City, Barlow release information on confidentiality of officer personnel files
As promised, City Atty. Dennis Barlow on Tuesday released answers to four city generated questions including “Are personnel records confidential?” “How are the personnel records of public employees different from those in the private sector?” “How are the personnel records of police officers different from those of other public employees?” and “Are there exceptions to the rules which prohibit the disclosure of information contained in a police officer’s confidential personnel file?” See the document below:
Information on Confidentiality of Public Employee and Police Officer Personnel Files
1. Are personnel records confidential?
Yes. Under both the U.S. and California Constitutions, people have a generally recognized privacy right in many types of personal information including their personnel or employment records. An employee’s right of personal privacy is protected by these constitutional provisions from unwarranted invasions.
2. How are the personnel records of public employees different from those in the private sector?
The privacy rights of individuals who work for public agencies are modified in part by the California Public Records Act (CPRA). The cornerstone of the CPRA is the principal that openness in government is essential to the functioning of our democracy. In order to verify the accountability of public employees, the legislature has mandated that individuals must have access to many government files and documents. The CPRA does still recognize the privacy rights of individual in many types of records, and precludes the public disclosure of personnel or employment records where it would constitute an unwarranted invasion of personal privacy. Access to government payroll information is an exception to this general exclusion from disclosure. The California Supreme Court has determined that disclosing the names of public employees and the amount of their salaries in response to a public records request, is not an unwarranted invasion of personal privacy and that information should be disclosed if requested.
3. How are the personnel records of police officers different from those of other public employees?
In addition to the general Constitutional protections of the privacy of personnel or employment records and information, the California Penal Code provides specifically that personnel records of peace officers, and the information contained in them are confidential and cannot be disclosed except through a specific procedure that requires a court order. This includes information regarding investigations into police misconduct. This is a process that was enacted as part of a larger statutory scheme which requires all police agencies in California to establish a process for accepting and investigating complaints made against police officers. Police officers are some of the most frequent targets for complaints against public employees, primarily because of the type of work they do, some of which involves issuing traffic citations, investigating criminal behavior and making arrests. A majority of the complaints that are made are very minor (for example, rudeness is very common), but others can be much more serious, such as those alleging the use of excessive force or other types of misconduct. Whether they are small or large, they are required to be — and are – investigated. Because the legislature wanted to encourage the investigation of all complaints against police officers, they also put into place several safeguards against the public disclosure of these investigations and the results of the investigations. The reasons for keeping confidential other personal information relating to a police officer are fairly obvious and are for theirs and their families’ safety. There are, however, some exceptions to this general confidentiality rule discussed in the answer to the next question.
4. Are there exceptions to the rules which prohibit the disclosure of information contained in a police officer’s confidential personnel file?
There are several exceptions to this confidentiality rule relating to a police officer and information in his or her personnel file. First, the person who made a complaint against the police officer must be provided with written notification of the disposition of their complaint. In addition, if the district attorney, attorney general or grand jury is investigating the conduct of an officer they are entitled to have access to the officer’s personnel file. If the officer or the officer’s representative or agent publicly makes a false statement concerning an investigation against him or her and the imposition of discipline, the police department or the City may release factual information regarding the disciplinary investigation and/or or imposition of discipline to refute the false statements made by the officer or his or her representative. Federal law does not recognize the specific state laws protecting police officer personnel records and resorts to general principles of privacy and other rules of evidence in evaluating whether to publicly release police personnel records. Where a lawsuit or criminal case is filed in federal court, information contained in the police officer’s personnel file may be disclosed if it is relevant to the case. Another exception can occur when a police officer files a lawsuit against his or her employer. In that case his personnel file and/or the information contained in the file may become public through the court proceedings. While some parts of the file may be sealed by the court from public view, others may be made public when the case goes to trial.
I await your comments.