TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
_________________________
:
OPINION : No. 87-107
:
of : JULY 30, 1987
:
JOHN K. VAN DE KAMP :
Attorney General :
:
ANTHONY S. DA VIGO :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE IRA REINER, DISTRICT ATTORNEY, COUNTY
OF LOS ANGELES, has requested an opinion on the following question:
What is the meaning of "law enforcement personnel" and "ongoing criminal
investigation" as those terms are used in Health and Safety Code section 25180.7?
CONCLUSION
"Law Enforcement personnel" refers to those employed by public agencies
to enforce the criminal law, including investigation, arrest, and prosecution. "Ongoing
criminal investigation" refers to the detection and prosecution of criminal conduct, which
is actually in progress throughout or during some portion of the prescribed 72-hour
period.
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ANALYSIS
On November 4, 1986, the voters of California approved the Safe Drinking
Water and Toxic Enforcement Act of 1986. This initiative measure, Proposition 65,
amended and added related sections to the Health and Safety Code. Section 1 of the
initiative contains the following declaration of purpose:
"The people of California find that hazardous chemicals pose a
serious potential threat to their health and well-being, that state government
agencies have failed to provide them with adequate protection, and that
these failures have been serious enough to lead to investigations by federal
agencies of the administration of California's toxic protection programs.
The people therefore declare their rights:
"(a) To protect themselves and the water they drink against
chemicals that cause cancer, birth defects, or other reproductive harm.
"(b) To be informed about exposures to chemicals that cause cancer,
birth defects, or other reproductive harm.
"(c) To secure strict enforcement of the laws controlling hazardous
chemicals and deter actions that threaten public health and safety.
"(d) To shift the cost of hazardous waste cleanups more onto
offenders and less onto law-abiding taxpayers.
The people hereby enact the provisions of this initiative in furtherance of
these rights." (Emphasis added.)
Among the added statutory provisions is section 25180.7. Subdivision (b) thereof
provides as follows:
"Any designated government employee who obtains information in
the course of his official duties revealing the illegal discharge or threatened
illegal discharge of a hazardous waste within the geographical area of his
jurisdiction and who knows that such discharge or threatened discharge is
likely to cause substantial injury to the public health or safety must, within
seventy-two hours, disclose such information to the local Board of
Supervisors and to the local health officer. No disclosure of information is
required under this subdivision when otherwise prohibited by law, or when
law enforcement personnel have determined that such disclosure would
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adversely affect an ongoing criminal investigation, or when the information
is already general public knowledge within the locality affected by the
discharge or threatened discharge." (Emphasis added.)
Under the provisions of subdivision (b), no disclosure by a government
employee of information concerning the actual or threatened discharge of hazardous
waste is required "when law enforcement personnel have determined that such disclosure
would adversely affect an ongoing criminal investigation." The present inquiry concerns
the significance of the terms "law enforcement personnel" and "ongoing criminal
investigation" which are not otherwise defined.
The principal rules of statutory interpretation were summarized in Evans v.
City of Anaheim (1982) 133 Cal.App.3d 853, 856:
"We begin with the fundamental rule that a court should ascertain
the intent of the Legislature so as to effectuate the purpose of the law. In
determining such intent the court turns first to the words themselves for the
answer. We are required to give effect to statutes according to the usual,
ordinary import of the language employed in framing them. If possible,
significance should be given to every word, phrase, sentence and part of an
act in pursuance of the legislative purpose; a construction making some
words surplusage is to be avoided. When used in a statute words must be
construed in context, keeping in mind the nature and obvious purpose of the
statute where they appear. Moreover, the various parts of a statutory
enactment must be harmonized by considering the particular clause or
section in the context of the statutory framework as a whole." (Citations
and quotations omitted.)
Further, it has been held that statutory language is reasonably certain if it can be
understood with the aid of reference to the dictionary. (People v. Spencer (1975) 52
Cal.App.3d 563, 565.)
At the inception it may be seen that the provisions under consideration
constitute an exception respecting the duty to disclose. Ordinarily, exceptions should be
narrowly construed. (Lacabanne Properties, Inc. v. Dept. Alcoholic Bev. Cont. (1968)
261 Cal.App.2d 181, 189; 70 Ops.Cal.Atty.Gen. 92, 97 (1987).) This rule is a corollary
to the rule of liberal construction to promote the legislative objectives. (Valdez v.
Federal Mut. Ins. Co. (1969) 272 Cal.App.2d 223, 227.) In the present situation,
however, the exception to the requirement of disclosure promotes the legislative objective
of prosecution for unlawful discharge of hazardous waste. (See, subdivision (c) of the
declaration of purpose, supra, "to secure strict enforcement of the laws controlling
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hazardous chemicals . . .") While the reference in section 25180.7, subdivision (b), to an
"ongoing criminal investigation" is not limited to investigations of crimes respecting
environmental pollution, it may be fairly inferred that an investigation which would be
adversely affected by a disclosure required under that section would normally involve
such a discharge. Since the exception promotes an express statutory objective, the usual
rule requiring a narrow construction of exceptions will not be applied.
LAW ENFORCEMENT PERSONNEL
The phrase "law enforcement personnel" occurs in the context of a criminal
investigation. Thus, while nearly every public agency is engaged in the administration or
enforcement of some statute, we perceive the principal function in question to be limited
to the prevention and detection of crime. Indeed, "law enforcement" in its traditional
sense refers to the enforcement of penal statutes. (State of California ex rel. Division of
Ind. Safety v. Superior Court (1974) 43 Cal.App.3d 778, 784.)
Further, our system of law commits law enforcement to duly authorized
public officers. While a private person may investigate crime and effect a citizen's arrest
under limited circumstances (see Pen. Code, § 837), the words "law enforcement
personnel" in the present context were intended, in our view, to refer only to those who
are employed by public agencies in positions involving the enforcement of the criminal
law. In this regard, the word "personnel" connotes a body of persons employed in a
particular professional or occupational service. (Cf. Webster's Third New Internat. Dict.
(1961) p. 1687.)
The word "enforcement" is defined in part as "the compelling of the
fulfillment (as of a law or order)." (Webster's, supra, at 751.) Enforcement of the
criminal law would encompass the investigation of crime, and the arrest and prosecution
of those suspected of crime. Consequently, law enforcement personnel would include
"peace officers" as defined in chapter 4.5, title 3, part 2 (commencing with § 830) of the
Penal Code. The term would also extend to public prosecutors, including the Attorney
General, district attorneys, and city attorneys having prosecutorial duties, as well as their
investigators. It is concluded that "law enforcement personnel" refers to those employed
by public agencies to enforce the criminal law, including investigation, arrest, and
prosecution.
ONGOING CRIMINAL INVESTIGATION
An "investigation" is appropriately described as "a detailed examination . . .
a searching inquiry . . . an official probe . . . ." (Webster's, supra, at 1189.) A criminal
investigation would embrace the detection and gathering of facts and evidence in
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preparation for, and would include the prosecution of crime. An activity is "ongoing" if
it is actually in progress or continuously moving forward. (Webster's, supra, at 1576.)
Nothing in Health and Safety Code section 25180.7 or in the ballot
pamphlet which accompanied its submission to the electorate suggests that the term
"criminal investigation" is limited to the investigation of crimes relating to environmental
pollution or to any other category of criminal conduct. Where the words of a statute are
clear, we neither add to them, alter them, nor insert qualifying provisions to conform to
an assumed intent or accomplish a purpose that does not appear on the face of the statute
or from its legislative history. (Gillett-Harris- Duranceau & Associates, Inc. v. Kemple
(1978) 83 Cal.App.3d 214, 219; 66 Ops.Cal.Atty.Gen. 217, 222 (1983).) Hence, an
ongoing criminal investigation would include an investigation of any criminal conduct,
which is actually in progress or continuously moving forward.
Health and Safety Code section 25180.7, subdivision (b), provides that a
designated government employee has a duty to disclose certain information within a
prescribed period of 72 hours. A breach of that duty cannot occur until the lapse of the
period. Consequently, if a criminal investigation is in progress prior to the lapse of the
period, it may provide the basis for a determination which would preclude the duty to
disclose. Of course, the determination itself must also precede ("when law enforcement
personnel have determined") the lapse. Thus, the ongoing investigation need not have
preexisted the date on which the information was obtained or the requisite knowledge as
to its probable injurious effects acquired, but may, for instance, have been precipitated by
the discovery. This interpretation is consistent with the apparent policy of preserving the
integrity of confidential criminal investigations. In this regard, it would not appear
significant, in terms of the potential adverse impact of a disclosure, when an investigation
was first initiated.
Once the determination has been made, the duty ceases. Nothing in the
statute suggests its revival, even though the investigation is closed or the determination is
rescinded prior to the lapse of the period. The statute contains no provision for
communication of any such determination or rescission to the designated government
employee, nor does it cast a burden of discovering any such rescission upon such
employee. Inasmuch as a violation of this rule gives rise to criminal liability (Health &
Saf. Code, § 25180.7, subd. (c)), the rule applies that penal statutes will not be given
application beyond their plain intent, so as to include offenses not coming clearly within
the import of their language. (People v. Carskaddon (1957) 49 Cal.2d 423, 427; and see
People v. Bradley (1983) 146 Cal.App.3d 721, 725; 20 Ops.Cal.Atty.Gen. 16, 17 (1952).)
Of course, the employee's awareness of a new or continued discharge may give rise to a
new duty.
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It must be emphasized, finally, that the determination both as to the
existence of an ongoing criminal investigation and as to the adverse effect thereon of a
disclosure, must be made by law enforcement personnel. Hence, such matters fall within
the considered judgment of such personnel. Of paramount concern to the designated
government employee is the ultimate fact that a determination has or has not been made.
If it has not, the duty remains. If it has, disclosure is neither required nor prohibited.
It is concluded that an ongoing criminal investigation is an investigation
which has been determined by law enforcement personnel to be in progress, regardless of
the time of its commencement, but prior to the lapse of the prescribed period.
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