Public Safety Law Blog

In this case, a police dispatcher filed a complaint against a university police officer, alleging harassment, disparate treatment, and hostile work environment.  The dispatcher was notified that the allegations were not sustained.  The dispatcher’s union requested a copy of the investigation, asserting it had a right to access the materials to represent its member.  The University refused to produce the report or otherwise discuss potential redactions, citing the confidentiality provisions set forth Penal Code section 832.7.  The union filed an unfair labor practice charge against the University.

PERB began by citing the general standard applicable to disputes involving labor requests for information, namely, an employer may not flatly refuse to provide information to a union citing privacy concerns.  Instead, decades of PERB case authority demands that an employer meet and confer with the union to discuss methods to limit privacy concerns, such as redactions. However, the Board observed that state law supplied an equally-well-settled standard for discovery of confidential peace officer records. This process is governed by Penal Code section 832.7 and provisions of the Evidence Code, and is known as the “Pitchess” process (given its origin in a California Supreme Court decision).  The Board observed that this process supplied the exclusive route for third parties to obtain peace officer personnel records, and that the same procedures applied in administrative proceedings and MOU-based arbitrations.^[2] On this latter point, the Board noted the parallel between administrative proceedings governed by the Pitchess process, and the quasi-judicial administrative proceedings conducted by PERB and its administrative law judges. Given the exclusivity of this process, and its application to closely-analogous contexts, PERB found it trumped the default, liberal standards applicable to ordinary requests for information under state labor law.

PERB also reached other holdings of more practical importance to public employers.  Given Pitchess proceedings are required for unions to obtain confidential peace officer records from public employers, and compliance with those procedures is only possible in the context of a hearing (whether grievance arbitration or unfair practice litigation), unions cannot obtain these records through an information request unconnected to pending litigation.  PERB relied on well-settled and extensive judicial case law precedent in reaching this holding.  The Board took particular guidance from the California Supreme Court’s decision in Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, in finding that the CPRA did not allow a party to “so easily… circumvent the privacy protection guaranteed under” statutory Pitchess procedures to obtain confidential peace officer records under another avenue.  PERB shared these concerns, and ruled that unions could not similarly circumvent Pitchess procedures and standards by seeking these records through an information request.  While these statutory standards can be respected and enforced in a contractual grievance or unfair practice hearing, “compliance with these standards is impossible if there is no pending proceeding where the requesting party may file a motion” complying with Pitchess.

Public employers would be well advised to take note of the rare limitations placed on unions’ right to request information, and its interaction with Pitchess discovery statutes.  In assessing its obligation to produce confidential peace officer personnel records to a recognized union, a public employer should consider whether it arises in the context of a pending unfair practice proceeding, or (per the demands of Stiglitz) a contractual arbitration proceeding. If not, an employer should consult Pitchess standards and procedures in lieu of ordinary RFI practices.  Please feel free to contact the authors of this alert or your regular AALRR counsel with questions or to strategize about the impact of this decision on your agency.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. The applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

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^[1] California’s Legislature codified these discovery procedures in sections 1043 and 1045 of the Evidence Code.

^[2] On this latter point, the California Supreme Court held in Riverside County Sheriff’s Department v. Stiglitz (2014) 60 Cal.4th 624 that the Pitchess statutory scheme allows an arbitrator to order production and in camera review of confidential peace officer records in the context of a labor contract-based arbitration.