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The California Supreme Court Approves the Emerging Custodial Government Agency Exception to the Pitchess Procedural Requirements for Peace Officer Personnel Records

The California Supreme Court Approves the Emerging Custodial Government Agency Exception to the Pitchess Procedural Requirements for Peace Officer Personnel Records

by Tony M. Sain, Esq.

In July 2015, the California Supreme Court unanimously decided a criminal case appeal that also had unexpectedly significant implications for public entities' administrative operations and their defense of civil actions, particularly given its intersection with the Pitchess privileges governing discovery and disclosure of peace officer personnel file information: People v. Superior Ct. (Johnson) (July 6, 2015) 2015 Cal. LEXIS 4647 (no. S221296, slip op.).

Due to the arguments made by some of the appellate litigants, including criminal prosecutors who were seeking to avoid reviewing officer personnel files for the purpose of making Brady disclosures of exculpatory material, and due to the rationale applied by the appellate court, the Johnson case had the potential to reverse a line of court cases whose holdings had exempted public entities from the Pitchess statutes' complex discovery procedures.[i]  The Johnson Court was effectively invited to hold that where a public entity has police officer personnel file records in its possession or custody, that entity must obtain a Pitchess order before even reviewing any such protected records. Such a ruling could have had disastrous effects on public entities' defense of civil litigation, and even on their day-to-day administration of their police departments and officers: forcing government agencies to run to court for an order before conducting Internal Affairs investigations, deposing their officers in defense of civil suits, or even checking their officers' files as part of routine administration.

In reaching its decision—balancing a criminal defendant's Due Process/Brady disclosure rights with peace officers' Pitchess personnel record privacy rights, and the practical needs of criminal prosecutors—the Supreme Court effectively confirmed that public entities serving as custodians of their peace officers' personnel files are not required to obtain a Pitchess order from a court before reviewing such personnel file information.

The Johnson case thus effectively approved prior case law holding that, in state court cases, where a custodial government agency is sifting through peace officer information already subject to its custody, the agency is not conducting "discovery" that would otherwise require a Pitchess motion; but where that custodial government agency seeks to "disclose" that protected personnel file information to someone outside of the privilege, it must obtain a Pitchess order.

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[i]               Normally, under California's Pitchess procedure, which applies in both state criminal and civil court cases, any information that meets the statutory definition of peace officer "personnel file" information is protected from discovery or disclosure to persons/parties outside the scope of the privilege—regardless of where such information is stored.  Under the Pitchess procedure then, where a party seeks to obtain/discover or publish/disclose officer personnel file records/information, that party must make a motion for a court order showing good cause for the records/information to be discovered/produced to the moving party, or published/disclosed to some other party: such as to a jury at trial. The Pitchess procedure has several detailed technical requirements, all of which must be met before the moving party can obtain in camera review by the court of the personnel file records-information sought: and only after the court conducts such in camera review may any personnel file records-information be produced/discovered to the moving party and/or published/disclosed to a non-party, such as the trial jury. Furthermore, even after the court issues a Pitchess production/discovery and/or publication/disclosure order, the Pitchess procedure imposes several restrictions on what can be discovered/disclosed and on what must remain protected by court order.