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Court Rules Officers Implicated In UC Davis pepper spraying Must Be Named

Federated University Police Officers Association (FUPOA) v. Superior Court
filed July 23, 2013 in the Court of Appeal, First Appellate District

The Court of Appeal ruled that the University of California must disclose the names of all the police officers who were involved in a November 2011, UC Davis campus protest, during which officers were videotaped pepper spraying demonstrators.

The First District Court of Appeal ruled in favor of Los Angeles Times Communications and The Sacramento Bee, holding that the FUPOA failed to demonstrate that the police officer's identities in this case were exempt from disclosure under the California Public Records Act ("CPRA").

The controversy began in April 2012, when a task force led by former California Supreme Court Justice Cruz Reynoso released a report detailing police misconduct during the campus protest. In the report, the task force concluded, "The pepper-spray incident . . . should and could have been prevented." The report did not recommend any discipline for any police officer, stating it was "not address[ing] the issue of discipline".

The commission, however, redacted from the report the names of more than a dozen police officers who planned, participated in and/or witnessed the incident. This redaction followed an agreement between the UC Board of Regents and the FUPOA that the names would be kept confidential due to concerns about the police officers' safety.

In May 2012, the LA Times and the Sacramento Bee filed a petition with the Alameda County Superior Court against the UC Regents to disclose the names pursuant to the CPRA. At the Superior Court hearing the newspapers argued the FUPOA failed to cite proof that any of the officers were likely to suffer harmful consequences as a result of the disclosure of their names.

The Court of Appeal decision discussed the strong privacy interest of police officers in their personnel records. The court concluded that the Pitchess statutes, which were enacted to protect such records, did not prevent the disclosure of the police officer's identity in this case. The court stated that the Reynoso report was not a "de facto investigation" of a citizen complaint, nor is the report an exempted personnel record.

Following the ruling, the Court of Appeal ordered that the stay remain in effect, allowing the names of the officers to be withheld for 40 days, to permit FUPOA time to decide whether or not to file a petition for review in the California Supreme Court.

There is currently pending before the California Supreme Court a case where the issue is whether the names of police officers involved in on-duty shooting incidents are subject to disclosure under the California Public Records Act. (Long Beach Police Officers Association v. City of Long Beach (Los Angeles Times Communication, S200872.) The FUPOA had earlier requested the Court of Appeal to stay or vacate their case pending the decision in the Supreme Court in this "related" matter. That request was denied. Since the Court of Appeal decision has been ordered published, it is expected that the Supreme Court will likely grant review and stay proceedings until the Long Beach matter is decided.

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