Brady List (Napa County)

To Whom It May Concern:

Pursuant to the California Public Records Act, I hereby request the following records:

In accordance with California Penal Code §832.7 (b)(1), as amended by SB 1421, I am requesting all "Brady lists," "Giglio lists," "potential impeachment disclosure lists," or any similar compiled records or lists of records of the type set forth in California Penal Code §832.7 (b)(1)(C). That is, "Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence."

In particular, the records I am seeking would provide a list of law enforcement officers in your jurisdiction whose involvement in a criminal proceeding would have to be disclosed as potentially exculpatory evidence in accordance with Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 450 U.S. 150 (1972). I am making this request for both sworn employees and non-sworn employees. At a minimum, please include the full name, serial number, and agency of employment; seperate lists for each agency in your jurisdiction are fine. If possible, please also include the date of inclusion on the list and any descriptive information relating to the reason for inclusion on the list. If redactions are made, please be sure to justify how the redaction "clearly outweighs" the public interest of disclosure per Government Code §6255.

The time limit of this request is the previous 10 years, or to the maximum extent possible under your agency's records retention schedule if less than 10 years. To be clear, while SB 1421 went into effect on January 1, 2019, in accordance with the recent appelate decision in Walnut Creek Police Officers’ Association v. City of Walnut Creek et al. which unsuccessfully challenged retroactivity, your agency is required by law to produce such records created prior to January 1, 2019 as well as those records created after the effective date.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 calendar days, as the statute requires.

Sincerely,

Dan Rubins

Mr. Myers,
I appreciate your quick response, especially during this holiday week.

I certainly understand and support the need for privacy, and the careful balance that has with transparency. However, I would ask that your office reconsider the rejection. All of the statutory and case law you cite was made before SB 1421 went into effect, written, or was even conceived. I'm no lawyer but even a plain reading of Penal Code §832.7, which is now the law of the land, quite clearly does not support the reasons for rejection. In fact, the rejection from your agency conflicts with both the ruling in First Amendment Coalition v. Becerra on May 21st as well as the CA Department of Justice's actions following that ruling. Now, to the rejection reasons.

Privacy
In Walnut Creek Police Officers Association v. City of Walnut Creek (2019) 33 Cal. App. 5th 940, the unwarranted invasion of personal privacy argument was rejected as "without merit" by the First District Court of Appeals. The CA DOJ attempted to revive this argument in FAC v. Becerra and was soundly rejected.

Investigatory Records
I'm not sure what the basis is for the last sentence of your letter, but SB 1421 very clearly does affect the County’s right or ability to assert the exemptions and, in particular, the investigatory records exemption. The Penal Code now reads in §832.7 (b)(1), as amended by SB 1421, "[n]otwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code)." Even without SB 1421, when charges or complaints of wrongdoing are made regarding ordinary public employees, the right of access to public records requires disclosure of all "well-founded" complaints, the information upon which they are based, and any discipline imposed. (American Federation of State, County and Municipal Employees, et al. v. Regents of University of California (1978) 80 Cal. App. 3d 913, 917; Bakersfield City School District v. Superior Court (2004) 118 Cal. App. 4th 1041, 1046.)

Privilege
Turning back to the decision in FAC v. Becerra to address the question of privilege, Judge Ulmer writes, "citing §6254, the attorney general says records will need redaction, "to preserve attorney-client privilege and attorney work product" (citations omitted). This may be so, but it is not a proper ground for entirely refusing to disclose the records."

Deliberative Process
As the Justices in the Times Mirror case cite from NLRB v. Sears, Roebuck & Co., "courts have uniformly drawn a distinction between predecisional communications, which are privileged [citations]; and communications made after the decision and designed to explain it, which are not." While the fact that "a sustained finding was made" against an officer may, and should, influence departmental decisions does not itself make that fact exempt from disclosure. The Justices in Times Mirror citing EPA v. Mink further explain "that it requires different treatment for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other." In addition, the nature of the presumed records would seem to invalidate concerns in Times Mirror that rest on disclosure before an event (i.e. public outcry over a future appointment with a controversial group), as well as those that rest on concurrent or near-concurrent disclosure about an event (i.e. the Governor's security concerns). Furthermore, as the Justices describe in FAC v. Becerra, the balancing test requires more than a "terse, conclusory, and speculative declaration" to pass.

In responding to this letter, please bear in mind that the California Constitution requires agencies to broadly construe all provisions that further public rights of access, and to apply limitations as narrowly as possible. Cal. Const., Art. 1, sec. 3(b)(2). The CPRA recognizes "no limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure." (Cal. Gov’t Code § 6257.5.)

Thank you in advance for your prompt attention to this matter.

Sincerely,
Dan Rubins