New Appellate Decision Excludes Elected Peace Officers From The Confidentiality Protections Against Public Records Act Requests Found In The Pitchess Statutes (Pen. Code, §§ 832.5, 832.7, 823.8)
The CPRA provides a mechanism through which members of the public can access records in the possession of state and local agencies. It does not, however, provide an absolute right of access to all public records. Among the exemptions from disclosure under the CPRA are sections 832.7 and 832.8 of the Penal Code—i.e., the Pitchess statutes. The Pitchess statutes render as confidential the "personnel records" of peace officers, and information obtained from those records. "Personnel records" are defined as anything in a peace officer's file maintained by his or her "employing agency." (Pen. Code, §§ 832.7(a), 832.8(a).) The Pitchess statutes are routinely cited by law enforcement agencies throughout the state when responding to CPRA requests concerning peace officer personnel records.
With respect to elected peace officers, much of that has changed with the California Court of Appeal's June 29, 2022 decision in Essick v. County of Sonoma.
Essick v. County of Sonoma
Following a harassment complaint submitted against Mark Essick, the elected sheriff of Sonoma County, the County commissioned an investigator to prepare a written report into the allegations contained in the complaint. Thereafter, a local newspaper requested that the County release the complaint, the report, and various related documents (collectively "the Report") pursuant to the CPRA (Gov. Code, § 6250 et seq.) County Counsel Robert Pittman notified Sheriff Essick that the County received the CPRA request and that the County intended to release the Report.
In a reverse CPRA action, Sheriff Essick moved for a preliminary injunction to bar the County's release of the Report. Sheriff Essick also sought a temporary restraining order and preliminary injunction to keep the Report closed to the public for the duration of the trial proceedings. The trial court issued the requested temporary restraining order but denied the preliminary injunction ruling that there was no evidence to show the investigative records should be classified as "personnel records" under Penal Code section 832.7(a) that are protected from public release.
Sheriff Essick appealed the trial court's denial of his request for a preliminary injunction barring the Report's release, contending that first the Report should be classified as confidential under an exemption to the CPRA, either as a peace officer personnel record or because it constitutes a report or finding relating to a complaint by a member of the public against a peace officer (Pen. Code, §§ 832.5, 832.7, 832.8). And second, Sheriff Essick maintained that the County should be estopped from releasing the Report because it promised him that, in conducting its investigation, it would abide by Government Code section 3300 et seq. (the Public Safety Officers Procedural Bill of Rights Act) (POBRA), and it therefore should be bound to keep the results of the investigation confidential. The Court of Appeal affirmed the trial court’s denial of Sheriff Essick’s request for a preliminary injunction barring the report’s release.
In relevant part, the Appellate Court held:
- The County is not Sheriff Essick's "employing agency," therefore the Report is not protected under the Pitchess statutes. In order for the records to be protected under the Pitchess statutes as confidential "peace officer" personnel records and "information obtained from these records," the records must be maintained by that officer's "employing agency" (Pen. Code, § 823.8(a.) The County cannot be the Sheriff Essick's employer because the Board of Supervisors lacks the power to hire, discipline, and terminate the county sheriff. It is immaterial that the County has chosen to pay its elected official, or that the County commissioned the preparation of the Report following the complaint against the sheriff. Ultimately, due to the County's lack of power over the sheriff, the Report had no employer-driven consequence affecting Sheriff Essick's duties, tenure, compensation, or benefits. The county sheriff is still an officer elected by the people, and as such, is ultimately responsible to the voters—not to the Board of Supervisors or anyone else in county government.
- Nothing in the POBRA statutory scheme explicitly grants or mentions confidentiality from CPRA requests. The only arguable legal source for protection would have come from the Pitchess statutes, which, as stated above, do not apply here. Accordingly, the County did not improperly disclose the Report.
Practical Guidance and Takeaway
Peace officers who are also elected officials are excluded from confidentiality protections against Public Records Act requests. A Court will look to the extent to which a county’s board of supervisors—or a city council—has disciplinary power over an elected law enforcement official to determine whether a sheriff or chief is an employee whose personnel records may subject to CPRA or a Pitchess motion.
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