(May 7, 2015) -- LBREPORT.com provides a link below (as we did nearly a year ago when the CA Supreme Court released its opinion) on the law in California regarding when a City must disclose, or may lawfully withhold, the identity of a police officer involved in an officer-involved shooting in response to a request under the CA Public Records Act.

The CA Supreme Court case stemmed from an effort by the Los Angeles Times to obtain, and the LB Police Officers Ass'n effort to prevent release of, the names of officers involved in the 2010 LBPD fatal shooting of Doug Zerby (the Belmont Shore "hose nozzle" case). The CA Supreme Court ruled that the CA Public Records Act requires cities in most cases to release the names of police officers in officer-involved shootings and its ruling [full text linked below] struck down blanket-withholding of officers' names, BUT left open the possibility that the names of officers could be lawfully withheld in circumstances where there were specific evidence that the officers' safety might be at risk from disclosure (such as gang involvement and the like.)

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The CA Supreme Court ruling came after the Los Angeles Times sought the names of the involved officers under the CA Public Records Act in the Doug Zerby fatal shooting. LBPOA sought to prevent City Hall from releasing the documents; the City ultimately aligned itself with LBPOA in declining to release the documents; the trial court ruled in favor of the newspaper's request for disclosure, as did an appellate court and the CA Supreme Court [with one blistering dissent.]

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In a key portion of the ruling, the Court's majority stated:

A serious question arises as to whether the names of peace officers involved in particular law enforcement incidents can be characterized as “[p]ersonnel · or similar files” (ibid.). Moreover, when it comes to the disclosure of a peace officer's name, the public's substantial interest in the conduct of its peace officers outweighs, in most cases, the officer's personal privacy interest. As we noted in Commission on Peace Officer Standards: “Peace 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.’ (City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1428.) A police officer ‘possesses both the authority and the ability to exercise force. Misuse of [this] authority can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss.’ (Gray v. Udevitz (10th Cir.1981) 656 F.2d 588, 591.)” (Commission on Peace Officer Standards, supra, 42 Cal.4th at pp. 299–300.) Thus, the public's significant interest in the conduct of its peace officers “diminishes and counterbalances” an officer's privacy interest in keeping his or her name confidential. (Id. at p. 299.)

In a case such as this one, which concerns officer-involved shootings, the public's interest in the conduct of its peace officers is particularly great because such shootings often lead to severe injury or death. Here, therefore, in weighing the competing interests, the balance tips strongly in favor of identity disclosure and against the personal privacy interests of the officers involved. Of course, if it is essential to protect an officer's anonymity for safety reasons or for reasons peculiar to the officer's duties—as, for example, in the case of an undercover officer—then the public interest in disclosure of the officer's name may need to give way. (See International Federation of Professional and Technical Engineers, Local 21, AFL–CIO v. Superior Court (2007) 42 Cal.4th 319, 337.) That determination, however, would need to be based on a particularized showing, which was not made here.

We next consider the City's assertion that Government Code section 6254's subdivision (f) permits it to withhold the names of officers involved in on-duty shootings. That provision exempts from disclosure “[r]ecords · of investigations conducted by · any state or local police agency.” (Ibid.) The Times here is not seeking the records of any administrative or criminal investigation, so that exemption is inapplicable.

Finally, we consider the catchall exemption in Government Code section 6255's subdivision (a), which allows a public agency to withhold any public record if the agency shows that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” The catchall exemption sets forth a balancing test, and we have already concluded that, generally, the balance of interests favors disclosing the names of peace officers involved in on-duty shootings. (See pp. 14–15, ante.) Vague safety concerns that apply to all officers involved in shootings are insufficient to tip the balance against disclosure of officer names. As we have said in the past, “[a] mere assertion of possible endangerment does not ‘clearly outweigh’ the public interest in access to · records.” (CBS, Inc. v. Block, supra, 42 Cal .3d at p. 652.)

The Union and the City assert that disclosing the names of peace officers involved in shootings could lead to harassment of those officers and their families. In rejecting that argument, the trial court found that the Union and the City had offered “no evidence” of a “specific safety concern regarding any particular officer.” We agree. The declaration by Long Beach Police Lieutenant Cox (submitted by the City) described the possibility of gang retaliation against officers involved in shooting gang members, but those concerns were general in nature. The December 2010 Zerby shooting did not involve a gang member, and the Union and the City did not identify other shootings that did involve a gang member. The Cox declaration also mentioned two safety bulletins warning of “potential retaliation/threats” against officers involved in shootings, and it described graffiti that read “Strike Kill a Cop,” but those vague concerns do not establish any specific danger to the officers involved in the Zerby shooting or any shooting that occurred in the six years before the Zerby shooting (see the Times's public records request, quoted at p. 2, ante ).

[emphasis added by LBREPORT.com as salient text] We do not hold that the names of officers involved in shootings have to be disclosed in every case, regardless of the circumstances. We merely conclude, as did the trial court and the Court of Appeal, that the particularized showing necessary to outweigh the public's interest in disclosure was not made here, where the Union and the City relied on only a few vaguely worded declarations making only general assertions about the risks officers face after a shooting. The public records request by the Times is broadly worded and covers a wide variety of incidents. Thus, the Union and the City sought a blanket rule preventing the disclosure of officer names every time an officer is involved in a shooting. Such a rule would even prevent disclosure of the name of an officer who acted in a heroic manner that was unlikely to provoke retaliation of any kind, in which case officer safety would not be an issue. We reject that blanket rule.

The trial court's denial of injunctive relief was without prejudice to any later evidentiary showing that disclosing a particular officer's name would compromise that officer's safety or the safety of the officer's family. That ruling permits further litigation by the Union, and it reflects the trial court's recognition, which we share, that the public's interest in access to public records is not absolute and must be weighed against the countervailing privacy and safety interests of peace officers. Understandable are the general safety concerns of officers who fear retaliation from angry members of the community after an officer-involved shooting, especially when the shooting results in the death of an unarmed person. But the Legislature, whose laws we must construe, has not gone so far as to protect the names of all officers involved in such shootings. That the Legislature generally considers it important for the public to know the identities of the officers serving the community is reflected in the statutory provision requiring a uniformed officer to display either a name or an identification number (Pen.Code, § 830.10).

Disposition

We affirm the judgment of the Court of Appeal, which upheld the trial court's denial of the Union's requested injunctive relief.

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The Court's opinion included a dissent from retired Associate Justice Kennard. (assigned by the Chief Justice on the opinion.)

[Dissent by Kennard]...[T]here are good reasons for not requiring, as to each officer whose name is to be withheld, evidence of an actual and specific threat to the officer or the members of his or her family. Where, as here, the disclosure request covers all officer-involved shootings during a six-year period, requiring such individualized proof will impose an obvious and substantial burden on law enforcement agencies that want to protect their officers.5 More importantly, as the Union observes, “killers do not usually announce their intentions in advance.” Thus, in most cases, although the threat to officer safety is real, the kind of evidence the majority demands is not available. Because the lives of our officers and their families are at stake, I would not require a law enforcement agency to wait until there is a specific threat—or worse, an actual attack—before allowing it to withhold information that puts its officers and their families at risk. Absent a showing of some greater public need for the information, we should allow law enforcement agencies to protect the very officers who are out there every day protecting us. They deserve at least that much for their brave service.

LBREPORT.com provides the full opinion below.

LBPOA vs. L.A. Times

The Court's full opinion can also be viwed at this link.

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In response to the CA Supreme Court's ruling in the Zerby matter, the Long Beach Police Officers Association issued the following statement (May 2014):

It is unfortunate that the majority of the Court does not recognize the safety concerns created for officers and their families involved in critical incidents when their names are released publicly.

It is the uncomfortable truth that releasing an officer's name affirmatively endangers the officer and his/her family. In the Internet age, it is a fact that releasing an officer’s name is tantamount to releasing all of their personal information.

Retribution against public safety personnel and other risks associated with the public release of an officer’s personal information is a real and existing danger, one that Justice Chin does an outstanding job of detailing in his dissenting opinion.

We respectfully disagree with the Court’s majority opinion that the public’s interest in this information outweighs the safety of the involved officers and their families. Police officers and other public safety personnel already face a wide range of risks. It is unfair and unconscionable that we should add the safety of their families and homes to that list as well.

Unfortunately, it may take the injury or death of an officer or a member of their family before legislation corrects the court’s misguided opinion. We will work actively and diligently to eliminate this risk through legislative action before that tragedy occurs.

We are disappointed in the lack of concern for the safety of the officers who put their lives on the line every day. However, our members will continue to serve the community with the same high level of professionalism the residents of Long Beach have grown accustomed to and deserve.

The day after the April 23, 2015 fatal shooting, LBREPORT.com asked LBPD if within the scope of the CA Supreme Court ruling, LBPD will be releasing the name of the officer involved and other information (gender, number of years on the force, history of any commendations or discipline, etc.) LBPD PIO Sgt. Megan Zabel replied (April 24) that LBPD wasn't releasing the name of the officer "at this time" but indicated the officer has been with LBPD for over 20 years.

Sgt. Zabel also indicated that the shooting occurred in a vacant (not resided in) Central LB apartment unit whose inside walls were allegedly covered with fresh gang-related graffiti. LBPD indicated in its release on the shooting that four other individuals (two men and two women in their early 20s) were arrested at the scene related to the incident.

Developing.