California Attorney General issues opinion regarding confidentiality of officers involved in critical incidents
-- Officer's identity must be disclosed unless not in the public interest

Source: Larry Friedman, Sr. Legal Counsel
Date: 6/5/2008

Responding to a request from Riverside District Attorney Rod Pacheco, the Attorney General’s office opined that the name of an officer involved in a critical incident must be disclosed by the law enforcement agency except in certain circumstances. The primary exception is when “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Government Code section 6255(a))

The opinion lists two such circumstances; where the officer is operating undercover and where the possibility exists of gang retribution against the officer. The Attorney General goes on to state that the party urging non disclosure bears the burden of proof. A critical incident usually involves a shooting (whether lethal or not) or a death in custody. These are situations where CSLEA members would be assigned an experienced attorney by our Legal Defense Fund. You can be sure that your attorney will make every effort to protect your rights to confidentiality.

How did the Attorney General come to his conclusion? He began by pointing out the tension between the Public Records Act and those Penal and Evidence Code sections that provide for the confidentiality of law enforcement records. Moreover, the Public Record Act itself is a morass containing exceptions within exceptions. He suggests a balancing between the interests of disclosure (public’s right to know) and non disclosure (individual’s right to privacy).

He then analyzes two leading cases on this subject. In New York Times v. Superior Court (1997) 52 Cal. App. 4th 97 the Ventura based appellate court ruled that a sheriff must provide the name of a deputy involved in an on duty lethal shooting of a suspect. To the extent that the New York Times court said that a peace officer’s name is never exempt from disclosure it was corrected by the California Supreme Court in Copley Press Inc. v. Superior Court (2006) 39 Cal. 4th 1272. That decision narrowed the scope of disclosure by keeping the name of the officer confidential when it is sought in conjunction with an internal investigation or a disciplinary proceeding.

Tying this together, the Attorney General looked to the Public Records Act and determined that the information containing the name of the officer involved in the critical incident is a public record. He next explored the exceptions and concluded that the perceived harm to the peace officer by the release of his name is generally outweighed by the public’s interest in disclosure, except in those instances, mentioned above.