Police Shooting Report Mostly Subject To Public Records Disclosure

On March 24, 2012, just after 11:00 p.m., two officers with the Pasadena, California Police Department responded to a 911 call. The caller claimed to have been robbed at gunpoint by two men. Much later, the caller admitted he had falsely reported that the robbers were armed.

Responding to the dispatch broadcast, the officers proceeded in their squad car to the area of the alleged crime. As they approached the intersection, Kendrec McDade, a 19-year-old African-American male, began running. The officers pursued McDade about two blocks. Each officer eventually fired four shots at McDade, who was killed. It was later discovered that McDade was not armed.

The shooting spawned multiple investigations both in and outside of the Department, a citizen’s complaint, and a federal lawsuit by McDade’s mother, Anya Slaughter, against the officers and the City. The Los Angeles District Attorney conducted a criminal investigation which concluded with a finding that, due to the false report, the officers reasonably had believed McDade was armed. No criminal charges were filed against the officers. The Federal Bureau of Investigation conducted a civil rights investigation of the shooting, which ultimately was closed without the filing of criminal charges or a civil complaint. Slaughter’s federal action against the City and the officers was settled.

The Department’s investigation also concluded with a determination that the officers acted within Departmental policy because they reasonably had believed McDade was armed and assaulting an officer, and shot him in self-defense and in defense of one another. The City then retained an independent consultant, the Office of Independent Review Group (OIR), to review Departmental policies and how the Department investigated criminal incidents. When OIR’s 70-page report was completed in August 2014, a number of requests for the report were made under California’s Public Records Act. Eventually, the California Court of Appeals had to decide whether OIR’s report was a disclosable public record.

The Court started by observing that “the law governing protection for the privacy of police officers in California is found in a series of statutes commonly referred to as ‘Pitchess statutes.’ In enacting the Pitchess statutes, the Legislature made policy choices, deciding which information should be public and which information should be exempt from disclosure, and drew the line carefully, with due concern for the competing interests. The Pitchess statutes provide for two categories of confidential records: (1) personnel records, and (2) records of citizen complaints about individual officers, and reports or findings relating to investigation of such complaints.

“It is now established that disciplinary records of peace officers are protected by privilege under the Pitchess statutes no matter where those records are generated. Information which is not itself a personnel record is nevertheless protected if it was obtained from a peace officer’s personnel record. Only records generated in connection with an administrative appraisal or discipline qualify as Pitchess protected personnel records; records generated as part of an internal or administrative investigation of the officer generally are confidential, but other records about an incident are not.”

Turning to the OIS Report, the Court found that “portions of the Report culled from personnel information or officers’ statements made in the course of the PPD’s administrative investigation of the McDade shooting are protected by the Pitchess statutes. However, other portions of the Report, including the criminal investigation, which do not constitute or relate to employee appraisal, are not. Where, as here, nonexempt materials are not inextricably intertwined with exempt materials and are reasonably separable, segregation is required.

“No Pitchess protections statutes attach to material in the Report derived primarily from non-confidential records not intended to be part of the officers’ personnel matters or to be used in connection with officer advancement, appraisal or disciplinary proceedings. A number of redactions proposed by the City and largely adopted by the trial court protected not privileged information relating to the officers, but information or findings critiquing conduct by or the policies and practice of the PPD itself. Any redaction of such material subverts the public’s right to be kept fully informed of the activities of its peace officers in order to maintain trust in its police department.”

The Court returned the case to the trial court “with directions to conduct the additional proceedings it deems appropriate and issue a new or modified judgment ordering additional redactions in accordance with this opinion.”

Pasadena Police Officers Association v. Superior Court, 2015 WL 5281818 (Cal. App. 2015).