Employment Relations Board (“PERB”) issued a decision upholding the dismissal
of the California State University Employees Union’s (“CSUEU”) unfair practice
charge filed against the Trustees of the California State University –
Stanislaus (“CSU”) seeking the disclosure of peace officer personnel records
outside of the Pitchess process. On behalf of the Statewide University
Police Association (“SUPA”), Mastagni Holstedt partner Kathleen Mastagni Storm
filed an informational brief in support of denying the appeal. PERB upheld the
dismissal of the charge without leave to amend.
Facts
CSUEU represented an employee who
submitted a formal complaint alleging a peace officer in the SUPA bargaining
unit engaged in harassment, disparate treatment, and created a hostile work
environment. At CSU’s request, the Stanislaus County Sheriff’s Department
(“SCSD”) conducted an independent investigation and created a report. SCSD
provided the investigative report to the CSU Stanislaus Chief of Police, and
thereafter the Chief of Police forwarded it to CSU human resources
representatives. The complaining employee was then given notice that her
allegations were not sustained.
Several months later, CSUEU
submitted a request for information to CSU seeking, among other things, a copy
of the investigation report. CSU responded to the request stating that “per
California Penal Code Section 832.7, [the University] is precluded from
distributing copies of SCSD’s report on the matter, absent a court order.”
Thereafter, CSUEU asserted that CSU must meet and confer with CSUEU over the confidentiality
concerns involved in providing the report and that a failure to do so would
provide the basis for an unfair practice charge. After a series of responses
from CSU and CSUEU, in which both parties reaffirmed their initial positions,
CSUEU filed an unfair practice charge with PERB alleging CSU violated the
Higher Education Employer-Employee Relations Act (“HEERA”) when it refused to
disclose the investigative report or meet and confer with CSUEU to address its
confidentiality concerns.
The PERB Office of the General
Counsel (“OGC”) dismissed the charge for failure to state a prima facie case. PERB’s
OGC determined that the report was confidential pursuant to Penal Code section
832.7, and that the report could only be provided through the discovery process
described in Evidence Code sections 1043 and 1046. CSUEU appealed the
dismissal. In its review of the appeal, PERB concluded that CSU did not violate
HEERA by refusing to provide the investigative report to CSUEU.
An exclusive representative is
presumptively entitled to information that is necessary and relevant
in discharging its representational duties or exercising its right to represent
bargaining unit employees regarding terms and conditions of employment within
the scope of representation. (Contra Costa Community College District (2019)
PERB Decision No. 2652, pp. 16-17; Petaluma City Elementary School
District/Joint Union High School District (2016) PERB Decision No. 2485, p.
17.) PERB has held that investigatory reports relating to hostile work
environment claims impacting bargaining unit members are presumptively
relevant. However, if such reports contain private information of third parties,
PERB applies a balancing test that weighs a union’s need and interest in
obtaining the information against the employer or third party’s privacy and
confidentiality interest. Typically, an employer may not outright refuse to
furnish information based on privacy concern. Instead, the parties must meet
and confer in good faith to reach accommodation such as redactions, limiting
use of materials, and prohibiting public disclosure.
Yet, this right to information is
further limited if such requested information is protected by the
confidentiality of California Penal Code Section 832.7. Such records are
“confidential” and “may not be disclosed” save for the procedures outline in
the Pitchess statutory scheme. The Pitchess statutes reflected
the state Legislature’s intent to balance the discovery of requested
information with an officer’s confidentiality interest.
Penal Code Section 832.7 provides
that the personnel records of peace officers…and records…or information
obtained from these records, are confidential and shall not be disclosed in any
criminal or civil proceeding except for discovery pursuant to Section 1043
and 1046 of the Evidence Code. (Pen. Code, § 832.7(a).) This statute
establishes a general condition of confidentiality that applies beyond criminal
and civil proceedings and cannot be circumvented by third parties invoking the
California Public Records Act. (Copley Press v. Superior Court (2006) 39
Cal.4th 1272, 1286.)
According to Penal Code Section
832.7, such confidential information may only be subject to discovery pursuant
to Evidence Code Sections 1043 and 1045. The statutes establish procedures for
discovery which require a party seeking the records to follow the Pitchess procedures.
Such procedures include, among other things, a noticed motion, identification
of the proceeding in which disclosure is sought, a description of the records,
a time and place at which the motion for disclosure shall be heard, and
affidavits showing good cause for the discovery sought. If the court finds
“good cause” for the disclosure of the records, the court ruling on the motion
must examine the records in camera and determine whether there are portions of
the record to be excluded from disclosure.
CSUEU
Attempted to Circumvent the Pitchess Procedures for Disclosure
CSUEU refused to follow the Pitchess
procedures; instead insisting the report be disclosed under HEERA and that CSU
meet and confer over any privacy concerns.
PERB rejected the argument, explaining that because the peace officer
personnel records are confidential pursuant to Penal Code 832.7, the requirement
for CSU to meet and confer over privacy interests does not apply. PERB went on
to find that on the facts of this case, meeting and conferring over CSUEU’s
request for information would have been futile.
Evidence Code Sections 1043 and 1045 only permit discovery in the context of a
pending hearing. CSUEU did not request the investigation report in the context
of any pending action. Rather, it sought the report for the general purpose to
better represent its members in future matters. The Supreme Court and PERB find
that Penal Code Section 832.7 would be circumvented if it did not apply in the
context of a pre-dispute information request. Therefore, CSUEU would need to
comply with the Pitchess statutes to obtain a copy of the report.
personnel record’s exemption from disclosure under CPRA does not render it
entirely privileged under HEERA. However, the procedures for disclosure under
HEERA must maintain the balance that the Legislature intended with the Pitchess
statutes. Still, compliance is not possible without a pending proceeding in
which the requesting party may file a motion to establish good cause to receive
the records and a hearing officer can conduct an in-camera review prior to
disclosure.
representative is not entitled to receive records covered by Penal Code Section
832.7 absent compliance with the Pitchess procedures. Given that CSUEU
did not adhere to the requisite procedures and there was no pending hearing,
the dismissal of the unfair practice charge was upheld. An exclusive
representative may only obtain records deemed confidential under Penal Code
Section 832.7 by invoking Evidence Code section 1043 in any hearing or
arbitration where they are material.
of Penal Code section 832.7 and prevents an exclusive representative or
employee from undermining the Pitchess procedures through a request for
information submitted before any action was pending before a hearing officer.
PERB was firm in its refusal to issue a “…complaint alleging failure to provide
information merely as a mechanism to assign an ALJ and allow a Pitchess motion
to be filed; [finding] such bootstrapping falls outside the substantive and
procedural boundaries of the confidentiality exception explained in the
above-referenced jurisprudence.”
(California State University Employees Union v. Trustees of the
California State University (Stanislaus) (2025) PERB Decision No. 2940-H at p.
16.)
