Request #9615

This is a request for government records under the California Public Records Act, California Government Code § 7920.000 (“CPRA”); the Ralph M. Brown Act “(Brown Act”); Penal Code Section 832.7(b); and Article 1, section 3(b)(1)-(2) of the California Constitution.

I request the following records:

* All agreements between your government body or law enforcement department (collectively, “Agency”) and any current or former peace officers or custodial officers (“Officer”) 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, clean-record agreements or resignation agreements (“Agreements”). This includes Agreements that negotiate an Officer’s disability retirement. This includes Agreements executed on 1/1/23 to the present.

More than 167 other local government bodies and law enforcement departments have agreed that these Agreements must be disclosed under these laws and have disclosed over 300 Agreements to me.

A. Your Agency Is Required to Disclose the Agreements under the CPRA and Penal Code section 832.7(b)

All Agreements related to incidents covered by Penal Code § 832.7(b)(2) must be disclosed. Additionally, y our Agency cannot withhold Agreements if the Officer “resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.” Cal. Penal Code §§832.7(b)(3).

Nor can your Agency withhold these Agreements by claiming that the Agreements supposedly reversed a sustained finding of misconduct by the Officer. A Contra Costa County Superior Court judge ruled in Richmond Police v. City of Richmond that once a government agency makes a “sustained finding” of misconduct disclosable under Penal Code Section 832.7(b)(1)(A)-(C), the agency cannot withhold those records from disclosure by claiming the “sustained finding” was reversed by a settlement agreement with the officer. As the court explained, “it is a matter of plain historical fact that ‘a sustained finding was made’. Period. What happened to the finding later is irrelevant…. If a sustained finding is made, the agency and the officer cannot undo that historical fact by … agreement.” Stipulation and Order Entering Ruling at 32, Richmond Police v. City of Richmond , MSN19-0169, (Sup. Ct. Nov. 2, 2021)

B. Your Agency Is Required to Disclose the Agreements Under the Ralph M. Brown Act

To the extent that any of these Agreements resolve a claim filed against your Agency under the California Tort Claims Act or a lawsuit filed against your Agency, and/or required the payment of taxpayer money to the Officer, and a government body voted to approve the payment of taxpayer funds, the Agreements must be released under the Ralph M. Brown Act. In Register Division of Freedom Newspapers, Inc. v. County of Orange, 158 Cal. App. 3d 894, 909 (1984) (“Freedom Newspapers”), the Court of Appeal held that the Brown Act required a local government body to publicly disclose its written settlement agreement resolving a tort claim against that body under Government Code § 54957.1(b)-(c).

Indeed, 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.

To the extent that the Agreements contain bank account information, Social Security numbers, and similar information, that information can be redacted.

C. Your Agency Is Required to Disclose the Agreements Because They Are Public Employment Contracts

The 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 that is not subject to Section 7922.000 [“public interest” exemption] and the provisions listed in Section 7920.505 [exemptions for law enforcement records, medical records, privacy]”. Gov’t Code § 7928.400. This disclosure provision for public employee contracts 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 § 7928.400 (previously numbered Government Code § 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 the public employee contract provision of the CPRA.

Here, any Agreements dictating the terms of employment for an Officer are public employment contracts subject to disclosure under § § 7928.400. A separation agreement is no different from the employment termination letter that the Court of Appeal found to be disclosable under § 7928.400 in Braun . Given that all agreements that dictate the terms of employment, separation, exit, resignation, retirement, etc. between individual peace officers and your Agency qualify as employment contracts, these Agreements are public records under the CPRA, and must be disclosed.

D. The Officers Waived Any Right to Confidentiality and Privacy by Signing Legal Settlement Agreements with Your Agency

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 Public Records Act.

Freedom Newspapers , 158 Cal. App. 3d 894, is instructive. The Court of Appeal held that a claimant waived his right to privacy in his medical records by submitting them to the county to settle his Tort Claim Act claim and ordered his medical records disclosed. Id . at 902-03. See also San Gabriel Tribune v. Superior Court , 143 Cal. App. 3d 762, 780-81 (1983) (ordering disclosure of private utility company’s confidential financial data on the grounds that that the company “waived any privacy interests” in its financial data submitted to a government agency by “voluntarily injecting itself into the public arena by seeking a rate increase and submitting financial data in support of same”).

Here, any Officer who signed an Agreement with your Agency resolving either their tort claim filed with your Agency or their lawsuit filed against your Agency in court waived any right to confidentiality or privacy in that Agreement. 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 your Agency 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 Officer who signed a settlement agreement with a government agency to resolve their claims and/or lawsuits against that government body or department.

E. Any Government Promises of Confidentiality Are Void

Any promises by your Agency to an Officer that the Agreement resolving their 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); s ee 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).

F. The Names of all Signatories to the Agreements Must Be Disclosed

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 when the Agreement itself is a disclosable public record and the officer has waived their right to privacy by signing the agreement with a government agency.

G. Your Agency Is Required to Redact the Agreements to Remove Exempt Information, Not Withhold The Entire Agreements

The California Supreme Court held in CBS, Inc. v. Block , 42 Cal. 3d 646 (1986) that government agencies may not withhold an entire document if some portions are exempt from disclosure. As the court explained, “The fact that parts of a requested document fall within the terms of an exemption does not justify withholding the entire document .” Id . at 653. See also Gov’t Code § 7922.525 (b) (“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”). As CBS and CPRA make clear, 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.”

H. Your Agency Has a Duty to Search and Locate Records, Even If You Claim They Are Exempt

Your Agency cannot simply throw up your hands and refuse to search for records because you contend some records might be exempt from disclosure.

A government agency is required to “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.”). See also Gov't Code § 7922.000 (government agency must “justify withholding [the] record by demonstrating that the record in question is exempt under express provisions"). 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.

As these cases make clear, you must make a reasonable effort to determine if it has any responsive records and may not refuse to look for records simply because it believes some of the records might be exempt from disclosure. If you locate any responsive records, you must state that you have located responsive records and cite specific exemptions if you withhold any responsive records.

You are 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). Your Agency is prohibited from requiring separate CPRA requests for each of its individual departments or divisions. Id. at *7. We ask your Agency to provide all responsive records located in all of its departments.

Conclusion

There is no doubt that these Agreements must be disclosed under the California Public Records Act; California Government Code § 7920.000; the Ralph M. Brown Act; Penal Code Section 832.7(b); and Article 1, section 3(b)(1)-(2) f the California Constitution.

If you deny any or all of this request, please cite the “express provisions” of the CRPA you believe justify secrecy (Gov’t Code § 7922.000); provide “the names and titles or positions of each person responsible for the denial” (Gov’t Code 7922.540(b)); and provide suggestions for overcoming any practical basis for denying access to the requested records.

Please send any documents in electronic format to [ mailto:settlements@investigative-reporting-program.com | settlements@investigative-reporting-program.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.

Sincerely,

Katey Rusch