (Long Beach Police Officers Assn. v. City of

? The factors courts consider include a “wide variety of considerations, including privacy
[citation]; public safety [citation]; and the “expense and inconvenience involved in segregating
nonexempt from exempt information.’ [Citation],° (ACLU, supra, 3 Cal.5th at p. 1043.)

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc, for Peremptory Writ of Mandate (CPF-19-516545)eC er nw

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Long Beach (2014) 59 Cal.4th 59, 74.) Reading section 832.7 by its plain terms to require
disclosure solely by employing agencies does not diminish the transparency or accountability
goals embodied in SB 1421, since records regarding officer misconduct covered by section 832.7,
subdivision (b) are available from individual employing agencies. And, as discussed (supra pp.
9-10), the Department is not best suited to perform the necessary review and redaction of
information obtained from other law enforcement agencies.

Tn sum, the onerous exercise of reviewing, redacting, and disclosing other agencies’ records
at great expense to the public simply will not serve either of the CPRA’s “two fundamental yet
competing interests: (1) prevention of secrecy in government; and (2) protection of individual

privacy.” (City of San Jose v. Super. Ct. (1999) 74 Cal.App.4th 1008, 1017.)

Il. DISCLOSURE OF PRE-2019 RECORDS IMPLICATES IMPORTANT CONCERNS

A. Defendants Were Justified in Withholding Pre-2019 Records Until a Court
Determines that They Must Be Disclosed

Defendants believe that “SB 1421 is best construed as encompassing personnel records that
were created, or that relate to conduct that occurred, before the law took effect on January 1,
2019.” (FAP ¥ 3.) But no controlling Court of Appeal decision on the merits has resolved that
issue.’ Thus, Defendants’ decision to withhold pre-2019 records until such time as a court orders
disclosure in this case, or binding appellate authority mandates disclosure in similar cases, reflects
a proper balancing under Government Code section 6255. The Defendant’s decision to withhold
properly weighs the risk of irreparable harm to the officers’ privacy rights. (See People v. MOOC
(2001) 26 Cal.4th 1216, 1227 [recognizing prior to the enactment of SB 1421 that peace officers
had “a strong privacy interest in [their] personnel records,”].)

Plaintiffs criticize Defendants’ decision to withhold records while the courts consider _

whether the statute should reach pre-2019 records as a “refusal to decide whether [they] must

> The First District Court of Appeal’s published decision denying a writ of supersedeas in
Walnut Creek Police Officers’ Association v. City of Walnut Creek, Case No. A15647 (Mot., Ex.
A), and the Second District Court of Appeal’s denial of a writ of supersedeas in Association for
Los Angeles Deputy Sheriffs v. County of Los Angeles, Case No. B295936 (Mot., Ex. B) are not
decisions on the merits of the underlying judgments or appeals, and therefore are not controlling
precedent for purposes of determining whether Defendants must disclose pre-2019 records. (E.g.,
Bowers vy. Dep’t of Employment (1960) 183 Cal.App.2d 686, 687.)

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)release records” in derivation of the CPRA’s disclosure regime. (Mot. at 13-14.) To the contrary,
the Attorney General did not defer; he withheld based in part on legal uncertainty. A responding
agency may weigh legal uncertainty and impacts on privacy under Government Code section
6255’s balancing test to avoid the untenable choice Plaintiffs seem to favor: disclose records and
tisk exposing officers’ confidential information forever, or take an artificial fegal position on the
new statutory provisions solely to trigger court review. And denial for any reason supports a writ
petition for court review by a record requester, providing the mechanism for Plaintiffs to obtain
resolution of the issues raised by SB 1421s amendments to Penal Code section 832.7. (Sce
Filarsky v. Super. Ct. (2002) 28 Cal.4th 419, 433 [‘in enacting sections 6258 and 6259, the
Legislature specified the exclusive procedure in these circumstances for litigating disputes
regarding a person’s right to obtain disclosure of public records under the Act”; cf. Black
Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 657 [“Section 6255 entails a balancing of

interests, initially by the public agency, then by the reviewing court’).)

B. Disclosure of Pre-2019 Records Regarding the Department’s Peace Officer
Employees Implicates Additional Considerations

After a search for potentially responsive records regarding its own officers, the Department
has identified no records relating to officer-involved shootings or use of force resulting in death
or great bodily injury for the relevant timeframe (2014 to present). The Department has identified
some records pertaining to incidents of officer dishonesty and sexual assault.

However, an issue has arisen regarding the proper interpretation of the phrase “sustained.
finding” and its application to the potentially responsive records identified. Whether the latter
records are subject to disclosure hinges in part on whether a “sustained finding” was made
relating to sexual assault or dishonesty by a peace officer or a custodial officer. (Pen. Code,

§ 832.7, subds. (b)(1)(B)(i) & (6)(1)(C).) Under Penal Code section 832.8, subdivision (b),
““sustained’ means a final determination by an investigative agency, commission, board, hearing
officer, or arbitrator, as applicable, following an investigation and opportunity for an

administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code that the

actions of the peace officer or custodial officer were found to violate law or department policy.”

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)The process for administrative appeal of disciplinary actions against peace and custodial officers
employed by the State is an appeal of the employing agency’s decision to the State Personnel
Board. (Alameida v. State Pers. Bd. (2004) 120 Cal.App.4th 46, 52-53.)

Department records pertaining to officer dishonesty and sexual assault implicate unresolved
questions regarding whether a “sustained finding” within the meaning of section 832.7 exists

when (a) an officer appeals an adverse employment action to the State Personnel Board but the

“matter settles before hearing and the Department withdraws its Notice of Adverse Action, or (b)

when the State Personnel Board sustains a finding but the case settles after the employee has filed
a writ petition in superior court. If this Court orders the disclosure of pre-2019 records, the ,
parties should first brief whether a “sustained finding” exists in these circumstances.
Additionally, records will be redacted under Government Code section 6254, subdivision
(4), including numerous redactions to preserve attorney-client privilege and attorney work
product. Defendants request that any order of this Court allow sufficient time to accommodate
these redactions, which also serve important and longstanding policy interests.
CONCLUSION
For the foregoing reasons, Defendants request that the court deny the peremptory writ of
mandate as to disclosure of records of other agencies’ peace and custodial officers. If the Court
determines that section 832.5, subdivision (b) does not apply to records regarding incidents that

occurred before January 1; 2019, the Court should also deny the writ as to those records.

Dated: May 6, 2019 Respectfully Submitted,

XAVIER BECERRA

Attorney General of California
STEPAN A, HAYTAYAN

Supervising Deputy Attorney Gener
Amis L. MEDLEY

JENNIFER E, ROSENBERG
Deputy Attorn ener:
Attorneys for Refenda ‘avier Becerra, in

his official capacity as California Attorney
General, and the California Department of
Justice

19

Opposition of Defendants Xavier Becerra and Department of Justice to Motion of Plaintiffs First Amendment
Coalition and KQED, Inc. for Peremptory Writ of Mandate (CPF-19-516545)DECLARATION OF ELECTRONIC SERVICE AND EMAIL

Case Name: First Amendment Coalition v. Xavier Becerra, et al
Case No.: CPF-19-516545

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter. | am familiar with the business practice at the Office of the
Attorney General for collecting and processing electronic and physical correspondence. In
accordance with that practice, correspondence placed in the internal mail collection system at the
Office of the Attorney General is deposited with the United States Postal Service with postage
thereon fully prepaid that same day in the ordinary course of business. Correspondence that is
submitted electronically is transmitted using the OneLegal electronic filing system. Participants
who are registered with OneLegal will be served electronically, Participants in this case who are
not registered with OneLegal will receive hard copies of said correspondence through the mail
via the United States Postal Service or a commercial carrier.

On May 6, 2019, I electronically served the attached OPPOSITION OF DEFENDANTS
XAVIER BECERRA AND DEPARTMENT OF JUSTICE TO MOTION OF
PLAINTIFFS FIRST AMENDMENT COALITION AND KQED, INC. FOR
PEREMPTORY WRIT OF MANDATE by transmitting a true copy via this Court’s OneLegal
system. In addition, I electronically served the foregoing document by transmitting a true copy
via electronic mail, addressed as follows:

SEE ATTACHED SERVICE LIST

I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on May 6, 2019, at Los Angeles, California.

Beth Capulong Ci Gubons~

Declarant J Si engture Gg

POS - Opposition to Motion. docxememeons

SERVICE LIST

David E. Snyder

First Amendment Coalition
Glen A. Smith

534 4th Street, Suite B

San Rafael, CA 94901-3334

' E-mail: dsnyder@firstamendmentcoalition.org

gsmith@ firstamendmentcoalition.org

Michael T. Risher, Esq.

Law Office of Michael T. Risher
2081 Center St. #154

Berkel