In May of 2012, following the release of the Kroll Report and the Cruz Reynoso Task Force report with the names of police officers redacted, the Los Angeles Times and Sacramento Bee argued that the public and press interests were not represented in the agreement to suppress the names of officers who were involved.
In a case that is likely destined for the state’s Supreme Court, the First Appellate District, Division Four, ruled in favor of the newspapers and ordered the release of the names of 12 officers named in the two reports commissioned by the University of California Regents.
“The reports reviewed the facts leading up to the pepper spray incident, made conclusions regarding responsibility for the incident, and concluded with policy recommendations to ensure that such a polarizing incident did not reoccur,” the court notes. “However, the names of more than a dozen UC police officers who planned, participated in, and/or witnessed the pepper spray incident were redacted from the reports.”
The court writes, “We agree with the trial court that the identities of the officers named in the reports must be disclosed because this information does not fall within any category of exempted information under section 832.7, subdivision (a). “
On November 18, 2011, UC Davis Police Lt. John Pike was videotaped dousing pepper spray in a methodical fashion, on what appeared to be a row of nonviolent and seated protestors at close range after their failure to follow orders to disburse.
The incident led to national and worldwide news coverage and two publicly released reports commissioned by UC President Mark Yudof, one produced by Kroll – which is run by former Los Angeles Police Chief William Bratton. He also appointed former California Supreme Court Justice Cruz Reynoso to chair a task force (the Reynoso Task Force) to examine the pepper-spray incident.
The result of these investigations led to the retirement of Police Chief Annette Spicuzza, the firing of Lt. Pike and the firing of a second officer whom the Vanguard identified as Officer Alexander Lee.
The identity of Mr. Lee and others has been redacted from public releases of the report.
“The redaction of the officers’ names in the reports was the result of the first round of litigation,” the court notes.
The union and Lt. Pike filed to stop the release of the reports in their entirety, claiming “[t]his relief is necessary to stop the unlawful release of confidential peace officer personnel information” as protected by section 832.7, subdivision (a).
The officers were ordered by the UC Davis acting chief of police “to appear for an interview with Kroll and to cooperate with their [sic] investigation . . . .” However, the officers were assured that UC “will not use any information that you provide to Kroll against you in any disciplinary proceeding.”
Additionally, the court notes, “Kroll did not interview police officers who were the target of any citizen complaints, or the subject of any internal affairs investigations with respect to their role in the pepper spray incident.” The Kroll report states: “As personnel investigations are deemed confidential under California law, this report does not include information obtained from any interview of any officer whose use of force is being reviewed or who has been deemed a potential subject of discipline; only witness officers have been interviewed.”
The regents eventually agreed to a settlement with FUPOA (Federated University Police Officers Association) to end that litigation. The settlement allowed for the release of the reports, but required that the names and ranks of the police officers other than Lt. Pike and Chief Spicuzza be redacted, citing Government Code sections 3300-3303, referred to as the Public Safety Officers Procedural Bill of Rights.
On May 29, this case was filed and the court concluded “the names of officers were not made confidential by section 832.7, subdivision (a), because the names were not records relating to complaints or investigations of complaints concerning an individual officer’s performance of duties.”
The court “[was] not persuaded that either the [L]egislature or the California Supreme Court intended Penal Code section 832.7 to apply whenever public entities conducted broad policy reviews that involve an examination of law enforcement policies, procedures, or actions and to preclude all public entities from disclosing the results of those reviews if the review touches–however tangentially–on the conduct of individual police officers.”
The court rejects arguments from the union that the “officers faced a risk of harm if their names were disclosed, and that the alleged harm outweighed the benefit of disclosure,” based in part on the fact that “some of the officers’ names had been discovered (not as a result of any action by the parties to this proceeding), and there was no evidence that they had been subject to intimidation or harassment.”
The appellate court argues, “Disclosing the names of the officers who gave their own eyewitness accounts of the pepper spray incident does not fit within section 832.8, subdivision (e)’s prohibition against disclosing information regarding, ‘[c]omplaints or investigations of complaints,’ nor do these third party accounts pertain ‘to the manner in which he or she performed his or her duties.’ “
They note, “While the statute clearly exempts information about a complaint or investigation of a complaint about an individual officer‘s conduct, the statute does not exempt information relating to the identities and conduct of the police in general during a high-profile incident that is under scrutiny and review for the purpose of undertaking a system-wide review of police procedures.”
“The newspapers are not asking for the names of officers in connection with any disciplinary appeal or investigations of civilian complaints, nor does disclosure of the names of the officers indentified by pseudonyms in the reports reveal any information about disciplinary proceedings or civilian complaint investigations taken against any police officers in connection with the pepper spray incident,” they add.
“This is not a confidential personnel matter protected by the Pitchess statutes,” the court rules, quoting the Supreme Court which stated, “[t]he public has a legitimate interest not only in the conduct of individual officers, but also in how . . . local law enforcement agencies conduct the public’s business.”
—David M. Greenwald reporting