Photographs of Police Officers at issue in California Public Records Act lawsuit

The publisher of the Palo Alto Free Press has filed a California Public Records Act (CPRA) lawsuit to obtain the photographs of the seven Redwood City Police Department officers involved in the shooting and killing of a man in Redwood City on December 30, 2017.

The author of this blog is the attorney in the matter.

As the petition states, the Redwood City Police Department refuses to provide photographs of the officers, citing three exemptions to the CPRA: the privacy/personnel records exemption in Cal. Gov’t Code § 6254(c), the “otherwise prohibited by law” exemption in Cal. Gov’t Code § 6254(k), and the “catch-all” exemption in Cal. Gov’t Code § 6255(a), which provides that records can be withheld if the public interest in non-disclosure clearly outweighs the public interest in disclosure.

Despite the Redwood City Police Department’s assertion that the photographs can be lawfully withheld from the public, photographs of three of the officers appear as part of an awards ceremony posted on the Department’s website, and the Department regularly posts photographs of officers on its twitter and facebook feeds.

Previous cases have established that, generally, the identity of police officers are disclosable public records (Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Cal.4th 278) and that, generally, the identity of officers involved in shootings must be disclosed upon request. (Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59.) Under the CPRA, when an agency releases records or information, it waives the ability to later claim that information is exempt from disclosure. Cal. Gov’t Code § 6254.5.

While a provision of the Police Officer's Bill of Rights (POBRA), prevents agencies from disclosing officer photographs to the media when an officer is "under investigation and subject to interrogation" (Cal. Gov. Code 3303(e)), it is unsettled whether that provisions makes records exempt under the CPRA if the agency has previously disclosed the photographs. 

This lawsuit argues for an important step towards police transparency by asserting that if law enforcement agencies use officer photographs for positive publicity purposes, the agencies must also disclose photographs upon request under the California Public Records Act.