Pasadena Police Officers Ass'n v. Superior Court of L.A. Cnty.

240 Cal.App.4th 268

192 Cal.Rptr.3d 486

PASADENA POLICE OFFICERS ASSOCIATION et al., Petitioners

v. SUPERIOR COURT of Los Angeles County, Respondent;City of Pasadena et al., Real Parties in Interest.

B260332

Court of Appeal, Second District, Division 1, California.

Filed September 10, 2015

Green & Shinee and Richard A. Shinee for Petitioners Pasadena Police Officers Association and Officers Matthew Griffin and Jeffrey Newlen.

No appearance for Respondent.

Michele Beal Bagneris, City Attorney, and Javan N. Rad, Chief Assistant City Attorney, for Real Party in Interest City of Pasadena.

Gronemeier & Associates, Dale L. Gronemeier and Elbie J. Hickambottom, Jr., South Pasadena, for Real Parties in Interest Anya Slaughter, Pasadena Chapter of the National Association for the Advancement of Colored People, Interdenominational Ministerial Alliance of Greater Pasadena, ACT and Kristin Ockershauser.

Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox, Jonathan L. Segal, Los Angeles; Los Angeles Times Communications, Jeff Glasser ; Jassy Vick Carolan, Jean-Paul Jassy and Kevin L. Vick, Los Angeles, for Real Party in Interest Los Angeles Times Communications.

Opinion

JOHNSON, J.

In the wake of a March 2012 shooting death of unarmed teenager Kendrec McDade (McDade) by two members of the Pasadena Police Department (PPD), real party in interest City of Pasadena (City) retained an independent consultant, the Office of Independent Review Group (OIR), to review departmental policies. After OIR completed its review, real party in interest and intervener the Los Angeles Times (Times) and real parties in interest and interveners Anya Slaughter, Kris Ockershauser, the Pasadena Branch of the National Association for the Advancement of Colored People, ACT, the Interdenominational Ministerial Alliance of Greater Pasadena (collectively, the Slaughter parties or, when mentioned in conjunction with the Times, Interveners), made requests under the California Public Records Act (PRA or the Act) (Gov.Code,¹ § 6250 et seq. ; Cal. Const., art. I, § 3, subd. (b)) seeking disclosure of OIR's August 2014 “Report to the City of Pasadena Concerning the Officer-Involved Shooting of ... McDade” (Report).

Petitioners the Pasadena Police Officers Association (PPOA) and Pasadena Police Officers Matthew Griffin and Jeffrey Newlen (the officers or, in conjunction with the PPOA, collectively, petitioners) initiated this reverse PRA action, seeking to enjoin disclosure of the Report. After initially issuing a temporary restraining order, the trial court eventually permitted the Times and Slaughter parties to intervene, denied the injunction, and ordered the Report publically released. However, the trial court found certain portions of the Report constituted confidential peace officer personnel records, exempt from disclosure pursuant to section 6254, subdivision (k), and ordered those portions redacted. The court stayed the effect of its judgment to permit parties to seek extraordinary writ relief. (§ 6259, subd. (c).)

We deny the petition by which PPOA and the officers seek to preclude disclosure of the entire Report or, in the alternative, the production of a more heavily redacted Report. The trial court correctly concluded that the Report itself is a public document. The court also correctly determined that portions of the Report contain confidential personnel information exempt from disclosure under the PRA. The trial court's redactions, however, went too far. Our review of the sealed materials in the record reveals that some of the material the court ordered redacted from the Report is unrelated to personnel files of individual officers. The inappropriately redacted material includes analyses of the PPD's administrative investigation and departmental policies, descriptions of the PPD's responsiveness (or the absence thereof), and recommendations by the OIR, none of which is privileged under the PRA.² Accordingly, we deny the petition and remand the matter to the superior court with directions to conduct new proceedings, and issue a new or modified judgment ordering appropriate redactions to the Report in accordance with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On March 24, 2012, just after 11:00 p.m., the officers 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, McDade, a 19-year-old African-American male, began running. The officers pursued McDade about two blocks. Officer Griffin fired four shots at McDade from inside the patrol car. Officer Newlen, having previously exited the squad car to give chase, fired four more shots, killing McDade. It was later discovered that McDade was not armed.

The shooting spawned multiple investigations, a citizen's complaint (filed on Mar. 25, 2012), 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 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 PPD conducted its own investigations. Two were conducted immediately after the McDade shooting. The purpose of the first investigation, undertaken by the PPD's Criminal investigations division (CID), was to determine whether the officers committed a crime. Different PPD investigators conducted a separate internal affairs (IA) investigation. The PPD investigated the March 25, 2012 citizen complaint in the course of its CID and IA investigations. In March 2013, the PPD conducted a third investigation: an administrative review based on evidence collected during the CID and IA investigations. That administrative review concluded with a determination that the officers acted within departmental policy because they reasonably believed McDade was armed and assaulting an officer, and shot him in self-defense and in defense of one another.

The officers were interrogated and gave voluntary statements to investigators in the course of the CID investigation. Those statements were considered as part of the district attorney's analysis in determining whether to file criminal charges. The officers were deposed in Slaughter's federal civil rights action against them. At their depositions the officers were questioned about the shooting and the subsequent investigations, and each used the statement he had given during the CID investigation to refresh his recollection.³ The officers did not provide additional statements in connection with either the IA investigation or the PPD's administrative review.

On an unspecified date soon after the shooting in March 2012 the City retained OIR as a private consultant to conduct an independent review of the McDade shooting. According to the declaration submitted in this action by PPD Deputy Chief Darryl Qualls, “[t]he purpose of the OIR Group's review, memorialized in the OIR Report, was to serve as a review of the incident for the benefit of the department and to evaluate how the [PPD] does business in the areas reviewed.” Deputy Chief Qualls also declared that the PPD would not use OIR's Report “to (1) affect the officers' advancement; (2) conduct an appraisal of the officers; or (3) consider discipline of the officers.” After reviewing the Report and other evidence, the trial court found the City retained OIR in order to evaluate the thoroughness and objectivity of the PPD's investigations of the McDade shooting, the adequacy of officer training, what lessons had been learned from the incident and, based on OIR's review and conclusions, to recommend institutional reforms.

OIR's 70-page Report was completed in August 2014. Interveners submitted requests to the City for the Report on the McDade shooting, pursuant to the PRA. On September 3, 2014, while the PRA requests remained pending, PPOA and the officers initiated the underlying reverse PRA action, and sought and obtained a temporary restraining order (TRO) preventing release of the Report. On September 9, 2014, the trial court vacated the TRO on the ground the matter was not yet ripe, and ordered the City to respond to the Interveners' PRA requests and to give petitioners notice if it intended to disclose the Report. Interveners submitted new or renewed PRA requests for the Report to the City on September 9, 2014.

On September 11, 2014, the City announced that unless the court directed otherwise, it planned to release a redacted copy of the Report the following week. The City stated it intended to redact portions of the Report containing confidential police officer personnel records.⁴

On September 16, 2014, petitioners filed an ex parte application seeking to enjoin the City from releasing any portion of the Report. The same day, the Times and others filed motions seeking to intervene in this action and writ petitions seeking to compel release of the Report without redactions. The trial court granted leave to intervene.

On October 16, 2014, after extensive briefing and oral argument, the trial court issued a 16-page “Decision on Application for Injunctive Relief-Partly Granted.” The court acknowledged the parties' competing positions regarding disclosure of the Report: Consistent with their positions here, Interveners argued the Report is a public record and should be disclosed in its entirety. Petitioners asserted that the Report is a confidential personnel record entirely exempt from disclosure under the Pitchess⁵ statutes (Pen.Code, §§ 832.5, 832.7, 83...