Sacramento filed a claim of confidentiality, stating the records sought

could not be provided without an authorization from Defendant or court order. The County did, however, submit the report to the Court under seal for ruling on the issue.

Penal Code section 1203.05 provides, in relevant part, that a probation report “filed with the court, including any report arising out of a previous arrest who is the subject of the report, may be inspected or copied only as follows:

(a) By any person, from the date judgment is pronounced or probation granted or, in the case of a report arising out of a previous arrest, from the date the subsequent accusatory pleading is filed, to and including 60 days from the date judgment is pronounced or probation is granted, whichever is earlier.

(b) By any person, at any time, by order of the court, upon filing a petition therefor by the person.
(c) By the general public, if the court upon its own motion orders that a report or reports shall be open or that the contents of the report or reports shall be disclosed.”

“Although the statute makes the entire probation report conditionally confidential after the 60-day period, regardless of whether it contains detailed personal information about the defendant, the Legislature’s intent was more narrow: to restrict access only to personal information and restore some privacy to the defendant. Its intent was not to restrict access to other, nonpersonal information in a report. Moreover, by permitting open access for 60 days, the Legislature also intended to reaffirm the state’s basic policy of openness. Given the intent to restore privacy, we conclude that section
1203.05, subdivision (b) gives trial courts discretion over whether to permit access to personal information in a report. Moreover, given the reaffirmation of the policy of open access and the constitutional implications discussed above, we further conclude that the court’s discretion does not extend to nonpersonal information and, therefore, it must permit access to that information.” (People v. Connor (2004) 15 Cal.App.4th 669, 695-696 [emphasis in original].) To that end, nonpersonal information consists of the factual summary of an offense and the evaluations, analyses, calculations, and recommendations of the probation officer. (Id. at 681.)

“To effectuate the Legislature’s intent and the purpose of the statute, therefore, we find that the statute contemplates a procedure whereby the court may hold a hearing to determine whether the probation report contains personal information. It then balances the defendant’s interest in keeping this information confidential against any reasonable potential benefit to be gained by disclosing it and exercises discretion concerning whether to restrict or permit access. If it decides that restriction is appropriate, then the court may redact personal information from the report. Thereafter, the court should release the redacted report or the whole report if nothing is redacted.” (Id. at 696.)

“Concerning the hearing, we note that the court’s determination may entail discussing the personal information that is potentially the object of redaction. Therefore, the court should hold the hearing on a petition in camera and outside the presence of the petitioner. The court must, however, create a record of the in camera hearing and make findings adequate to permit appellate review of its ruling.” (Id. at 697.)

“In determining whether a probation report contains personal information, the court should give the defendant an opportunity to identify the information he or she wants

redacted and explain why it should be redacted. The court should also consider whether the information identified by the defendant is available from other public documents, including the transcript of the sentencing hearing, the judgment, and any other documents available to the public. Then, in balancing the defendant’s interest in confidentiality against any potential benefit from public access, the court may consider other relevant factors, including the age of the probation report; the potential impact disclosure may have on the defendant, his or her rehabilitation, and his or her family; the degree to which the information would contribute to public understanding and the sentencing imposed; and the reasons why access is being sought.” (Id. at 698.)

The Connor decision noted that the procedure described above mirrors the procedure used in other contexts, such as a Pitchess motion to access law enforcement records. (Id.)

To the extent that Defendant argues that Connor does not allow access to non-personal information as a matter of right, that is incorrect. (Id.at 696.) As discussed above, Penal Code section 1203.05(b) gives trial courts discretion over whether to permit access to personal information but the discretion “does not extend to nonpersonal information and, therefore, it must permit access to that information.” (Id.)

Here, Defendant opposes the motion on the basis that he initially indicated to Plaintiff’s counsel that he would not object to production of the probation report but thereafter learned that personal information may be in the report. He thereby requests an in-camera hearing pursuant to Connor to discuss any personal information within the report and potential redaction.

The Court notes that Defendant makes various points about Plaintiff no longer having unfettered access to his probation report as the 60-day timeline set forth in section 1203.05(a) has passed. However,Plaintiff is not arguing that she gets unfettered access to the report under subsection (a), and instead has filed the petition pursuant to subdivision subsection (b), recognizing the burden is on Defendant to seek an in-camera hearing to identify personal information, consistent with Connor. Plaintiff argues that, to the extent that the probation report does contain personal information, that information may shed light on Defendant’s awareness of the consequences of his conduct in past DUI charges which would be highly relevant to whether Defendant acted with a conscious or willful disregard of the rights of others with respect to the conduct at issue in the instant lawsuit. While the Court would be inclined to agree with this proposition in the abstract, obviously having yet to review the probation report, this Court has no idea what, if any, personal information is contained therein such that it can exercise its discretion as to whether to redact personal information or allow release of the entire report.

On reply, Plaintiff states that the information sought from the probation report relates to whether Defendant acted with malice. Additionally, Plaintiff contends that the information in the report is relevant to “issues against [Defendant] Short and the other defendants [Defendant Short’s mother and his employer], which include the following:

(a) To what extent did JOSEPH SHORT have a history of drug and alcohol abuse, to what extent was he counseled on the consequences of his behavior, and what opportunities were [sic] he provided to avoid that behavior in the future;

(b) To what extent did the PARAGARY’S defendants know, or should they have known, of a history of drug and alcohol abuse, DUI, license suspension, rehabilitation, or mental or emotional illness and stability, which would naturally include information pertaining to past employment;

(c) To what extent did the owner of the vehicle, defendant CUMMINGS, know, or should she have known, known, or should they have known, [sic] of a history of drug and alcohol abuse, DUI, license suspension, rehabilitation, or mental or emotional illness, which would naturally include information pertaining to family history or involvement.”

At this point, the Court can merely note that, at a minimum, Plaintiff will be entitled to nonpersonal information in the report. The burden now rests on Defendant to, at an in-camera hearing, identify personal information that he would like redacted. If such information is identified, the Court will then balance the interests as set forth above and determine whether a redacted report or the entire report will be disclosed.

The Court is, of course, required to conduct an in-camera review of the records before any record can be disclosed. The parties shall meet and confer to determine several potential dates for the in-camera review to take place after February 1, 2019, and then contact Ellen Brown, the clerk for Department 53, to determine a date permissible with the Court’s schedule.

While Connor was not explicit on this point, given its statement that an in-camera hearing pursuant to Penal Code section 1203.05 shall mirror the procedure governing Pitchess motions, the custodian of the records at the Sacramento County Probation Department is required to bring a copy of the November 15, 2016 probation report and if desired, may bring independent counsel. As seen from Connor, Defendant is permitted to be at the in-camera hearing in order to identify personal information in the probation report that he wants redacted. Plaintiff, however, is not permitted to be present at the in-camera hearing. (Id. at 697.)

Again, the parties shall meet and confer regarding potential date(s) for the in-camera review to take place on a date no earlier than February 1, 2019, and contact the clerk for Department 53 to schedule.

Plaintiff shall prepare a proposed order consistent with this ruling pursuant to CRC 3.1312.