International Federation of Professional & Technical Engineers, Local 21 v. Superior Court

KENNARD, J., Concurring and Dissenting.

The majority holds that the names and salaries of public employees are records that are subject to disclosure under the California Public Records Act. (Gov. Code, § 6250 et seq.) I agree. And I agree with the majority that public employees serving as peace officers have no statutory right to prevent disclosure of their names and salaries; but unlike the majority I would simply rely on the plain language of Penal Code sections 832.7 and 832.8 in reaching that conclusion.

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The scope of confidentiality accorded a peace officer’s personal information is properly determined by construing two statutory schemes as well as certain provisions of our state Constitution. I briefly discuss the pertinent law below.

In 1968, the Legislature enacted the California Public Records Act (Gov. Code, § 6250 et seq.), a statutory scheme affirming every Californian’s *347fundamental right of “access to information concerning the conduct of the people’s business.” (Gov. Code, § 6250, added by Stats. 1968, ch. 1473, § 39, pp. 2945, 2946.) But public access is not unlimited. The act does not require disclosure of records that are “exempted or prohibited pursuant to . . . state law.” (Gov. Code, § 6254, subd. (k), added by Stats. 1968, ch. 1473, § 39, pp. 2945, 2947; see also § 6254, subd. (c) [exempting from disclosure “[personnel ... or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy”], added by Stats. 1968, ch. 1473, § 39, pp. 2945, 2946.)

A decade later, in 1978, the Legislature enacted Penal Code sections 832.7 and 832.8, as part of a statutory scheme mandating confidentiality of peace officer personnel records. (Added by Stats. 1978, ch. 630, §§ 5, 6, p. 2083.) Peace officer “personnel records” made confidential by subdivision (a) of Penal Code section 832.7 are defined in a companion statute, section 832.8. (Pen. Code, § 832.8, subds. (a)-(e), added by Stats. 1978, ch. 630, § 6, p. 2083, amended by Stats. 1990, ch. 264, § 1, p. 1535.) Subdivision (a) of Penal Code section 832.8 defines a personnel record as any file kept by the employing agency under the name of the officer and containing records relating to “[p]ersonal data, including marital status, family members, educational and employment history, home addresses, or other similar information.”

Thereafter, in November 2004, the voters, through the power of initiative, passed Proposition 59, which amended the California Constitution to affirm the “right of access to information concerning the conduct of the people’s business.” (Cal. Const., art. I, § 3, subd. (b)(1).) Added to the state Constitution was this provision: “Nothing in this subdivision . . . affects the construction of any statute ... to the extent that it protects [the state Constitution’s] right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.” (Cal. Const., art. I, § 3, subd. (b)(3).) The initiative also directed: “A statute, . . . including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.” (Cal. Const., art. I, § 3, subd. (b)(2).)

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As I stated at the outset, I have no quarrel with the majority’s reasoning and its conclusion that the California Public Records Act does not shield from disclosure the salaries paid to named public employees. I also agree with the majority that such disclosure applies to peace officers as well. But unlike the majority I would reach the latter conclusion based on the plain language of *348Penal Code sections 832.7 and 832.8, which govern the confidentiality of peace officer personnel records.

The majority reasons that disclosing the salaries of named public employees is permissible because public employees have no reasonable expectation of privacy as to their salaries in light of article I, section 1 of the California Constitution. (Maj. opn., ante, at p. 338.) In contrast, the majority observes, peace officers do have privacy protections created by statute.

Penal Code section 832.7, subdivision (a), makes confidential the “personnel records” of peace officers. Subdivision (a) of Penal Code section 832.8 states that files containing “[pjersonal data, including marital status, family members, educational and employment history, home addresses, or similar information” are personnel records. Responding to a claim that peace officer salaries fall within that provision’s definition of “personal data,” the majority concludes that the definition pertains to employees as they come to the job. (Maj. opn., ante, at p. 342.) That is, salary does not fall within “the types of personal information that commonly are supplied by an employee to his or her employer, either during the application process or upon employment.” (Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Cal.4th 278, 294 [64 Cal.Rptr.3d 661, 165 P.3d 462], fn. omitted.) In contrast, the majority observes, the salary being paid to a peace officer relates to current rather than prior employment. (Maj. opn., ante, at pp. 342-343.) My analysis differs.

I would simply follow the mandate of the initiative the voters passed in 2004 amending the California Constitution to, among other things, direct courts to construe narrowly any statute limiting the people’s right of access to public records. (Cal. Const., art. I, § 3, subd. (b)(2).) Penal Code sections 832.7 and 832.8 do limit public access to peace officer personnel records. But they are silent on the question of peace officer salaries, and they do not make officer names confidential. Therefore, an officer’s salary is not exempt from disclosure under the California Public Records Act. (Gov. Code, §§ 6253, subd. (b), 6254, subd. (k).) And the public interest in disclosure of a named officer’s salary is not clearly outweighed by any public interest in withholding disclosure. (Gov. Code, § 6255, subd. (a).) Accordingly, the annual pay of peace officers is subject to public disclosure.

With respect to disclosure of peace officer names, I find nothing in Penal Code section 832.8 that would bring that information within the category of “personal data” deemed confidential under that section; nor do I find any statutory provision exempting such information from public disclosure. Nondisclosure of peace officer names is permissible only when the public interest in withholding disclosure “clearly” outweighs the public interest in disclosure. (Gov. Code, § 6255, subd. (a).) I agree with the majority that the public *349interest exception to disclosure may apply to certain undercover officers, but that, as a general rule, peace officers do not have a privacy interest in the confidentiality of their names that outweighs the public interest in disclosing the names. (Maj. opn., ante, at p. 344.)