Privacy Issues in the Community College Workplace

h. Release to DA of List of Officers against Whom Findings of Dishonesty, Moral Turpitude or Bias Have been Sustained The California Attorney General has opined 338 that Penal Code section 832.7(a) does not authorize a district attorney, for the purpose of complying with Brady , to directly review the personnel files of peace officers who will or are expected to be prosecution witnesses to determine whether any Brady issues apply. However, to “facilitate compliance with Brady ,” the CHP may lawfully release to the district attorney’s office the names of officers against whom findings of “dishonesty, moral turpitude, or bias have been sustained, along with the date of the earliest such conduct.” The district attorney may then use this information to comply with Brady requirements. The California Attorney General, in issuing its opinion, relied on People v. Superior Court (Johnson). 339 In Johnson , the California Supreme Court determined that prosecutors do not have unfettered access to the confidential personnel records of police officers who are potential witnesses in a criminal case but must follow the same procedures that apply to criminal defendants in order to obtain information in those records (i.e., filing a Pitchess motion). Thus, the prosecutor may fulfill his or her Brady obligation if he/she informs the defendant that the department has informed the prosecutor that the personnel records of the officer may contain Brady information, and that the officers were important witnesses.

Note: Brady 340 requires the prosecution to disclose to the defense any exculpatory evidence, including potential impeaching evidence. This duty extends to others acting on the prosecution’s behalf, including the police. The criminal defendant may then, under Pitchess 341 , compel discovery of evidence in the law enforcement officer’s personnel file that is relevant to the defendant’s ability to defend against the criminal charge.

i. No 60-Day Limitation in Public Records Act for Accessing Police Calls for Service Records In Fredericks v. Superior Court of San Diego County 342 , a Public Records Act request was made for all “complaints and/or request for assistance” relating to any burglary and identity theft in San Diego for the preceding six-month period. The request would require the department to redact a large number of Calls for Service reports, at a substantial cost of lost time in work days to complete the response to the request. In response, the City sought to limit the request to a 60- day time period and to recover more than its direct costs of duplication. The appellate court found that a 60-day limitation could not be read into the act for production of the reports. However, the court could apply a balancing test for the production of the requested information that could take into account the expense, inconvenience and work load burden of segregating exempt from non-exempt information and redacting documents. The court could also set a time limitation if the balancing of the public interest factors supported one. The case was then remanded for the trial court to determine whether greater disclosures were warranted and to condition, if appropriate, any additional disclosures upon an additional imposition of fees and costs over the direct costs of duplication.

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 106