Pollak, Vida & Barer

In First Amendment Coalition v. Superior Court (Bonta), published December 28, 2023, the First District Court of Appeal, Division 3 granting in part and denying in part a writ petition challenging a trial court’s decision on a California Public Records Act writ proceeding.  Penal Code section 832.7(b) makes records relating to peace officers and custodial officers who engage in specified types of harmful or unlawful misconduct available under the California Public Records Act by deeming the records nonconfidential and requiring them to be made available for public inspection under the CPRA, notwithstanding subdivision (a) of section 832.7(a) (which generally protects officer personnel records from inspection except under specific procedures), Government Code section 7927.600 (which exempts law enforcement investigation records and files from the CPRA), “or any other law.”  The petitioners filed CPRA requests for records in the possession of the Attorney General and the Department of Justice regarding categories of misconduct described in section 832.7(b). In Becerra v. Superior Court (2020) 44 Cal.App.5th 897, an earlier decision in the same proceeding, the appellate court determined that the CPRA’s “catch-all” exemption for documents for which the public interest in nondisclosure clearly outweighs the public interest served by disclosure is not preempted by section 832.7(b).  Relying on Becerra and Government Code section 7927.705, which incorporates into the CPRA exemptions and prohibitions under state law outside of the CPRA, the trial court ruled that documents protected by Government Code section 11183 (permitting state executive departments to subpoena documents and testimony, and barring divulging information obtained from the subpoenas), Penal Code sections 6126 and 6126.3 (providing that confidential reports of the Office of Inspector General are not public records subject to the CPRA), and Unemployment Insurance Code section 1094 (protecting information obtained in administering the code) applied to the requested information.

The appellate court disagreed with the trial court’s conclusion that under Becerra, the only CPRA exemption that did not apply to section 832.7(b) records was Government Code section 7927.600.  Instead, any statutory exemptions that conflict with section 832.7(b) do not apply to documents that fall under section 832.7(b).  Government Code section 11183’s exemption of subpoenaed information would directly conflict with section 832.7(b) and its purpose, and therefore does not exempt records to which section 832.7(b) applies.  On the other hand, because Penal Code sections 6126 and 6126.3 provide that confidential OIG reports are not public records subject to the CPRA at all, the statutes show a legislative intent that such documents cannot be produced under section 832.7(b).  Because the petitioners did not show whether the Unemployment Insurance Code document protections conflict with section 832.7(b), the petitioners did not carry their burden as to those documents.  The appellate court upheld the trial court’s ruling, except as to the Government Code section 11183 documents.