Temporal Changes in Informational Privacy Rights

by Bernard Bell — Wednesday, Feb. 20, 2019

Summary: California’s SB 1421 withdrew peace officers’ right of informational privacy in government files relating to officer-involved shootings and other alleged officer misconduct.  Does a presumption against retroactivity apply to the withdrawal of informational privacy rights such that SB 1421 presumptively applies only to investigative files regarding future alleged officer misconduct?  This post discusses the issue in the context of other temporal changes to informational privacy rights.

SB 1421

In March 2018, a police shooting in Sacramento, California sparked a national controversy.[1]  In California, it did more — it led to enactment of SB 1421, which made publicly-available investigative files regarding certain types of police misconduct.  Until that point, California appears to have given officers a right to prevent governmental entities from permitting access to such files.[2]  In adopting SB 1421, the California legislature noted that the people of California “vest peace officers with extraordinary authority,” including the authority to use deadly force, and “depend on peace officers’ faithful exercise of that authority.”[3]  Moreover, it declared:

“The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.”[4]

SB 1421 provided that “record[s] relating to the report, investigation, or findings of” four types of alleged police misconduct “shall be made available for public inspection pursuant to the California Public Records Act.”[5]  The categories of covered conduct were: (1) police shootings, (2) police use of force resulting in serious bodily injury or death, (3) police officer dishonesty directly relating to either the reporting, investigation, or prosecution of a crime or the investigation of the conduct of another officer, and (4) police officers’ sexual assaults on members of the public.[6]   Records in the latter two categories is accessible only if the allegation of misconduct has been substantiated.  The term “record” was broadly defined to include “investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports,” as well as all records compiled for review by prosecutors or disciplinary authorities.[7]

SB 1421 mandates redaction of certain personal information as well as complainant and witness identities.  It authorizes withholding the release of files relating to incidences of alleged police misconduct while the allegations are actively under investigation, if certain requirements are satisfied.[8]

The Legislature made SB 1421 effective January 1, 2019, but did not specify how its provisions would apply to existing files regarding police misconduct.  Legislators may have implicitly assumed that the statute applied to any files maintained at the time of a request, whether they involved alleged misconduct occurring before or after SB 1421’s effective date.[9]

SB 1421 has generated a strong reaction from some in California’s law enforcement community.[10]  Some law enforcement unions argue that California’s presumption against retroactive application of statutes,[11] akin to federal courts’ the Landgraf “clear statement” interpretive canon,[12] means that SB 1421 applies only investigation files regarding alleged misconduct that occurs after January 1, 2019.

The San Bernadino County Sheriff’s Employees’ Benefit Association (“San Bernadino SEBA”) petitioned the California Supreme Court for a writ of mandamus to preclude release of investigative files regarding misconduct that occurred before January 1.[13]  Several media interests, led by the First Amendment Coalition, the Los Angeles Times, and KQED, Inc., opposed issuance of a writ. [14]  The Court denied the petition.  But lawsuits have been filed in the lower state courts seeking injunctive relief.  Some courts appear to have entered temporary restraining orders prohibiting release of such information.[15]  One court has reportedly rejected the retroactivity argument.[16]

The California courts will have to decide whether application of SB 1421 to files regarding pre-January 1, 2019 misconduct qualifies as retroactive, and, if so, whether the presumption against retroactivity is rebutted by clear indications of legislative intent.  I will focus on the first question.[17]

Examples of Temporal Change in Information Privacy Rights

Society sometimes changes its views on the matters it considers private.  At times the government expands the realm of privacy, making confidential matters that were once public.  At other times the government contracts the realm of privacy, making public matters that were once confidential, or at least expanding accessibility of information to some who had previously lacked access.  Statutory provisions that contract the realm of privacy raise the type of  question SB 1421 raises.

Inducing or Mandating Disclosure

Consider the following situations.

(a)  A legislature decides to abolish some aspects of the psychotherapist-patient or accountant-client privileges, such that the privileges do not cover certain types of information shared in the context of those relationships.

(b)  A sanctuary jurisdiction stops treating information regarding the citizenship, immigration status, home and work address, or release date of undocumented aliens as confidential, and begins providing such information to immigration authorities upon request.

(c) Congress decides (i) to narrow the definition of confidential commercial or financial documents protected from disclosure under FOIA exemption 4 or (ii) to contract the realm of “return information” considered confidential under I.R.C. §6103.

(d) A new state law allows adopted children access to their adoption records, enabling them to discover the identity of their birth parents and, quite possibly, make efforts to contact them.[18]

(e) In 2016 Congress amended FOIA to make documents covered by the “deliberative process privilege” accessible after 25 years, for the first time placing a temporal limit on the privilege.[19]

These examples help illustrate two issues.  The first is whether informational privacy is a vested personal right, and second, if it is, should we consider application of new legislative provisions to files created before the statutory change “retroactive”?

FOIA provides an example of a statute that recognizes privacy interests but does not create privacy rights.  Exemptions 6 and 7(c) are expressly designed to protect records from disclosure when their release implicates individuals’ privacy interests.[20]  The deliberative process privilege also recognizes government employees’ interest in not having candid contributions to deliberative discussion made public.  At base, FOIA allows the Government to withhold information, but often does not require it to do so.[21]  This is generally the rule for exemptions 6 and 7(c),[22] and an even more universally true for invocation of the deliberative process privilege.  Exemption 4, on the other hand, has been construed to embody a right of companies to their confidential commercial information and trade secrets held in government files, such that entities can seek to enjoin government release of such information.[23]

California appears to have conferred upon law enforcement officers who have been investigated for misconduct an informational privacy right.[24]  Confidentiality can be forced upon the government by the law enforcement officers.[25]  While it is true that the protection is far from absolute, and release can be ordered upon certain findings issued at the end of specified proceedings,[26] such qualifications do not preclude recognition of an informational privacy right held by police officers.[27]

So assuming a right to informational privacy existed prior to SB 1421’s enactment, how should we conceptualize “retroactivity” in that context?  SB 1421 would apply only to requests made after the effective date of the statute and thus only to those government responses made after the statute’s effective date.  Is that sufficient for SB 1421 to be considered prospective in operation even though (1) the misconduct that is the subject of the files to be released took place before the statute’s effective date, and (2) the information was developed and placed in the file before the statute’s effective date?

In the first four examples above, the critical act on which the question of retroactivity should turn is the provision of information by the person entitled to informational privacy.  Conferral of a right of informational privacy is, at the least, intended to encourage an individual’s disclosure of information to and candid communications with others.  Such confidentiality provisions can also embody a recognition of the unfairness of government dissemination of personal information it coerced individuals into providing.  Thus, with respect to situation (a), patients provided their psychotherapist with information that they may well have withheld had the then-applicable statute provided no assurance of confidentiality.  The same is true of clients’ disclosures to their accountants.  With respect to situation (b), the undocumented alien may well not have interacted with government authorities or not been truthful in providing information were it not for assurances of confidentiality.

With respect to situation (c), at least when confidential business and financial information is voluntarily provided, such information may well be provided because the business had some assurances that the Government would protect such information from further disclosure.  Even with respect to some information provided involuntarily, the business might have chosen not to participate in a certain program requiring disclosure of its information had it known its commercial or financial information would be divulged.  With regard to tax information, confidentiality is promised in light of the intrusion into private affairs required by the tax system.  Indeed, it may reflect a sense that in fairness the government should treat as confidential personal information it coerces citizens into providing.

The legal changes hypothesized in situation (d), the change in the availability of birth record information, presents a more difficult situation.  Presumably the reasons for giving up a child for adoption are so compelling that the requirement of providing personal information would not deter a person from taking that option.  Nevertheless, birth parents may nevertheless gain comfort from knowing that they will remain anonymous while their children develop a new life with new parents.  Indeed, the provisions for anonymity may be part of an understanding that the birth parents will not seek to contact their birth children and seek to establish a relationship with them.

The above examples suggest that it is the point at which the person with an informational privacy right shares covered information with one under an obligation to keep it confidential that any such right vests.

Protecting Reputation Against Unsubstantiated Allegations Made to Authorities

At least one other privacy interest/right warrants discussion.  The following two examples should illustrate such concerns.

(f) Suppose Federal Rule of Criminal Procedure 6(e), regarding the secrecy of grand jury proceedings, is amended to allow release of grand jury materials regarding completed grand jury proceedings that targeted a person who, after the amendment’s effective date, is serving in an elective office or has announced his or her candidacy for an elective office.

(g) Suppose a state bar disciplinary committee changes its rules with regard to the confidentiality of complaints against lawyers.

The purposes of confidentiality in such contexts include preventing disclosure of unsubstantiated accusations and derogatory information ultimately found not to warrant further action.[28] Granted these are not the only interests furthered by confidentiality in such contexts.  At least with respect to the target of the investigation, such confidentiality provisions differ from the privacy-protective laws discussed earlier.  They do not seek to induce provision of information (or offer protections for information the government compelled individual to divulge).  Indeed, they do not seek to induce any action by the investigative target.

A state could confer upon the target of such confidential investigative procedures a privacy right, not just a privacy interest, in the confidentiality of such investigative records.  If so, should removal or modification of confidentiality provisions be considered “retroactive” if applied to records in existence prior to the change?

In some circumstances, making such information accessible after the matter has been closed would be fundamentally unfair.  Such a judgment would depend upon whether or not the allegation was substantiated, the fairness and thoroughness of the investigative process , how long ago the alleged misconduct occurred, and perhaps the seriousness of the alleged misconduct , inter alia.  For purposes of analysis, I will focus on the first two consideration listed above, which would appear to be the most critical in most circumstances.  If the allegations against an individual were found unsubstantiated or if the investigation simply involved receipt of a complaint with little further investigation, publicly releasing such information would seem fundamentally unfair.  If the allegation against the individual were found substantiated after a fair and thorough investigative process, releasing the investigative file would seem fair.

And indeed, if no change is made to the investigative/complaint regime when records of complaints and investigations are made open to the public, targets under investigation after the law making such records accessible goes into effect will have virtually the same concerns about the release of incompletely investigated and unsubstantiated allegations.  In short, such concerns about fairness are not amenable to a “bright line” test for retroactivity based on whether the records were created before or after a statute’s effective date, a more nuanced analysis is required.

SB 1421 does not appear to raise serious retroactivity concerns under the above analysis in most cases.  Two of the types of investigative files recently opened to public access are investigations of police shootings and uses of force that actually result in significant bodily harm.  Such investigations are likely to be quite thorough and while the officer’s actions may be justified and thus not warrant further action, the circumstances themselves establish the officer’s significant use of force.[29]  The other two types of files involve substantiated claims of sexual assault or dishonesty in official statements.  Presumably before such claims are sustained there is a thorough investigation, and sustained claims of serious misconduct provide a weak basis for an assertion the releasing information developed during the investigation is unfair.

Applying The Example’s Lessons to SB 1421

How does the analysis above apply to SB 1421?  Upon cursory analysis, the suggested resolution of the cases above might suggest that the peace officers are right, application of SB 1421 to records regarding incidents investigated before SB 1421’s effective date should be considered “retroactive.”  Even this conclusion would not mean that the officers should prevail, because the courts could find sufficient evidence in the legislative history and the circumstances surrounding SB 1421’s enactment to rebut the presumption.

But SB 1421 presents a more complex case than the first set of examples provided above.  The materials kept confidential under the pre-SB-1421 law and now made subject to public disclosure not only include information provided by the officers being investigated, but also information derived from entirely independent sources.  The latter would include statements of complainants, bystanders, and other officers on the scene.  The product of the investigative efforts of the law enforcement agency would largely fit into the latter category as well.

Changing privacy norms regarding information a person provides about himself or herself in confidence violate reasonable understandings that induced the provision of that information. That justifies considering such a change retroactive when applied to files existing when the statutory change takes effect. But that argument cannot be made with regard to changes in privacy norms regarding information about a person developed by others without need for that person’s consent.

To the extent that the information in an investigative file comes from the officer involved in the alleged misconduct, the right to informational privacy vests when the information is provided.  At least that is what the analysis of the first four examples set forth above suggest.  But information produced by investigative efforts separate from the information supplied by the officer under investigation should not be covered by the same principle.

Nevertheless, even the proposition that SB 1421 is presumptively inapplicable to statements made by an officer before the law went into effect seems intuitively wrong, at least to me.  But this intuition may rest on a fundamental discomfort with the concept that a public official who engages one of the most consequential exercises of authority, the power to use deadly force, could have ever been given an informational privacy right in the government files reflecting investigation of the incident by government personnel.  But profound disagreement with prior state policy is not a justification for courts to refuse to acknowledge preexisting law and the destruction of rights based on legislation embodying that preexisting policy. In other words profound disagreement with prior legislative judgments does not make the presumption against retroactivity inapplicable.

With regard to the concern regarding disclosure of unsubstantiated or insufficiently investigated allegations, as I note above, given the limited circumstances in which disclosures are mandated, SB 1421 should not be subject to a broad “retroactivity” attach based on such concerns.

Conclusion

Temporal change in privacy rights, in particular contraction of informational privacy rights, raises issues of retroactivity.  Such issues do not seem to arise as frequently as one might expect.  A contraction of informational privacy rights should be considered retroactive when it applies to information provided by the subject of the information before the statute’s effective date.

 

[1] Jose A. Del Real, 20 Shots in Sacramento: Stephon Clark Killing Reignites a Furor, N.Y. Times (March 28, 2019); Ryan Sabalow, et al. Police Work On Plan To Get Fans Safely Into Thursday’s Kings Game. Will They Show Up? Sacramento Bee (March 28, 2019).

[2] SB 1421, Legislative Counsel’s Digest (“Existing law requires any peace officer or custodial officer personnel records, as defined, and any records maintained by any state or local agency relating to complaints against peace officers and custodial officers, or any information obtained from these records, to be confidential and prohibits the disclosure of those records in any criminal or civil proceeding, except by discovery.”)  Indeed, the California Constitution provides that the “right of access to information concerning the conduct of the people’s business” does not “affect[] the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.”  Calf. Const, art. I, §3(b)(1) & (3).

[3] SB 1421, §1(a).

[4] SB 1421, §1(b).  The Legislature explicitly found that if furthered the people’s “right of access to information concerning the conduct of the people’s business” embodied in Article I, section 3 of the California Constitution because “[t]he public has a strong, compelling interest in law enforcement transparency because it is essential to having a just and democratic society.”  SB 1421, §4.

[5] Calif. Penal Code §832.7(b)(1)(as amended).

[6] Id.

[7] Calif. Penal Code §832.7(b)(2)(as amended).

[8] Calif. Penal Code §832.7(b)(5) to (b)(7)(as amended).

[9] San Bernardino County Sheriff’s Employees’ Benefit Association v. County of San Bernadino, Dkt No. S253115, Preliminary Opposition to Petition for Writ of Mandamus or Other Extraordinary Relief 20-25 (Calf. Sup. Ct. Dec. 28, 2018)(attached to the First Amendment Coalition et al.’s motion to intervene).

[10] The New York Times reported that the City of Ingelwood began destroying personnel records in advance of SB 1421’s effective date. Tim Arango, California Has a High Rate of Police Shootings.  Could a New Open Records Law Change That? N.Y. Times (Feb. 12, 2019).

[11] Myers v. Philip Morris Companies, Inc., 28 Cal.4th 828, 841, 50 P.3d 751, (2002)(“unless there is an ‘express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature … must have intended a retroactive application’”); Evangelatos v. Superior Court, 44 Cal.3d 1188, 1209 (1988) (“a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application”); see generally, Myers, 28 Cal.4th 839-845.

[12] Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).

[13] San Bernardino County Sheriff’s Employees’ Benefit Association v. County of San Bernadino, Dkt No. S253115, Verified Petition For Writ Of Mandamus Or Other Extraordinary Relief (Calf. Sup. Ct. Dec. 18, 2018).

[14] San Bernardino County Sheriff’s Employees’ Benefit Association v. County of San Bernadino, Dkt No. S253115, Proposed Intervenors’ Notice of Motion and Motion for Leave to Intervene (Calf. Sup. Ct. Dec. 28, 2018).

[15] San Bernardino County Sheriff’s Employees’ Benefit Association, Update On Legal Challenge To SB 1421; Arango, Could a New Open Records Law Change That?, supra.

[16] Best, Best & Kreiger, First Court Ruling on Merits of SB 1421 (Feb. 11, 2019).

[17] I have previously argued that making law retroactive is appropriate in some circumstances, Bernard W. Bell, In Defense of Retroactive Law, 78 TEX. L. REV. 235 (1999).

[18] https://www.mcall.com/opinion/yourview/mc-adoption-law-birth-certificate-hoard-yv–20171104-story.html ; see, generally, Caroline B. Fleming, The Open-Records Debate: Balancing the Interests of Birth Parents and Adult Adoptees, 11 Wm. & Mary J. Women & L. 461 (2005).

[19] FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 (2016) (amending Freedom of Information Act, 5 U.S.C.A. § 552(b)(5)); National Security Archive v. C.I.A., 752 F.3d 460, 464–65 (D.C. Cir. 2014)(Kavanaugh, J.) (deliberative process privilege is not temporally limited).

[20] 5 U.S.C.A. § 552(b)(6) & (7)(c)

[21] Chrysler Corp. v. Brown, 441 U.S. 281, 293–94 (1979); EPA v. Mink, 410 U.S. 73, 80 (1973) (citing Sen. Rep. No. 813, at 3(1965)).

[22] But that is not the case for personal information protected by the Privacy Act.  Sen. Rep. 114-4, 114th Cong. 1st Sess. 8 (Feb. 23, 2015) (accompanying FOIA Improvements Act).

[23] Chrysler Corp. v. Brown, 441 U.S. 281, 317-18 (1979)(trade secrets).

[24] People v. Mooc 26 Cal.4th 1216, 1227 (2001); Copley Press, Inc. v. Superior Court 39 Cal.4th 1272, 1300 (2006).

[25] See, City of Hemet v. Superior Court 37 Cal.App.4th 1411, 1430-31 (4th Dist. 1995).

[26] The media coalition argued that peace officers lacked a privacy right in their personnel records because the confidentiality was always conditional, and could be breached if certain procedures were followed. FAC Brief at 17-18.

[27]  The procedural due process doctrine recognizes the distinction between the creation of a “property” right and establishment of a process for its protection in recognizing that the procedural protections are not a part of the definition of the property right.  In other words the person asserting a procedural due process right does not have to “take the bitter with the sweet.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).

[28] Pittsburgh Plate Glass 360 U.S. 395, 405 & n. 5 (1959)(Brennan, dissenting) (cited approvingly in In Re Biaggi, 478 F.2d 489 n. 4 (2d. Cir. 1973))(grand jury secrecy); see United States v. Rose, 215 F.2d 617, 628-629 (3d Cir. 1954)(same); United States v. Amazon Industrial Chemical Corp., 55 F.2d 254, 261 (D.C. Cir. 1931)(same); Chronicle Pub. Co. v. Superior Court, 54 Cal.2d 548, 569, 354 P.2d 637, 647 (1960)(confidentiality of bar disciplinary investigations).

[29] This reasoning is somewhat analogous to the tort doctrine of res ipsa loquitor.  The occurrence of the event itself warrants further scrutiny of the actions of the person responsible for the harm.

One thought on “Temporal Changes in Informational Privacy Rights

  1. Ramsey Ramerman

    I think your intuition is correct. First, officers can be compelled to comply with investigations and respond to questions so there is no “inducement” issue here. Second, the public has a heightened interest in this information and the prior law that kept information from the public was a significant degradation of the public interest that should be narrowly confined. But this is a fascinating analysis on information privacy, thank you.

    Reply

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