Defendant’s Motion for Production of Peace Officer Personnel Records is Granted in Part. The Court will conduct an in camera inspection of the subject records in order to determine which records must be produced. Plaintiffs are ordered to have the subject records available at the time of the hearing for in camera inspection.

1. Background Facts
Plaintiffs, Mark de la Torre, Francisco Rubio, and Kurt Logal filed this action against Defendant, Sheila Harriet Hartman for damages arising out of an automobile accident. Notably, Plaintiffs are all police officers. At this time, Defendant moves to discover Plaintiffs’ personnel records, or parts thereof, pursuant to a “Pitchess” motion.

2. Law Regarding Pitchess Motions
In Pitchess, the California Supreme Court held that a criminal defendant is entitled to discovery of an officer’s personnel records if the information contained in the records is relevant to his ability to defend against the charge. Later enacted legislation implementing the court’s rule permitting discovery (Pen.Code, §§ 832.5, 832.7, 832.8; Evid.Code, §§ 1043-1047) balanced the accused’s need for disclosure of relevant information against a law enforcement officer’s legitimate expectation of privacy in his or her personnel records. The Legislature concluded that a defendant, by written motion, may obtain information contained in a police officer’s personnel records if it is material to the facts of the case. (Evid.Code, § 1043, subd. (b)(3).) When presented with such a motion, the trial court rules as to whether there is good cause for disclosure. (Evid.Code, §§ 1043, 1045.) If the court orders disclosure, the custodian of the officer’s records brings to court all the potentially relevant personnel records and, in camera, the trial court determines whether any of the records are to be disclosed to the defense. During the in camera hearing, neither the defense nor the prosecution is present. (People v. Mooc (2001) 26 Cal.4th 1216,1226-1227.)

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, known in the criminal context as a Pitchess 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.” (Evid.Code, § 1043, subd. (b)(3); see generally, Evid.Code, §§ 1043, 1045; Pen.Code, §§ 832.5, 832.7, 832.8; People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The affidavit setting forth good cause “may be on information and belief and need not be based on personal knowledge [citation], but the information sought must be requested with sufficient specificity to preclude the possibility of a defendant’s simply casting about for any helpful information [citation].” (Mooc, at p. 1226.) If the moving party fulfills these requirements, then the court examines the records in camera. (Ibid.) This process balances the conflicting interests of the moving party’s right to a fair trial and the officer’s interest in privacy. (Id. at p. 1227.) An officer thus has a conditional privilege in his or her personnel records. (Fagan v. Superior Court (2003) 111 Cal.App.4th 607, 614.)

The mere fact that a document is included in a police officer’s personnel file does not, by itself, preclude discovery. To be protected as a “personnel record,” a complaint or investigation of a complaint “must both concern an event that involved the officer as a participant or witness and pertain to the officer’s performance of his or her duties.” Zanone v. City of Whittier (2008) 162 CA4th 174, 189.

Penal Code §832.8 defines “personnel records” to include:
As used in Section 832.7, “personnel records” means any file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following:
(a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information.
(b) Medical history.
(c) Election of employee benefits.
(d) Employee advancement, appraisal, or discipline.
(e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.
(f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.

The names, dates of employment, employing agencies and salaries of peace officers do not constitute “peace officer personnel records” under Pen.C. §§ 832.7 and 832.8. Such information is subject to disclosure under the California Public Records Act and is also therefore subject to discovery. See Commission on Peace Officer Standards & Training v. Sup.Ct. (2007) 42 C4th 278, 293–294,; International Federation of Prof. & Tech. Engineers, Local 21, AFL–CIO v. Sup.Ct. (2007) 42 C4th 319, 346.

In Zanone, the Court held:
“Penal Code section 832.8 defines peace officer personnel records as “any file maintained under that individual’s name by his or her employing agency and containing records relating to any of” a list of enumerated categories of information, including personal data, medical history and employee discipline. (Pen. Code, § 832.8, subds. (a), (b), (d).) 15 Last year, in Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 293 [64 Cal. Rptr. 3d 661, 165 P.3d 462] (POST) the Supreme Court held only information falling into one of Penal Code section 832.8’s specifically listed categories is a “personnel record” subject to the Pitchess procedure; other information that may be physically located in the personnel file is not a “personnel record” for Pitchess purposes: “To extend the statute’s protection to information not included within any of the enumerated categories merely because that information is contained in a file that also includes the type of confidential information specified in the statute would serve no legitimate purpose and would lead to arbitrary results. Therefore, we conclude that peace officer personnel records include only the types of information enumerated in [Penal Code] section 832.8.” (POST, at p. 293.) Accordingly, the issue is whether the Singer memorandum concerning the Rollins racial discrimination complaint falls within one of the specific categories of information listed in Penal Code section 832.8’s definition.”

3. Analysis
As an initial note, Plaintiffs argue at length that only certain information can be produced, such as names and contact info for witnesses to complaints about Plaintiff. The cases to which Plaintiffs cite concern §832.8(e), which concerns discipline of a peace officer. Prior discipline records of Plaintiffs are not at issue here, and therefore the case law is not relevant to the Court’s analysis of the issues before it.

Defendant herein seeks production of Plaintiffs’ entire personnel files. Defendant fails to show good cause for production of the entire files, and therefore the motion for production of the entire files is denied. In the alternative, Defendant seeks production of twenty categories of records, each of which will be discussed in turn below.

1. Any and all documents evidencing payroll and salary information for plaintiffs from 5 years before the subject accident to present – per Zanone, above, this information is not subject to the Pitchess motion procedure. The Pitchess motion is therefore denied without prejudice to Defendant’s right to simply demand production of these records using the discovery process.

2. Any and all documents evidencing the length of time the plaintiffs have worked for the LAPD – again, per Zanone, above, this information is not protected.

3. Any and all documents evidencing plaintiffs’ educational and employment history – this information is protected by §832.8(a). Defendant argues information relating to Plaintiffs’ educational and employment history is relevant because Plaintiff, Rubio served in the military prior to working for LAPD and sustained injuries that may be relevant to this action. Defendant fails entirely to show how educational information is relevant, so the request for educational information is denied. Plaintiff also fails to show good cause for production of documents evidencing the mere fact that one of the plaintiffs was employed elsewhere prior to service with the LAPD. The motion regarding this category is therefore denied.

4. Any and all documents evidencing the plaintiffs’ education and training as police officers – this information is not protected, and therefore Defendant may seek this information through discovery.

5. Any and all documents evidencing plaintiffs’ performance reviews, internal investigations, and disciplinary records. – this information is protected by §832.8(d). Defendant argues these records are necessary because Plaintiffs are claiming their careers have been affected by this accident. Defendant contends it is possible Plaintiffs were subject to discipline and their jobs were in jeopardy regardless of the accident. Defendant provides no evidence that this is likely true. This is the type of “fishing expedition” that is expressly prohibited in the Pitchess context. The motion to compel production of these records is therefore denied.

6. Any and all testing, promotional, transfer, and job assignment records – these documents are protected by §832.8(d). Again, Defendant did not meet the burden to show good cause for production of these highly sensitive documents.

7. Any and all documents evidencing the plaintiffs’ missed time from work from 5 years before the subject accident to present – as an initial note, it is unclear whether this category is protected or not. It arguably goes to 832.8(c), election of employee benefits, or 832.8(f), other private information. If Defendant believes the information is not protected, Defendant may pursue the documents via discovery, and the parties will be required to brief whether this is a “personnel record” if and when they are unable to resolve the issue informally. Assuming the records are subject to a Pitchess motion, Defendant argues these records are necessary to determine whether Plaintiffs have missed time from work for reasons other than the accident. Plaintiffs have the burden, at trial, to establish that any time off work they are claiming as a result of the accident was due to the accident. This does not mean, however, that Defendant has the right to know every time off request Plaintiffs have made in the past five years or why it was made. Defendant failed to show good cause for this request.

8. Any and all documents evidencing workers’ compensation benefits paid to the plaintiffs as a result of their alleged injuries from the subject accident – it is again not clear whether these documents are “personnel records” in the first instance. In the event they are, it is clear that they must be produced, as they are highly relevant to this action. Plaintiffs’ opposition states no reason why these records need not be produced.

9. Any and all documents evidencing any workers’ compensation claims made by the plaintiff prior to or subsequent to the subject accident – same analysis as ¶8, above.

10. Any and all medical and billing records related to the plaintiffs’ alleged injuries from the subject accident – again, this is highly relevant and must be produced.

11. Any and all documents evidencing prior or subsequent complaints to the same body parts alleged to be injured in the subject accident – again, highly relevant and must be produced.

12. Any and all photographs or videotape of the plaintiffs’ alleged injuries and/or medical treatment arising from the subject accident – again, highly relevant and must be produced.

13. Any and all photographs or videotape of the accident scene – not clear whether this is protected, but highly relevant and must be produced regardless.

14. Any and all documents evidencing the property damage arising from the subject accident – again, not clear if this is protected, but highly relevant and must be produced.

15. Any and all documents evidencing the plaintiffs’ involvement in any motor vehicle accidents prior to or subsequent to the subject accident – again, not clear whether this is protected, but highly relevant and must be produced.

16. Any and all documents evidencing the plaintiffs’ violation of any Vehicle Code section – this request is vague and ambiguous. Again, it is not clear that this is a “personnel record” in the first instance. If it is not a “personnel record,” Defendant may pursue discovery via normal channels. If it is a “personnel record,” Defendant failed to show good cause, as the request as phrased appears to include any and all past vehicle code violations, and prior vehicle code violations are not relevant to this action.

17. Any and all documents evidencing the plaintiffs’ violation of any LAPD protocol or procedure relating to vehicle operation, including, but not limited to, positioning or parking the vehicle and activation of emergency equipment, such as lights and siren – same analysis as category 16, above.

18. Any and all documents evidencing the plaintiffs’ violation of any LAPD protocol or procedure for responding to a call – same analysis as category 16, above.

19. Any and all statements taken from the plaintiffs and any witnesses related to the subject accident – clearly relevant and must be produced.

20. Any notations, memoranda, or other documents referencing the subject accident – clearly relevant and must be produced.

In sum, many of the records sought are not personnel records as defined by §832.8. Defendant is free to demand production of those records without a Pitchess motion. If the parties are unable to agree on whether a given record is a “personnel record” as defined by §832.8 or not, the parties are ordered to meet and confer at length on that issue prior to bringing it before the Court.

Many of the records at issue are personnel records as defined by §832.8. If the Court, above, found that Defendant failed to meet her burden to show good cause for production of those records, then nothing further will be done at the hearing in connection with those categories. If, however, the Court found that Defendant met her burden to show good cause for production of the documents at issue, the Court will review the records in camera at the time of the hearing and will determine which of the records must be produced.

Dated this 25th day of January, 2014

Hon. Elia Weinbach
Judge of the Superior Court