Request #8190

To Whom It May Concern: 

On 7/17/20, the Investigative Reporting Program sent the City of Garden Grove a California Public Records Act request seeking agreements regarding threatened discipline or discipline between the City of Garden Grove and/or Garden Grove Police Department and former or current employees of the City of Garden Grove Police Department dated January 1, 2010 to the date of the letter. These agreements are sometimes referred to as settlement agreements, last chance agreements, separation agreements, clean record agreements, resignation agreements, etc.
On 8/14/20, the city said it had responsive records but was withholding those records based on exemptions.
This is a repeat request for disciplinary settlement agreements from 7/17/20 to the date of this letter. This request includes:
All agreements between your government body or law enforcement agency and any current or former peace officers that resolve a dispute related to potential or actual discipline. These agreements may be titled exit agreements, separation agreements, settlements, legal settlements, settlement and release agreements, last chance agreements, or resignation agreements. (collectively, “Agreements”). This includes agreements that negotiate disability retirements. Additionally, we want to make you aware that since the original request was sent, the California legislature has expanded access to peace officer disciplinary records to include records relating to an incident in which the officer “resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.” See Cal. Penal Code §§832.7(b)(3). We ask that you review the records withheld and release those that are non-exempt. Introduction
The California Public Records Act requires you to release these Agreements for three reasons. First, these Agreements are not police personnel records because they are not part of the process of investigating a citizen complaint or evaluating an officer’s job performance for purposes of discipline, promotion, or demotion. Rather, these Agreements are public employment contracts between a government agency and a public employee, disclosable under the CPRA.
Second, releasing the Agreements will not violate the officers’ right to privacy because the Agreements do not contain personal information such as marital status or date of birth. To the extent that the Agreements contain bank account information, Social Security numbers, and similar information, that information can be redacted.
Third, to the extent that any of these Agreements resolve a claim filed against your government body under the California Tort Claims Act or a lawsuit filed against your government body or a government agency, and/or required the payment of taxpayer money to the officer, disclosure of those Agreements is required by the Brown Act. The officers have waived any rights to confidentiality by submitting such claims or filing such lawsuits, and any promises of confidentiality made by your government body or a government agency to the officers is void.
During this time when the public is demanding improved police transparency and accountability, the public interest weighs heavily in favor of disclosure of these Agreements. 
A. The CITY Has a Duty to Search and Locate Records
The California Public Records Act requires a public agency to make “a reasonable effort to search for and locate requested records.” The People’s Business: A Guide to the California Public Records Act, League of California Cities, Revised April 2017, p. 23. An agency must “determine whether it has such writings under its control and the applicability of any exemption[s].” California First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 166 (1998). In Haynie v. Superior Court, 26 Cal. 4th 1061, 1072 (2001), the California Supreme Court observed with apparent approval that the government agency in the case conceded that it was required to look for responsive records and cite any claimed exemptions. See also Jentz v. City of Chula Vista, No. D053525, 2009 WL 2734782, at *13 (Cal. Ct. App. Aug. 31, 2009) (“[T]he CPRA generally requires an agency . . .  to determine whether responsive documents exist.”); Cmty. Youth Athletic Ctr. v. City of Nat'l City, 220 Cal. App. 4th 1385, 1429 (2013) (“[T]he City had the obligation to . . . make reasonable efforts to facilitate the location and release of the information.”); Gov't Code § 6255 (government agency must “justify withholding [the] record by demonstrating that the record in question is exempt under express provisions").

As these cases make clear, the CITY must make a reasonable effort to determine if it has any responsive records. The CITY may not refuse to look for records simply because it believes some of the records might be exempt from disclosure. If the CITY locates any responsive records, it must state that it has located responsive records and cite specific exemptions if it withholds any responsive records.
Further, the CITY is required to search for all responsive records in all departments, regardless of whether the records are located in one or more of its departments. Kumeta v. City of San Diego, No. D037521, 2002 WL 1554448, at *5 (Cal. Ct. App. July 16, 2002). The CITY is prohibited from requiring separate CPRA requests for each of its individual departments or divisions. Id. at *7. We ask the CITY to provide all responsive records located in all of its departments.
B. The Agreements Are Not Confidential Police Personnel Records
These Agreements are not police personnel records governed by the Pitchess statutes and therefore must be released under the California Public Records Act.
These Agreements Are Disclosable Public Employment Contracts
The California Public Records Act states that “[e]very employment contract between a state or local agency and any public official or public employee is a public record which is not subject to the provisions of Sections 6254 and 6255.” Gov’t Code § 6254.8. Section 6254.8 has been found to apply to employment termination letters. In Braun v. City of Taft, 154 Cal. App. 3d 332, 344 (Ct. App. 1984), the Court of Appeal held that a letter from the city rescinding a fireman’s appointment as a transit administrator was subject to disclosure under § 6254.8 of the CPRA because it constituted an employment contract. Similarly, in Humphreys v. Regents of Univ. of California, No. C 04-03808 SI, 2006 WL 8459527, at *2 (N.D. Cal. May 23, 2006), a federal district court treated severance agreements as disclosable public employment contracts under § 6254.8.
The California League of Cities advises that any time a government body makes a decision in a closed session to “appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee,” that decision “must be reported at the public meeting during which the closed session is held.” Open and Public IV: A Guide to the Ralph M. Brown Act (League of California Cities, 2d Ed. Revised July 2010), p. 39.
Here, any Agreements dictating the terms of employment for peace officers are public employment contracts subject to disclosure under § 6254.8. A separation agreement is no different from the employment termination letter that the Court of Appeal found to be disclosable under § 6254.8 in Braun. Given that all agreements that dictate the terms of employment, separation, exit, resignation, retirement, etc. between individual peace officers and the CITY are employment contracts, these Agreements are public records under the CPRA, and thus subject to disclosure.
2.   The Agreements Are Not Police Personnel Records Because They Were Not Created to Investigate Complaints or Impose Discipline Against Officers
We are not seeking disciplinary personnel records governed by California Penal Code §§ 832.7 and 832.8. We are not seeking internal affairs investigations, Notices of Proposed Disciplinary Action, or Final Notices of Disciplinary Action. We are simply seeking to obtain Agreements that resolve disputes between peace officers and the CITY or the government agency that employed or employs them. These Agreements must be disclosed because they were not created for the purpose of disciplining officers or investigating citizen complaints.
The California Supreme Court has held that only “records generated in connection with ... appraisal or discipline [of peace officers] would come within the statutory definition of [confidential police] personnel records” under Penal Code § 832.8. Long Beach Police Officers Ass’n v. City of Long Beach, 59 Cal. 4th 59, 66-67 (2014). In Pasadena Police Officers Ass’n v. Superior Court, the Court of Appeal reaffirmed that “other records about an incident [involving police conduct] are not” confidential police personnel records. 240 Cal. App. 4th 268, 288 (2015). In that case, the court held that a report by an independent legal team of a fatal police shooting was not a police personnel record and ordered its release to The Los Angeles Times under the CPRA. Id. at 298-99. 
The court rejected the officers’ argument that the report was a personnel record because it might be used to discipline the officers and placed in their personnel file. Pasadena Police, 240 Cal. App. 4th at 292. The court held that an officer may not claim that a record is a confidential police personnel record simply because the records contain information that “could be used” for the purposes of “advancement, appraisal, or discipline.” Id. The officers also argued that the independent report was a protected police personnel record pursuant to Penal Code § 832.5(a), which protects internal police investigations of citizen complaints against officers. Id. at 289. But the court held that the report did not fall into the category of a protected police personnel record because it “was not prepared in response to a citizen complaint.” Id.
The holdings of Long Beach Police and Pasadena Police apply here. The Agreements were not “created” or “generated” by the CITY to evaluate officers’ performances, investigate the officers for possible discipline, or investigate citizen complaints.
3. The CITY Cannot Withhold Non-Personnel Records by Placing Them into a Police Personnel File

The California Supreme Court has declared that the Legislature did not intend for “a public agency [to] be able to shield information from public disclosure simply by placing it in a file that contains the type of [police personnel] information specified [as exempt from disclosure] in section 832.8.” Comm’n on Police Officer Standards & Training v. Superior Court, 42 Cal. 4th 278, 291 (2007). To determine whether a particular document is correctly labeled as a police “personnel file” exempt from disclosure, the court must look at “the content of the document at issue, not the location in which it is stored.” Id. Because these Agreements do not meet the definition of police “personnel records,” it does not matter if the CITY placed the Agreements in the officers’ personnel files. These Agreements are not police personnel files and must be released.
4. Hiring and Departure Dates Are Not Confidential Police Personnel Records
To the extent that the redactions include the officers’ hiring and departure dates, that information is not a protected police personnel record. In Commission on Police Officer Standards, the Court of Appeal held that the hiring and termination dates of California peace officers are not confidential police personnel records under Penal Code §§ 832.7 and 832.8. 42 Cal. App. 4th at 296. As the court explained, “[w]ithout a more specific indication in the statute, we hesitate to conclude that the Legislature intended to classify the identity of a public official whose activities are a matter of serious public concern as ‘personal data.’” Id.
Therefore, no redactions of the officers’ hiring or departure dates are permitted.
5. If the Agreements Contain Disclosable Records Pursuant Penal Code § 832.7(b)(2), those Portions of the Agreements Must be Disclosed 
These Agreements are police personnel records. To the extent that the Agreements contain records that must be disclosed under Penal Code § 832.7(b)(2), those sections of the Agreements must disclosed. Penal Code § 832.7(b)(1)(A) requires all records relating to incidents “involving the discharge of a firearm at a person” by an officer or where “the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury” be disclosed. Records must also be disclosed if they reflect "a sustained finding involving a complaint that alleges unreasonable or excessive force" or a "sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive." Id. § 832.7(b)(1)(A). 
Records must also be disclosed if they reflect a "sustained finding” that an officer “engaged in sexual assault involving a member of the public” or was dishonest in their reporting, investigation, or prosecution of a crime, or to the reporting and investigation of misconduct by another officer. Id. § 832.7(b)(1)(B)-(C). 
A sustained finding of officer misconduct cannot be reversed by an out-of-court settlement agreement. A Contra Costa County Superior Court recently issued a tentative order in Richmond Police v. City of Richmond, stating that “[I]t is a matter of plain historical fact that ‘a sustained finding was made’. Period. What happened to the finding later is irrelevant, unless the later event is sufficient to take the finding outside the statutory definition of ‘sustained finding’ in § 832.8(b).” Hearing on Motion for Issuance of Writ and Judgment Filed by First Amendment Coalition at 32, Richmond Police v. City of Richmond, MSN19-0169, (Sup. Ct. July 31, 2020).
Thus, any Agreements that contain information mandated for disclosure under Penal Code § 832.7(b)(1)(A)-(B), those portions of the Agreements must be disclosed.
Furthermore, as stated above, this also includes records relating to an incident in which the officer “resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.” See Cal. Penal Code §§832.7(b)(3)
C. The Brown Act Requires Disclosure of Agreements  The Ralph M. Brown Act requires that meetings of local city and county government bodies and writings of public officials and agencies “shall be open to public.”  The Brown Act Requires Disclosure of Settlement Agreements Resolving Tort Claims and/or Lawsuits The California Tort Claims Act requires claimants to file a claim with a government body prior to filing a lawsuit. Gov’t Code § 810 et seq. If the claim is not resolved, the claimant can sue the government agency. The Brown Act requires disclosure of all agreements resolving all tort claims and/or lawsuits against local government bodies. In Register Division of Freedom Newspapers, Inc. v. County of Orange, 158 Cal. App. 3d 894, 909 (1984), the Court of Appeal held that the Brown Act required a local government body to publicly disclose a written settlement agreement resolving a tort claim against that body (citing Gov’t Code § 54957.1(b)-(c)). Indeed, the California League of Cities advises cities in its Brown Act handbook that once a government agency approves a settlement agreement, that “settlement agreement is a public document and must be disclosed on request." Open and Public IV: A Guide to the Ralph M. Brown Act (League of California Cities, 2d Ed. Revised July 2010), p. 36. 
In Freedom Newspapers, the government agency argued that it should not be required to reveal the amount of money that it paid to settle the tort claim brought by the injured jail inmate because the disclosure would invite frivolous lawsuits against the county. 58 Cal. App. 3d at 909. The Court rejected this argument, stating that “opening up the County’s settlement process to public scrutiny will … put prospective claimants on notice that only meritorious claims will ultimately be settled with public funds” and “strengthen public confidence in the ability of governmental entities to efficiently administer the public purse.” Id.
Disclosure of settlement details “insur[es] [that] governmental processes remain open and subject to public scrutiny.” Id. “We find these considerations clearly outweigh any public interest served by conducting settlement of tort claims in secret, especially in light of the policies of disclosure and openness in governmental affairs fostered by both the CPRA and Brown Act.” Id.
The same is true here. Any agreements resolving a tort claim and/or lawsuit against the CITY requiring the payment of public funds to an officer must be disclosed under the California Public Records Act and Freedom Newspapers.
The Officers Waived Any Right to Confidentiality and Privacy by Signing Legal Settlement Agreements with the CITY
Unlike settlement agreements in the private sector, settlement agreements with government agencies and all related records are not confidential and must be disclosed under the Brown Act and California Public Records Act. Freedom Newspapers, 158 Cal. App. 3d 894, is instructive. A newspaper sought all records related to a tort claim made against the county by a jail inmate whose throat was slashed by other inmates in the county jail. Id. at 897-98. The county settled the tort claim before a lawsuit was filed. Id. at 897 n.1. The newspaper sought, among other things, the inmate’s medical records that had been submitted to the county as part of the claim; the sheriff’s department’s investigative report and crime report about the incident; the county’s risk management staff’s notes about the case; and the settlement agreement itself. Id. at 899.
The county argued that the inmate’s medical records were exempt from disclosure based on the inmate’s privacy rights under Government Code § 6254(c). Id. at 900-03. The Court of Appeal disagreed, holding that the inmate waived his right to privacy in his medical records by submitting them to the county. Id. at 902-03. “The medical records enclosed in [the claimant’s] letter requesting settlement, although private in nature, were voluntarily submitted to substantiate [his] personal injury claim,” the court said. Id. at 902. “By making his personal injury claim, [the claimant] placed his alleged physical injuries, and medical records substantiating the same, in issue” and “by voluntarily submitting these records to the County for the purpose of reaching a settlement on his claim, [the claimant] tacitly waived any expectation of privacy regarding these medical records.” Id. at 902.
The court also rejected the county’s contention that § 6254(c)’s privacy protection for medical records precluded the county from releasing the claimant’s medical records. Because the county “utilized these supporting medical records in arriving at its decision to settle the claim,” the county “cannot now hide behind [the inmate’s] ‘privacy’ claim to justify its concealment of these records from public scrutiny,” the court ruled. Id.
The Court of Appeal cited San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983), as an analogous case. Freedom Newspapers, 158 Cal. App. 3d at 902. In San Gabriel Tribune, a private utility company contended that its proprietary financial data that it submitted to a government agency to justify a rate increase was exempt from disclosure under the privacy protection of § 6254(k). 143 Cal. App. 3d at 776-77. But the Court of Appeal held that the company “waived any privacy interests it may have had by voluntarily injecting itself into the public arena by seeking a rate increase and submitting financial data in support of same.” Id at 780-81. Because the city “based its decision to grant the rate increase on financial data voluntarily submitted by the Disposal Company,” the court held that “[a]ny privacy interest that may have existed in this data was converted once it was used not only to support but to justify the rate increase.” Id.
Here, any officer who signed an agreement with the CITY resolving either their tort claim filed with the CITY or their lawsuit filed against the CITY in court have waived any right to confidentiality or privacy in those agreements. These officers stand in the shoes of the jail inmate in Freedom Newspapers and the utility company in San Gabriel Tribune. Just as the inmate and utility company waived their rights to privacy and confidentiality in their normally private and confidential information by submitting such information to a government body to settle a tort claim or lawsuit, so, too, have officers waived any right to privacy and confidentiality by providing information to the CITY as part of their tort claims and/or lawsuits and by signing settlements with a public agency to resolve their claims or lawsuits. It does not matter if the officer has certain privacy rights under the Pitchess statutes; all rights to privacy and confidentiality, statutory or constitutional, are waived by any individual who signs a settlement agreement with a government agency to resolve their claims and/or lawsuits against that government body or department.
Based on these authorities, the CITY is required to release all Agreements resolving tort claims and/or lawsuits filed by the officer against the CITY.
3. Any Government Promises of Confidentiality Are Void
Promises by the CITY to the officers that settlement agreements resolving tort claims or lawsuits would be kept secret are void. In a case directly on point, the Court of Appeal held in Freedom Newspapers that “assurances of confidentiality by [a government agency] regarding [a] settlement agreement are inadequate to transform what was a public record into a private one.” 158 Cal. App. 3d at 909-10 (citing San Gabriel Tribune, 143 Cal. App. 3d at 774, 775); see also Poway Unified Sch. Dist. v. Superior Court, 62 Cal. App. 4th 1496, 1505 (1998) (ordering disclosure of a tort claim form containing private medical information submitted by sexual assault victim to government agency even though the victim requested confidentiality).
D. The Names of all Signatories to the Agreements Must Be Released and Not Redacted
The names of all individuals who signed the Agreements must be released. There is no legal basis for redacting the names of the officers, their attorneys, the government officials, or government attorneys who signed the Agreements.
E. POBRA Does Not Apply to These Agreements  Government § 3300 et seq. does not apply to these Agreements. Section 3300 is known as the Public Safety Officers Procedural Bill of Rights Act ("POBRA"). Under POBRA, no punitive action may be taken against a public safety officer unless the officer is provided an opportunity to file an administrative appeal through a disciplinary appeal hearing. Gov’t Code, § 3304(b).  The statute does not apply here because the Agreements terminate all disciplinary proceedings. These Agreements undoubtedly require the officers to waive their right to pursue any further disciplinary appeals or legal claims against the CITY or department. These Agreements typically require the officers to agree that they have "released" and/or "discharged" "any and all" "claims" that the officer may have against the local government body, employees, or supervisors related to the discipline at issue. This type of broad language means the officers implicitly or expressly waived their rights under POBRA. The statute therefore does not apply to these Agreements. F. Government Agencies Are Required to Redact as Opposed to Withhold Documents
The California Supreme Court has held that government agencies may not withhold an entire document if only portions are exempt from disclosure. See CBS, Inc. v. Block, 42 Cal. 3d 646, 653 (1986) (“The fact that parts of a requested document fall within the terms of an exemption does not justify withholding the entire document”). Even if non-exempt materials are intertwined with exempt information, redactions are permitted only when reasonable. See Gov’t Code § 6253(a) (“Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law”). Therefore, a blanket denial of a requested record, simply because an exemption applies to some of the information, is not permitted.
Under Penal Code § 832.7(b)(5)(A), an agency may redact records disclosed in order “to remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.” 
An agency that withholds a record must justify its decision by demonstrating that the specific record or portion of a record is exempt under one of the California Public Records Act’s express exemption provisions or that the public interest served by not disclosing the record clearly outweighs the public interest served by its disclosure. Gov’t Code § 6255. Because the public’s interest in police officers is at its peak, we request that all officer Agreements be disclosed subject to only the redactions listed in § 832.7(b)(5)(A), which does not include officer names and work-related information.
Conclusion
These Agreements must be disclosed under the California Public Records Act because they are employment contracts with government employees and not police personnel records. The Agreements must be disclosed under the California Public Records Act and Brown Act for those officers who filed tort claims and/or lawsuits against the CITY.
Please send any documents in electronic format to irp.settlements@gmail.com. Otherwise, please inquire for a mailing address. 
Please feel free to call Ms. Rusch at (218) 398-7533 if you have any questions.
Thank you for your assistance with this request.
Katey Rusch