Motion To Disclose Personnel Files Should Be Filed Under Seal

William Taylor was a deputy chief of the Burbank, California Police Department. In September 2009, he sued the City for retaliation, alleging that he reported allegations of sexual harassment by a Department employee, that he complained that black and Hispanic employees were being fired because of their race, and that he had asked outside agencies to investigate a theft at the Department. Taylor believed he was initially demoted and later fired for lodging his complaints.

In the retaliation lawsuit, Taylor served a discovery motion seeking the personnel records of two Burbank police officers. A dispute quickly arose as to whether the motion should be filed “under seal.” A motion that is filed “under seal” is not available to the public.

The California Court of Appeals found that the motion should be filed “under seal.” The Court reasoned that “in any case, civil or criminal, in which discovery or disclosure of a peace officer’s personnel records are sought, the party seeking disclosure must file a written motion that, among other things, describes the information sought and states good cause for the discovery, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records. If the moving party fulfills these requirements, then the Court examines the records in camera. This process balances the conflicting interests of the moving party’s right to a fair trial and the officer’s interest in privacy. An officer thus has a conditional privilege in his or her personnel records.

“If information is conditionally privileged, it follows that a party cannot reveal it absent filing the appropriate discovery motion and after an in-camera hearing. A party therefore cannot disclose the conditionally privileged information, even in the very discovery motion that seeks to obtain it.

“But here Taylor filed very detailed discovery motions seeking the personnel files. Those motions contain, for example, names, dates, and the substance of communications between people in the department. Taylor was Burbank’s deputy chief of police. As such, he was involved in internal affairs investigations and events that are the subject of the lawsuit. Based on Taylor’s rank and intimate involvement in these events, it is a reasonable inference he has knowledge of the officers’ personnel files. It is a further reasonable inference that the information or allegations about the officers that Taylor recites in his discovery motion are in the officers’ personnel files.

“It is therefore proper for the discovery motions to be sealed. In declining to seal the discovery motions, the trial court noted that the information in the motions will likely come out at trial. That may very well be true. In any event, the statutory process cannot be bypassed. The Court also cited the notion that court proceedings are generally open to the public. Our Legislature, however, in enacting the discovery statutes at issue, created a conditional exception to that general rule: Peace officer personnel files are discoverable if the party seeking them satisfies the statutory mandates. Taylor cannot reveal conditionally privileged information under the guise of seeking it, without first complying with the statutory mandates.”

City of Burbank v. Superior Court, 2011 WL 1950015 (Cal. App. 2011).