Brady List (San Joaquin 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 in

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

Ms. Hegge,
Thank you for your timely and detailed letter. Respectfully, I ask you to reconsider for the following reasons. I will try to address your points in order, but please feel free to follow up if I have missed something.

First, I sent the same request to all 58 counties in California and this is the first I heard that it does not reasonably describe "identifiable records." Nonetheless, I will attempt to describe the records I seek in more detail, that is materials covered by California Penal Code §832.7 (b)(1). Based on the materials turned over by other counties, this likely includes personnel files, disciplinary records, reports, and lists of officers where the employing agency may have Brady material. To be clear since I see you brought up Haynie v. Supreme Court, I am not asking that a Brady list be compiled, just that the county send such a list if it already exists, as well as files that may contain Brady material. If this is insufficient to locate the records, please let me know. I would remind you of the County's obligation under Gov. Code, § 6253.1 and Community Youth Atheletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1417 to assist requestors in identifying records that are responsive to the request or the purpose of the request, and describe the information technology and physical location in which the record or records exist. In addition, Gov. Code, § 6253.1, subds. (a)(1)-(3) requires the County to provide suggestions for overcoming any practical basis for denying access to the record or records. In short, a blanket denial for this reason is unacceptable; rather, the County is obligated to help advance the request.

Next, to your numbered objections:
1. It is presumed that lawmakers understand the context in which they make laws. The legislature, in passing SB 1421, clearly decided that the public interest in bringing police misconduct to light outweighed personal privacy concerns. That said, I certainly understand if limited redactions, like home addresses, are necessary to protect sensitive information or if additional redactions are needed to protect ongoing investigations. As to the constitutionality, Prop 59 also enshrined public transparency in the California constitution and has been repeatedly litigated and upheld in cases with more personal privacy implications in the decade and a half since its passing.
2. Again, lawmakers enacted SB 1421 with full knowledge of this context and still decided to move ahead with transparency.
3. This is a misapplication of the law and does not account for SB 1421. In particular, the text of California Penal Code §832.7 (b)(1) now reads "Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law..."
4. Again, lawmakers enacted SB 1421 with full knowledge of this context and still decided to move ahead with transparency.
5. Again, lawmakers enacted SB 1421 with full knowledge of this context and still decided to move ahead with transparency.
6. In L. A. Cnty. Bd. of Supervisors v. Superior Court of L. A. Cnty., 2 Cal.5th 282, 386 P.3d 773, 212 Cal.Rptr.3d 107 (Cal., 2016), the California Supreme Court concluded that privilege "only protects communications between an attorney and client made for the purpose of seeking or delivering the attorney’s legal advice or representation." Brady material is provided to prosecutors to fulfill their duty to ensure a fair trial, not for representation. Once again, lawmakers enacted SB 1421 with full knowledge of this context and still decided to move ahead with transparency.
7. Under CPRA and the California constitution, exemptions are to be construed narrowly; this has been repeatedly upheld by the courts. I am concerned that the deliberative process exemption is applied too broadly. As cited by the Justices in the Times Mirror case that helped define the bounds of this exemption, "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." NLRB v. Sears, Roebuck & Co., 421 U.S. at pp. 151-152 [44 L.Ed.2d at p. 48]. There are further limitations on the deliberative process exemption, as the Justices cite in Times Mirror, "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." Environmental Protection Agency v. Mink 8212 909, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). In addition, the historical 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). It would be difficult to show that the public interest is served and "clearly outweighs" that of disclosure, especially in the context that legislators understood current CPRA exemptions when they passed SB 1421.
8. Again, lawmakers enacted SB 1421 with full knowledge of this context and still decided to move ahead with transparency.
9. There is no work product requested. I have requested records provided to prosecutors, not records that prosecutors have created.

I understand that SB 1421 sent shockwaves through the law enforcement community in California and raises some very real privacy concerns for officers (which I am happy to collaborate on to address). However, I humbly ask that you reconsider this denial in light of the points above, recent appellate decisions, and OAG guidance on the matter.

Sincerely,

Dan Rubins