LEGAL
PRIVACY ISSUES
ARE VERY COMPLEX
By Martin J. Mayer, General Counsel
California Police Chiefs Association
Over the past few months, the United States Supreme Court, the California Supreme
Court, and the California Court of Appeals have each issued significant decisions
affecting privacy rights of peace officers, as well as members of the public.
One case deals with privacy rights
of officers involved in shootings which
result in serious injury and/or death; the
second case deals with the public’s right
to privacy in the information contained in
new, very complex, “smart” phones; and,
finally, the most recent case addresses who
can access personnel files of peace officers
which have been deemed, by the State of
California, to be private.
Officer Involved Shootings
On May 29, 2014, the California
Supreme Court on a 6-1 vote, in the case of
Long Beach Police Officers’ Association v. City
of Long Beach, held that the public interest
in disclosure of the names of officers in an
officer involved shooting (OIS) will, as a
general rule, outweigh the privacy interest
officers may have in having their names
withheld. The Court began by observing
that “access to information concerning
the conduct of the people’s business is a
fundamental and necessary right of every
person in this state.”
Generally, it is the responsibility of
the public entity to demonstrate that any
record it seeks to withhold from the public
falls within a specific exemption, otherwise
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it shall be made public. At the same time,
however, the Court noted that California
Penal Code §832.8(f) applies confidentiality to any information in a peace officer
personnel file where disclosure “would
constitute an unwarranted invasion of [a
peace officer’s] personal privacy.”
In a case such as this one, which
concerns officer-involved shootings, the
Court found the public’s interest in the
conduct of its peace officers is particularly
great because such shootings often lead
to severe injury or death. The Court also
noted that the balancing of interests (the
public’s right to know versus the officer’s
right of privacy) will generally weigh
in favor of disclosure, and that “[v]ague
safety concerns that apply to all officers
involved in shootings are insufficient to
tip the balance against disclosure.” A mere
possibility of endangerment does not clearly outweigh the public interest in access to
such records.
As such, the Court held that the
names of officers involved in a shooting
will generally be subject to disclosure
upon request, unless a particularized, and
case specific, showing can be made that
non-disclosure is necessary to protect the
officer’s safety and outweighs the public
interest in disclosure.
Right of Privacy to Information on
Smart Phones
On June 25, 2014, the United States
Supreme Court, in the case of Riley v.
California and United States v. Wurie, ruled
unanimously (9-0) that “police generally
may not, without a warrant, search digital
information on a cell phone seized from an
individual who has been arrested.”
In 1969, the Court, in Chimel v.
California, 395 U.S. 752, established the
groundwork for most of the existing law
involving searches incident to an arrest.
“When an arrest is made, it is reasonable
for the arresting officer to search the
person arrested in order to remove any
weapons that the latter might seek to
use in order to resist arrest or effect his
escape. In addition, it is entirely reasonable for the arresting officer to search for
and seize any evidence on the arrestee’s
person in order to prevent its concealment
or destruction. . . .”
The Court discussed exceptions to the
warrant requirement and stated, “these