Wouldn’t You Like to Know?
Jurisdictions split over how much information to provide to public safety employees prior to follow-up investigative interviews.
Since 2017, public agencies have arguably been required to provide subject officers with transcribed notes, reports and complaints prior to any follow up interviews, per the findings of the Fourth District Court of Appeal in the 2017 decision of Santa Ana Police Officers’ Association v. City of Santa Ana (“Santa Ana POA”). However, in a recent 2021 decision, Oakland Police Officers’ Association v. City of Oakland (“Oakland POA”),[1] the First District Court of Appeal addressed this same issue and decided public safety employees are only entitled to access to a recording of their prior interview.
For now, public agencies’ duties may vary depending on location. Depending on your jurisdiction, a public agency may be required to provide only the recording before a follow-up interview of the subject officer. In other jurisdictions, the agency may have an obligation to provide not only the recordings, but transcribed notes, reports and complaints as well.
In the 2021 decision in Oakland POA, the Oakland Police Department investigated five officers about a search and seizure matter. The Department cleared the officers of any wrongdoing, but, a civilian oversight agency with independent authority to investigate police misconduct, initiated its own investigation. Pursuant to Santa Ana POA, the attorney for the five officers requested copies of relevant reports and complaints prior to the officers providing statements to the oversight agency. The oversight agency refused to provide the documents requested and the First District found mostly in their favor.
This blog post discusses how every investigator should consider the landscape of the jurisdiction in which they are conducting an investigation, particularly before any follow-up interviews involving public safety officers.
What is an Officer Entitled to Prior to a Second Interview?
Government Code section 3303, subsection (g) provides that subject officers must receive access to interview recordings “prior to” any further interrogation at a later time. In a separate sentence, subsection (g) states that officers are entitled to any transcribed notes or any reports or complaints made by investigators “except those which are deemed by the investigating agency to be confidential.”
Required Release of Reports and Complaints Prior to Subsequent Interview
In 2017, the Fourth District Court of Appeal (covering San Diego, Orange, Imperial, Inyo, Riverside and San Bernardino counties) adopted a broad interpretation of this quasi-discovery provision. In Santa Ana POA, the Court found the legislature’s use of the words “prior to” in the first sentence of subsection (g), regarding recordings, also applied to the materials listed in the second sentence of subsection (g), which included transcribed notes, reports and complaints. This interpretation entitled an officer to copies of transcribed notes, complaints and reports before any subsequent interview. The court ruled that an officer’s right to reports and complaints before providing an additional statement, was “coextensive” with their right to discovery of recordings of the first interview.
Reports and Complaints Can Be Withheld if Deemed Confidential
On April 26, 2021, the First District Court of Appeal in Oakland POA disagreed with the Fourth District’s interpretation of the discovery provision in Santa Ana POA. The First District Court of Appeal (covering Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano and Sonoma counties) determined that the legislature’s omission of the words “prior to” in the second sentence of subsection (g) indicated the legislature did not intend to require transcribed notes, reports and complaints to be provided to officers before additional questioning.
Instead, the Court found the obligations of an investigating agency to disclose reports and complaints should be determined by whether the employer has deemed those materials to be confidential. The Court clarified that a public agency could deem transcribed notes, reports and complaints confidential if disclosure would interfere with a current, ongoing investigation.
The Court commented that requiring the release of reports and complaints to an officer, prior to an interview, would be inconsistent with the plain language of section 3303(g). Also, it would undermine an important purpose of POBOR – to ensure investigations into officer misconduct are done with the “seriousness, diligence, and fairness that is required of these positions of public trust.”[2]
Key Takeaways
Until the California Supreme court decides to weigh in on this issue, investigators and public agencies will need to consider their location when determining what information to provide to subject officers prior to a subsequent interview.
For agencies within the First District Court of Appeal’s jurisdiction, investigators must determine whether disclosure of any reports, complaints or transcribed notes would interfere with a current, ongoing investigation and deem those documents to be confidential. If the agency is within the Fourth District Court of Appeal, investigators should continue to provide transcribed notes, complaints and reports prior to subsequent interviews, consistent with the holdings in the Santa Ana POA case. If an employer falls in neither jurisdiction, they can choose to follow the case law outlined in Oakland POA.
Strategies to Consider
Investigators should be sure to reserve sufficient time for interviews of public safety officers in order to avoid unnecessarily scheduling a second follow-up interview due to time limitations. If an officer requests a follow-up interview after the initial interview, investigators should consider whether they have any follow-up questions. In some situations, it may be more practical to have the officer submit any additional evidence without conducting a subsequent interview.
[1] Oakland Police Officers Association v. City of Oakland (April 26 2021)__ Cal. App.5th___)
[2] Oakland POA at 31.
