|Submitted||July 4, 2019|
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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.
Dear Mr. Rubin –
The following is in response to the request for records you made pursuant to the California Public Records Act (CPRA) by email on July 4, 2019. You have requested “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).” You then specifically identified that the information you are seeking under Penal Code section 832.7(b)(1)(C) 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.” The time period of your request covers “the previous 10 years, or to the maximum extent possible under your agency’s records retention schedule if less than 10 years.”
Penal Code section 832.8(b) defines “sustained” as “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code, that the actions of the peace officer or custodial officer were found to violate law or department policy.”
With regards to peace officers employed by this office (i.e., Sacramento County District Attorney Criminal Investigators), we have no documents responsive to your request.
With regards to peace officers and custodial officers employed by other agencies, prior to January 1, 2019, all peace officer and custodial officer personnel records were confidential. Because of the confidentiality of such personnel records, including sustained findings of dishonesty, the California Supreme Court, in People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, affirmed that law enforcement agencies notifying District Attorney’s Offices of potential Brady impeachment information should only advise the District Attorney that the officer’s personnel records may contain potential Brady impeachment information and should provide no further details. As such, our office generally does not possess records of sustained findings of dishonesty by peace officers. We have not received any sustained findings of dishonesty since January 1, 2019.
Moreover, Penal Code section 832.7(b), as amended by SB 1421, does not mandate the disclosure of records in the possession of District Attorneys regarding officers not employed by their offices. Penal Code section 832.7 now requires the disclosure of certain personnel records of peace officers and custodial officers maintained by an officer’s employing agency, as well as records maintained by any state or local agency as required by Penal Code section 832.5. The types of records maintained by any state or local agency under Penal Code section 832.5 concern complaints made by members of the public against peace officer personnel it employs.
To the extent that the District Attorney’s Office has obtained records from other state and local law enforcement agencies, the District Attorney’s Office is not the agency that “maintains” those documents. Personnel records and records required by Penal Code section 832.5 must be requested from the employing agency. This makes logical sense because the employing agency not only maintains the records but is best situated to assess any applicable exceptions to the disclosure requirement and any statutorily required redactions concerning sensitive and private information. Further, to the extent that the District Attorney’s Office has obtained such records in relation to investigations or proceedings that the District Attorney is conducting, the disclosure provisions in section 832.7 do not apply to the District Attorney as noted in section 832.7(a): “This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers . . . conducted by . . . a district attorney’s office.” Thus, the District Attorney’s Office will only produce those non-exempt records, if any, relating to peace officers employed by the District Attorney’s Office. We have already identified that we possess no such documents responsive to your request.
Your request contains additional language suggesting that you are seeking information that “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).” This office does not maintain a “Brady,” “Giglio,” or other specific list of law enforcement officers that our deputy district attorneys consult to determine if there is potential impeachment material to discover. Instead, we maintain an index to alert our prosecutors when a law enforcement officer has potential Brady information. A committee of experienced prosecutors evaluates potential Brady situations and decides whether an officer will be included in this index. If a deputy district attorney is alerted through the index as to an officer, a further evaluation is conducted to determine whether, given the circumstances of that particular case, information needs to be disclosed to the defense. As such, each case involves its own decision-making process, and the specific disclosure that occurs may vary depending on the facts involved.
Therefore, records we possess as part of our Brady index are part of our investigatory files. Government Code section 6254(f) exempts from CPRA disclosure records that are part of investigatory files compiled by local agencies for law enforcement purposes, which includes district attorneys’ offices. (See Rivero v. Superior Court (1997) 54 Cal.App.4th 1048; Rackaucas v. Superior Court (2012) 104 Cal.App.4th 169; Fagan v. Superior Court (2003) 111 Cal.App.4th 607; County of Los Angeles v. Superior Court (2005) 130 Cal.App.4th 1099.) This exemption applies not only to documents generated by the agency, but also to records gathered from other sources. (See Haynie v. Superior Court (2001) 26 Cal.4th 1061.) This exemption continues to apply even if the case is complete and the investigation closed. (See Rivero v. Superior Court (1997) 54 Cal.App.4th 1048; Williams v. Superior Court (1993) 5 Cal.4th 337.)
Furthermore, the documents you seek are exempt from disclosure by the deliberative process privilege, work product privilege, and also on the ground that the public interest served by not disclosing these outweighs the public interest served by disclosing them. (Gov’t Code § 6255; Times Mirror Co. v Superior Court (1991) 53 Cal.3d 1325; Rogers v Superior Court (1993) 19 Cal.App.4th 469; Wilson v. Superior Court (1996) 51 Cal.App.4th 1136.) These records reflect the thought processes of those whose responsibility it was to decide whether or not a particular officer would be included in our Brady index. Disclosure would expose the decision-making process in such a way as to discourage candid discussion, as well as discourage the reporting of information that results in an officer being included in the index, and thereby undermines the ability of the District Attorney’s Office to perform its function of ensuring the fair administration of justice by providing potentially exculpatory information to criminal defendants.
This conclusion is supported by the recent amendment to Penal Code section 832.7 by SB 1421. SB 1421 provides for the disclosure of responsive records “pursuant to the California Public Records Act.” (Pen. Code § 832.7(b)(1).) Attorney work product, deliberative process privilege, and official information privilege are incorporated into the Public Records Act as exemptions from disclosure. (Gov. Code §§ 6254(k), 6255; County of Los Angeles v. Superior Court (2000) 82 Cal.App.4th 819, 833.) In particular, the attorney work product exception protects the confidentiality of any writing that is maintained as confidential and that reflects an attorney’s impressions, conclusions, opinions, legal research, or legal theories. (Code Civ. Proc. § 2018.030.)
With regards to your request for records regarding non-sworn law enforcement personnel, the amendments to Penal Code section 832.7 set forth in SB 1421 are not applicable. Those records are exempt from disclosure under the CPRA for the reasons previously noted, including Government Code sections 6254(f), 6254(k), and 6255.
Michael Blazina | Assistant Chief Deputy District Attorney
Sacramento District Attorney's Office
901 G Street | Sacramento, CA 95814