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Long Beach Police Officers Association v. City of Long Beach et al

February 7, 2012

LONG BEACH POLICE OFFICERS ASSOCIATION, PLAINTIFF AND APPELLANT,
v.
CITY OF LONG BEACH ET AL., DEFENDANTS AND APPELLANTS; LOS ANGELES TIMES COMMUNICATIONS LLC, REAL PARTY IN INTEREST AND RESPONDENT.



(Los Angeles County Super. Ct. No. NC055491) APPEAL from an order of the Superior Court of Los Angeles County. Patrick T. Madden, Judge. Affirmed.

The opinion of the court was delivered by: Doi Todd, J.

CERTIFIED FOR PUBLICATION

Real party in interest and respondent Los Angeles Times Communications LLC (Times) made a request under the California Public Records Act (Gov. Code, § 6250 et seq.; Cal. Const., art. I, § 3(b))*fn1 (CPRA) seeking the names of police officers involved in a December 2010 officer-involved shooting in Long Beach and those involved in officer-involved shootings in Long Beach for the preceding five years. Plaintiff and appellant the Long Beach Police Officers Association (LBPOA) brought an action against defendants and appellants the City of Long Beach, the Long Beach Police Department and Chief of Police James McDonnell (collectively City) seeking to enjoin disclosure of the names. After initially issuing a temporary restraining order, the trial court granted the Times's request to dissolve the order and denied, without prejudice, the LBPOA's request for an injunction.

We affirm. The trial court properly ruled that officer names are not rendered confidential by any of the statutory exemptions contained in the CPRA.

FACTUAL AND PROCEDURAL BACKGROUND

On December 12, 2010, Long Beach police officers shot and killed Douglas Zerby, an intoxicated, unarmed 35-year-old man who was carrying a garden hose nozzle that officers mistook for a gun. Following the shooting, Times reporter Richard Winton made a CPRA request to the City seeking "[t]he names of Long Beach police officers involved in the December 12 office[r] involved shooting in the 5300 block of East Ocean Boulevard" and "[t]he names of Long Beach police officers involved in officer involved shootings from Jan. 1[,] 2005 to Dec. 11, 2010." The City initially responded that it intended to comply with the request by January 10, 2011.

After the City informed the LBPOA of the request and its intent to comply, the LBPOA filed a verified complaint against the City, seeking a temporary restraining order and preliminary and permanent injunctions to prevent the release of the names. In support of the LBPOA's request, LBPOA president Steve James averred he was aware that the shooting review which takes place following an officer-involved shooting can lead to findings resulting in an internal affairs investigation. He expressed safety concerns about releasing the names of shooting officers, referring to an incident in which an anonymous blog posting contained a threat to a shooting officer's family and to another incident in which an officer involved in a shooting was reassigned to another area following death threats. He also described the ease with which the Internet allows an individual to discover personal information about another and opined that "[t]he best way to keep officers safe from these unknown people who may try to bring harm is to not let them know which officer was involved."

Following a December 30, 2010 hearing, the trial court issued a temporary restraining order preventing the release of the officers' names. Finding that the Times should have been given notice of the proceedings, the trial court directed the LBPOA to give notice and set the matter for a preliminary injunction hearing.

Thereafter, the Times moved to intervene and filed opposition. The City filed a memorandum in which it aligned itself with the LBPOA. In support of the City's position, Long Beach Police Department Lieutenant Lloyd Cox averred that department policy was not to release the names of officers involved in an officer-involved shooting because those officers become the subject of an administrative and/or criminal investigation, and the investigative materials become part of the officers' personnel records. He further declared that upon completion of the investigative process, the officer names were kept confidential unless a motion was filed pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) or they were sought through discovery in a civil or criminal case. He indicated that, since late 2007, the police department had issued eight officer safety bulletins about potential threats or retaliation against officers, two of which related to officer-involved shootings. Noting that knowing someone's name can be the gateway to a world of information about him or her through the Internet, Lieutenant Cox declared that "the Long Beach Police Department insists on protecting the identity of its officers, when those officers are involved in critical incidents, including shootings, in order to ensure their safety and the safety of their families."

Following a January 18, 2011 hearing, the trial court issued an order granting the Times's request to intervene and to dissolve the temporary restraining order, and denying without prejudice the LBPOA's preliminary injunction request. As part of the order, the trial court sustained the Times's evidentiary objections to James's declaration. Specifically, it sustained objections to James's generalized statements about safety concerns, his description of the two incidents of anonymous threats and his opinions about Internet access and officer safety. The Times did not file objections to Lieutenant Cox's declaration.

Addressing the first requisite element of preliminary injunctive relief, the trial court ruled that the LBPOA had not demonstrated a likelihood of success on the merits. It concluded that the CPRA required disclosure of officer names unless the LBPOA or the City established the names were exempt from disclosure under a statutory exception. The trial court ruled that the release of the names was not an unwarranted invasion of personal privacy (§ 6254, subd. (c)), the names could not be shielded as an investigative report (§ 6254, subd. (f)), and the names were not protected as a part of a police officer's personnel record (§ 6254, subd. (k); Pen. Code, §§ 832.7 & 837.8). Nor did the trial court find that the public interest in nondisclosure outweighed the public interest served by disclosure of the names. (§ 6255, subd. (a).)

With respect to the element of irreparable harm, the trial court ruled that neither the LBPOA nor the City had demonstrated that any officer was likely to suffer harmful consequences as a result of disclosure. But it recognized that, potentially, a showing could be made that disclosing the identity of a particular officer would compromise his or her safety. Accordingly, the trial court ruled that its denial was without prejudice to renewed requests by the LBPOA or the City to seek, upon a proper evidentiary showing, an order protecting the names of particular officers from disclosure. Finding that the balance of hardships element had been addressed in connection with the other elements, the trial court reasoned that the present balance weighed in favor of disclosure but, depending on a future evidentiary showing, could shift with respect to the name of a particular officer.

Thereafter, the trial court granted the LBPOA's application for a 30-day stay to file for writ relief in this Court. In February 2011, the LBPOA and the City filed petitions for writ of mandate and the LBPOA simultaneously filed a notice of appeal from the trial court's order. We issued an order providing that the trial court's order was directly appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(6) and had been appealed by the LBPOA. We construed the LBPOA's petition as a petition for writ of supersedeas, which we granted to stay the trial court's order, and denied the petition for writ of mandate in all other respects. The City filed a separate notice of appeal in March 2011.

DISCUSSION

Appellants contend that the trial court misconstrued both the applicable statutory scheme and California Supreme Court authority in ordering the disclosure of officer names. They also contend that the trial court engaged in an improper balancing, failing to accord due weight to the interests served by nondisclosure. We disagree with their contentions.*fn2

I. The Statutory Scheme and Standard of Review.

"In 1968, the Legislature enacted the CPRA 'for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies. [Citation.]' [Citation.]" (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1281 (Copley Press).) Consistent with this purpose, the Legislature declared that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (§ 6250.) Since 2004, the California Constitution has confirmed the principle: "The people have the right of access to information concerning the conduct of the people's business, and, therefore, . . . the writings of public officials and agencies shall be open to public scrutiny." (Cal. Const., art. I, § 3, subd. (b)(1); see International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 329 (International Federation); Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 288 (POST).)

But the right of access to public records under the CPRA has never been absolute. (Copley Press, supra, 39 Cal.4th at p. 1282.) In section 6250, the Legislature declared it was "'mindful of the right of individuals to privacy,'" and the dual concern for privacy and disclosure appears in numerous provisions throughout the CPRA. (Copley Press, supra, at p. 1282.) Likewise, the Constitution recognizes the right to privacy, providing that nothing in article 1, section 3, subdivision (b) is intended to supersede or modify the constitutional right of privacy or the statutes or rules guaranteeing that right, or to ...


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