Judge Orders UC to Turn Over Names of Pepper Spray Officers

Vanguard Plays Huge Role in Order, Stayed Until Late July Pending Appeal

On Tuesday, Alameda County Superior Court Judge Evelio Grillo handed the LA Times and Sacramento Bee, as well as advocates for transparency and open government, a major victory when the judge ordered the University of California to turn over an unredacted copy of the Kroll and Reynoso Reports on the pepper spray incident, with the names of all involved police officers.

There is a “strong public policy supporting transparency in government,” Judge Grillo wrote in his decision adding, “[t]he public’s interest in the … conduct of peace officers is substantial” because “[p]eace officers ‘hold one of the most powerful positions in our society; our dependence on them is high and the potential for abuse of power is far from insignificant.’ “

“In this action today, the court provided transparency for what was missing from the earlier Pike Litigation,” Thomas Burke, one of the attorneys for the newspapers told the Vanguard on Tuesday.  “The bottom line is that the Reynoso Task Force Report will be publicly released without any censorship.”

Judge Grillo, the same judge who ruled on the earlier case,  Pike, in which the attorney for the police officers’ union at the last moment attempted to block the release of the Kroll and Reynoso Reports on the grounds of the Police Officer’s Bill of Rights.

In this case, the judge noted that there are different legal issues since the Pike matter was decided under the California Constitution and the Police Officers Procedural Bill of Rights Act, and this case concerns the Public Records Act.

“[Judge Grillo] understood why this case was actually quite different from his earlier case two months ago,” said Linda Lye, staff attorney for the ACLU, who filed an amicus brief in this matter.  “One of the key matters that the court has to consider is the privacy and interests of the police officers, whether there is any risk of harm or harassment, and the public interest in having access to this information.”

“It will be as Reynoso and the Task Force had intended all along, which was have it be public,” Mr. Burke told the Vanguard.  “It’s not a good thing to be issuing a report that was supposed to be unvarnished to have to release the report with things blacked out and until today’s ruling that’s the way it looked.”

“The court really understood the importance of transparency and accountability and there was just no evidence in this case that there was an ongoing risk of any harm,” Ms. Lye added.

The judge also stayed the order and final judgment until July 27, 2012 in order to permit attorneys for the police officer’s union to file a petition in appeal.

The Ruling

As indicated, Judge Grillo noted that there are different legal issues here, since the Pike matter was decided under the California Constitution and the Police Officers Procedural Bill of Rights Act and this case concerns the Public Records Act.

“The FUPOA has not demonstrated that the exemption in Gov. Code 6265(k), incorporating Penal Code section 832.7, prevents the Regents from disclosing the unredacted Report,” the judge ruled.

In this case, Judge Grillo ruled that attorneys for the police officer’s union have failed to demonstrate that the report is “peace officer personnel records” and therefore denied that the Police Officer’s Bill of Rights applies in this case. Moreover, they have “not demonstrated that the Report includes information obtained from peace officer personnel records. There is no indication that Kroll obtained any documents or information from peace officer personnel files.”

He added, “The legislature adopted Penal Code 832.7 to serve a specific purpose. The Supreme Court in Pitchess addressed the need to limit requests for the peace officers employment information in criminal or civil proceedings, and the legislature codified Pitchess in Penal Code 832.7 and Evidence Code 1043.”

Under the Public Records Act, in order to establish an exemption, the union must be able to establish that either they have “a legally protected privacy interest,” “a reasonable expectation of privacy in the circumstances” or “conduct by defendant constituting a serious invasion of privacy.”

He writes, “As police officers paid by the public and authorized by the public to exercise authority over individual members of the public, the FUPOA cannot reasonably expect that information about the actions of police officers will be shielded from public scrutiny other than as provided by statute.”

He rules that they did not have a reasonable expectation of privacy as the officers “were operating in a public area while displaying their names on badges and were observed by many demonstrators and onlookers.”  As such, “The members of the FUPOA can have little or no expectation of privacy regarding UCDPD’s activities during the Incident.”

“In Pike, the FUPOA presented substantial evidence that its members were likely to suffer significant harm if their names and identifying information were erroneously disclosed before the case can be adjudicated on its merits,” he wrote.  “Lt. Pike presented a declaration detailing harassment and threats to him after he was identified as an officer who was involved in the Incident.”

The judge noted, “Based on this evidence, the court made a preliminary conclusion that the potential harm to other officers from disclosing their participation in the Incident was far from speculative.”

However, attorneys for the LA Times and Sacramento Bee presented evidence that the names of officers other than Lt. Pike who were involved in the incident have already been disclosed (through the reporting of the Vanguard).

The judge writes, “There is no evidence that those officers have been subject to intimidation or harassment since the disclosure of their names. There is also no evidence that Lt. Pike has been subject to intimidation or harassment in the past three months.”

Significance of the Ruling and the Vanguard’s Involvement

“The significance overall [of this ruling] is that it wasn’t sufficient to just release some names when the whole goal of the Reynoso report was to make clear to everyone that was involved, Lt. Pike did not act alone that day, and the chief of police didn’t just direct him,” Thomas Burke said.  “There are any number of other officers who were carrying out public business involved in the operation – the botched operation that was so criticized by the Task Force Report.”

“It didn’t make any sense to just make certain names available and single out particular officers when there were any number of officers who were involved,” he said.

Thomas Burke noted that the work of the Davis Vanguard was critical in this ruling.  The judge specifically noted and recognized the importance of internet postings regarding this incident that were filed as exhibits.

“The LA Times does present evidence of internet postings after the Pike preliminary injunction order of March 28, 2012,” the judge wrote.

“In this action, the LA Times has presented evidence that the names of officers other than Lt. Pike who were involved in the Incident have been disclosed,” Judge Grillo wrote.  “There is no evidence that those officers have been subject to intimidation or harassment since the disclosure of their names. There is also no evidence that Lt. Pike has been subject to intimidation or harassment in the past three months.”

Linda Lye of the ACLU, who filed the brief in support of the release of the document, said this was critical to Judge Grillo’s decision.

“[The Vanguard’s] investigative journalism had a lot to do with the result that was achieved today,” Ms. Lye told the Vanguard.

“There was just no evidence in this case that there was an ongoing risk of any harm,” Ms. Lye said.  “Why this was particularly clear was because the Davis Vanguard had since the time of the Pike decision revealed the names of additional officers and the police presented no evidence that these additional officers that were involved in the pepper spray, and whose names are now out in the public, there’s no evidence that they’ve been subjected to any kind of harassment whatsoever.”

“So these claims of harassment and danger are highly speculative, they’re lacking in any evidentiary basis,” she said.  “On the other side of the scale we have a very strong interest in the public knowing the identities of officers involved in a highly significant event involving misconduct.”

“The only evidence that they introduced in this matter was the same evidence they introduced in the last matter which they had previously done under seal,” Ms. Lye said.

She said, in the prior case, they did not have the opportunity to review that evidence and determine what the problems with their evidence were.

“Now we know what that evidence was and it consisted of a declaration from [Lt.] Pike about how he was subjected to blasts of emails, text messages, and fake pizza delivery orders in the four weeks following the disclosure of his identity,” Ms. Lye said.  “That’s the only evidence they had.”

“What’s significant is that two additional officers, thanks to the Davis Vanguard, have been identified as being involved in the incident – there was no evidence whatsoever that in the time that followed that they had been subjected to any kind of harassment,” she continued.  “What the public record really shows is there is absolutely no basis to conclude that there is a present, ongoing threat to these officers in anyway.”

The public nature of the event also affects the calculus as to whether the officers had a significant privacy interest.

In this case, the judge ruled that, given the fact that the officers were operating in public, with names on their badges, observed by demonstrators and onlookers and caught on video greatly diminishes any reasonable expectation of privacy.

Without a reasonable safety concern or a privacy claim, the officers were left without a valid reason for their names to be withheld.

“Under the public records act, the people have the right to know what the government is up to, even something that receives much media attention,” Ms. Lye continued.

Linda Lye said that their view is that the judge got the law right here, and she expects that this will be upheld upon appeal.

Meanwhile, the University of California, despite being named to the suit, did not oppose disclosure.

Judge Grillo wrote, “As the public entity in possession of the Report, the Regents w[ere] required to respond to the Public Records Act request. The Regents responded that it could not produce the unredacted Report because it was constrained by the judgment in Pike.”

However, Judge Grillo ruled that the Regents w[ere] not correct in taking this position.

“The Regents were not correct in this position,” the judge wrote, noting that the Pike judgment expressly excluded “any obligation the Regents may have to provide the redacted information as required by law.”

The court reads the Regents’ position as stating, “The Regents ha[ve] reviewed the material you requested and ha[ve] determined that a California court is more likely than not to find that the names of the Officers in the unredacted Report are protected by the California Constitutional right to privacy and therefore exempt from disclosure under Gov. Code 6255(a).”

We know that UC Davis’ legal Counsel, Steven Drown, told the Davis Enterprise they would not turn over the names without a court order.

Mr. Drown argued in December 2011 that, under the circumstances of this case, the officer’s name is exempt from disclosure under the California Public Records Act.

Mr. Drown would argue that “the disclosure of the officer’s name, given other publicly available information, would indicate that the officer is the subject of a University internal affairs investigation concerning the November 18 incident.”  He adds, “It was my view that this information is a confidential personnel record under Penal Code section 832.7 and 832.8, which cannot be disclosed to the public unless a ‘Pitchess Motion’ has been granted by a reviewing court.”

We view this as the university covering themselves and allowing the court itself to be the arbiter of the law.

“The University of California has always been in favor of the release of the full report,” University of California Spokesperson Brooke Converse told the Vanguard.  “UC will abide by the court’s ruling on this matter.”

—David M. Greenwald reporting