Tentative Ruling in Pike v. University of California Board of Regents, issued March 15, 2012.

Note: This is a copy of the ruling retrieved from the Alameda County Superior Court website that the court posted in its entirety in a menu of case documents. It's not an official copy of the order (for instance, is not formatted as a legal document, does not carry full information on the case title, and does not include the signature of the judge issuing the order, Evilio Grillo. As noted in the ruling's final paragraph, this order is stayed until April 2, 2012, to allow the plaintiffs in the case (lawyers for UC Davis Police Sgt. John Pike and others) to appeal the order. This Tentative Ruling is issued by Judge Evelio Grillo. The motion of Plaintiffs John Pike and The Federated University Police Officer's Association (collectively "Petitioners") for a preliminary injunction came on regularly for hearing on March 16, 2012, in Department 31 of this Court, Judge Evelio Grillo presiding. Petitioners, appeared by counsel John Bakhit, of Lackie, Dammeier & McGill. Defendant the Regents of the University of California (the "Regents") and Opposing Party appeared by counsel Nancy Sheehan of Porter/Scott. Intervener the American Civil Liberties Union of Northern California (the "ACLU") appeared by counsel Michael Risher. The Court having considered the pleadings and arguments submitted in support of and in opposition to the motion, and good cause appearing, it is hereby ORDERED that: (1) the motion of the Petitioners for a preliminary injunction is DENIED, and (2) the motions of the Petitioners and the Regents to seal portions of the record are DENIED. BACKGROUND FACTS. Starting in mid-November 2011, there were protests at UC Davis regarding tuition and other issues, and on November 17, 2011, students put up an Occupy encampment at the UC Davis Quad. By the next day, the UC Davis administration had decided to remove the

encampment and to that end the administration directed the UC Davis Police Department ("UCDPD") to take action. In the course of interacting with the demonstrators at the Quad, an officer or officers used pepper spray on several of the demonstrators. The administration's decision and efforts to remove the encampment, including specifically the UCDPD's use of pepper spray (collectively the "Incident"), was both widely reported and widely criticized. Following the Incident, UC Davis placed three police officers on administrative leave and commenced an Internal Affairs investigation. UC Davis also organized a task force (the "Task Force") headed by Cruz Reynoso to review the Incident and to make recommendations regarding police procedures, command protocols, campus policies, and oversight structures. UC Davis also retained Kroll Associates, Inc. as an independent contractor to collect information and to prepare a report regarding the Incident and to make policy level recommendations. The resulting combined Reynoso/Kroll Report (collectively the "Report") is the subject of this motion. Kroll's investigation was separate from any Internal Affairs ("IA") investigation by the UCDPD. The Kroll report states, "[T]he Kroll Team has had virtually no contact with the Internal Affairs (IA) investigative team. The IA investigative team has not provided or shared any information with the Kroll team, including a witness list." (Kroll report page 6 fn 1.) The Kroll investigation obtained documents from UC Davis, but the Kroll report states that there were "records withheld [by UC Davis and/or UCDPD] on the basis of peace officer personnel record provisions." (Kroll report page 7.) UC Davis has not shared any documents generated in the IA process with Kroll or with the Task Force. (Meyer Dec., para 6.) The Kroll investigation interviewed police officers who were witnesses to the Incident under an agreement with counsel for those officers that the officers would be given administrative immunity and that they could not be subject to discipline for anything they revealed during those interviews. (Bakhit Dec., paras 8-9; Woodall Dec., para 2.) Kroll

did not interview police officers who were the subject of IA investigations. (Woodall Dec., para 2.) The Kroll report states, "As personnel investigations are deemed confidential, under California law, this report does not include information obtained from any interview of any officer whose use of force is being reviewed or who has been deemed a potential subject of discipline; only witness officers have been interviewed." (Kroll report page 6 fn 1.) The Kroll report is extensive and detailed. The report collects and contains facts regarding all aspects of the Incident, from the how the administration's decision-making process worked, to how the administration communicated instructions to the UCDPD, to the content of those instructions, to how the UCDPD planned for clearing the Quad, to how the UCDPD supervised officers at the Quad, to the actions of individual officers at the Quad. The Kroll report does not recommend any discipline for any police officer. The Kroll report states, "Kroll's report does not address the issue of discipline to be imposed, if any, on individual officers for any use of force that occurred on November 18." (Kroll report page 6 fn 1.) The Kroll report makes recommendations regarding decision-making by the UC Davis administration, the organization of the systemwide UC police force, and proposed training for UC police officers. Kroll makes no recommendations regarding any individual person or police officer. The Reynoso report, which attaches the Kroll report, reviews the factual summary in the Kroll report, makes conclusions regarding responsibility for the Incident, and makes policy recommendations. (Reynoso report page 5.) The Reynoso report's factual summary is entirely derivative of the Kroll report. (Reynoso report page 6.) Regarding assigning responsibility for the Incident, the Reynoso report assigns responsibility to the UC Davis administration and to members of the UCDPD. The report considers various decision points in the Incident and describes how and why those decisions were made by specific individuals. (Reynoso report pages 10-16 (deficiencies at the administrative level) and pages 17-20 (deficiencies in the police operation).) The report then assigns

responsibility to specific individuals, including police officers, for various specific decisions. (Reynoso report pages 21-25.) The Reynoso report makes policy recommendations for the UC Davis administration, for the UCDPD, for the entire UC system, and for the UC Davis campus community. (Reynoso report pages 26-29.) The Reynoso report states, "The Charge to the Task Force did not include requesting recommendations for disciplinary action." (Reynoso report page 6.) Consistent with its charge, the Reynoso report does not recommend any disciplinary action. MOTION OF THE PETITIONERS FOR A PRELIMINARY INJUNCTION. Petitioners seek a preliminary injunction to prevent the Regents from disclosing the Report to the public. "[T]he question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief." (White v. Davis (2003) 30 Cal.4th 528, 554.) The party seeking an injunction "bears the burden of presenting facts which show a reasonable probability that he will succeed on the merits." (Citizens for Better Streets v. Board of Sup'rs of City and County of San Francisco (2004) 117 Cal.App.4th 1, 6.) THE LIKELIHOOD THAT THE PLAINTIFF WILL PREVAIL ON THE MERITS. STATUTORY BACKGROUND: Petitioners assert claims under Penal Code 832.7, alleging that the Regents cannot disclose the Report because the Report either (1) contains information equivalent to that in a personnel file as defined under Penal Code 832.8 or (2) is equivalent to an investigation in response to citizen complaints under Penal Code 832.5. Petitioners have standing to assert a claim because section 832.7 has been held to create a confidentiality privilege that can be asserted by either an agency or by individual officers. (City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1430.) Petitioners have a private right of action under section 823.7 for injunctive relief against the Regents to preclude the Regents from disclosing information subject to section 832.7 absent a request for discovery in criminal or civil proceedings or a Public

Records Act claim that would be subject to Government Code 5250 et seq. Notwithstanding the plain language of the statute, the Petitioners can assert a section 832.7 claim even though there has been no request for the information in a criminal or civil proceeding. (City of Richmond v. Superior Court (1995) 32 Cal.App.4th 1430, 1440.) Petitioners also assert claims under the California's Constitutional right to privacy. California Constitution, Article I, section 1. CLAIM UNDER PENAL CODE 832.7. Elements of the claim. To prevail on their claim under Penal Code 832.7, Petitioners must demonstrate that the Report is or includes information from either (1) Peace officer personnel records or (2) records maintained pursuant to Section 832.5. In evaluating the probability of success on the merits, the court applies Penal Code 832.7 rather than the arguably more pro-disclosure analysis in the Public Records Act. (City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1425-1426.) Large Portions of the Report Cannot Reasonably be Construed to be Covered by Penal Code 832.7. Penal Code 832.7 by its terms applies to " Peace officer or custodial officer" records. The Report concerns actions by the both UC Davis administration and the UCDPD, but only those portions of the Report that concern members of the UCDPB are arguably protected by section 832.7. THE COURT DIRECTS THE PARTIES to meet and confer before the hearing on March 16, 2012, to identify those portions of the Report that they can agree are not subject to section 832.7. The court's review suggests that the following portions of the Report are outside the scope of section 832.7 because they concern the actions of the UC Davis administration rather than the actions of UCDPD officers: Reynoso report-Introduction, Background, Section I, Section III, A, B, C, and Section IV. Kroll report Restricted Use Warning, Section 1, Section 2, Section 3 (excluding the 3 full paragraphs on page 11), Section 4, Section 5, Section 7 (excluding 7.4 and 7.5), and Section 8. The court is inclined to order that the Regents is permitted to release those portions of the Report that are not arguably implicated by section 832.7 immediately after the hearing on

April 16, 2012 [sic]. The Report is not "Peace officer personnel records." "Personnel records" means "any file maintained under that individual's name by his or her employing agency and containing records relating to any of the following: ... (d) Employee advancement, appraisal, or discipline. ... (e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties. ... (f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy." Penal Code 832.8. Petitioners have demonstrated a "reasonable probability" of success in proving that the Report is a "file" that is subject to Penal Code 832.8. Although the statute refers to "any file maintained under the individual's name," the application of the statute does not depend on how an entity elects to organize its records. Berkeley Police Ass'n v. City of Berkeley (2008) 167 Cal.App.4th 385, 405 fn 21. The court must examine the origin of the information in the Report and the resulting content rather than the format in which it is presented or the location where it is kept. Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 899-901. The Report is a "file" that includes a summary of the Task Force's investigation of how UC Davis and the UCDPD planned for what became the Incident and how the UCDPD operated in the course of the Incident. Petitioners have demonstrated a "reasonable probability" of success in proving that the Report was created or maintained "by his or her employing agency." The limitations of Penal Code 832.6 apply even though UC Davis did not conduct the investigation internally and instead created the Task Force, which then relied on Kroll's investigation. What is highly significant later in the analysis is that although UC Davis appears to be the employing agency, Kroll and the Task Force were not provided with confidential or privileged information internal to UC Davis or the UCDPD and instead relied entirely on documents and interviews that could have been obtained by journalists or members of the public.

Petitioners have not demonstrated a "reasonable probability" of success in proving that the Report includes information obtained from Peace officer personnel records. The Report expressly states that there were "records withheld [by UC Davis and/or UCDPD] on the basis of peace officer personnel record provisions." (Kroll report page 7.) In this regard, the Report is distinguishable from the narrative summary report at issue in Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 896-897, which included information from "the Department's internal affairs investigation report, the report of the Department's shooting review board, and the Department's homicide report. Petitioners have not demonstrated a "reasonable probability" of success in proving that the Report is itself a personnel record under Penal Code 832.8(d), which states that personnel records include records relating to "Employee advancement, appraisal, or discipline." The Report does not appraise individual officers for employment purposes or recommend employment discipline. Petitioners have not demonstrated a "reasonable probability" of success in proving that the Report is itself a personnel record under Penal Code 832.8(e), which states that personnel records include records relating to "Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties." The court interprets this section as applying only to complaints made to an agency about individual officers and any resulting internal investigations. The court reads section 832.8(e) to refer to complaints about individual officers. Although a file need not necessarily be maintained under an individual's name to be protected, the general portion of the section states that it concerns files "maintained under that individual's name." This indicates that the sections 832.8's subsections are limited to information that an agency collects and maintains about individual officers. Subsections 832.8(a), (b), (c), and (d) all concern individual information, suggesting that section 832.8(e) relates to complaints about individual officers. In re Corrine W. (2009) 45 Cal.4th 522, 531 ("Ejusdem generis instructs that "when a statute contains a list or catalogue of items, a court should determine the meaning of each by reference to the

others, giving preference to an interpretation that uniformly treats items similar in nature and scope."). The Report is a response to and is designed to address general complaints about police procedures or practices and does not include or address complaints about individual officers. Therefore, the Report does not relate to "complaints" as that word is used in section 832.8(e) because the Report concerns police procedures or practices and does not concern complaints about individual officers. The court reads section 832.8(e) to refer to internal investigations such as those that would be performed by a human resources or internal affairs department using information internal to the employing agency. Section 832.8 defines "personnel records" and lists categories of information that are commonly retained by employers and are recognized as part of confidential employment personnel files. Relying on the principle that terms or phrases must be interpreted in context, the investigations at issue in section 832.8(e) are reasonably limited to internal employer investigations that use internal information. The court cannot accept Petitioners' argument that if information is listed in section 832.8(a)-(f), then section 832.7 prohibits an employing agency from disclosing the information even if the agency obtained the information from a public source. Under the Officer's proposed interpretation, if a university or city investigating police conduct or practices generally (and not the actions of individual officers) compiles public information regarding that conduct or particular practice, then section 832.7 could cloak any resulting report even though the underlying information is freely available to the public. It cannot be the law that a public entity cannot collect, compile, and distribute public information about its police department without running afoul of section 832.7. There are many analogous circumstances where the legislature or the courts have determined that public information does not lose its public character because it is maintained or received by a person or entity that could keep the information private if it had never been in the public domain. For example, if information has been independently

derived information from a publically available source then a party cannot prevail on a claim for misappropriation of a trade secrets based on the fact that it maintains the same information in confidence. Civil Code 3426.1(a). If an attorney has received information from a public source then she may not treat the information as protected on the ground that she received the same information in a protected attorney-client communication. People v. Allen (1941) 47 Cal.App.2d 735, 745-746; Hunter v. Watson (1859) 12 Cal. 363, 367. Finally, in a criminal case evidence is admissible if the prosecution obtained or would have inevitably obtained the information from a lawful source. In re Angel R. (2008) 163 Cal.App.4th 905, 909 fn 3; People v. Huston (1989) 210 Cal.App.3d 192, 221. The Report is a compilation of public information that would have been available to an investigative journalist or member of the public who took the time and expended the effort to make a Public Records Act request, review videos posted on YouTube and elsewhere, and locate and interview witnesses. UC Davis directed police officers who were not subject to investigation by IA or otherwise to cooperate with the Kroll investigation, but that is no different from UC Davis directing any of its employees to provide information to a journalist. The police officer statements are not "compelled statements" under Gov't Code 3303 because the interviewed officers were not the subject of any investigation and their statements in the interviews could not lead to any discipline. The Report is not a record maintained pursuant to Section 832.5. Penal Code 832.5 refers to procedures for investigating complaints by members of the public against the Police department. The court assumes that covered documents can include information where the complaint was generated by the agency and not by a member of the public. The Petitioners have not demonstrated a "reasonable probability" of success in proving that the Report is a file maintained pursuant to section 832.5. Section 832.5 concerns specific procedures that police departments are required to establish and follow to address citizen complaints. The Report was not prepared as a result of a complaint lodged under a section 832.5 procedure and the Task Force's investigation was not conducted pursuant to a section 832.5 procedure.

CLAIM UNDER THE CONSTITUTIONAL RIGHT TO PRIVACY To establish a claim for invasion of privacy, Plaintiffs "must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40. The Petitioners have not established a reasonable probability that they can demonstrate a legally protected privacy interest in some information in the Report. "Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court." Hill, supra, at 40. Because the Petitioners have not established a reasonable probability that Penal Code 832.7 precludes the disclosure of the Report, they have not established a reasonable probability that they have a legally protected privacy interest. The court notes that the privacy rights of the Petitioners under Penal Code 832.7 are consistent with those in exceptions to the Public Records Act. Gov't Code 6254(c) and 6255. Plaintiffs have not established a reasonable probability that they can demonstrate a reasonable expectation of privacy in the circumstances. The "reasonable expectation of privacy in the circumstances" analysis requires the court to consider the factual circumstances and to evaluate the competing interests. At present the Petitioners can have little or no expectation of privacy regarding the Incident given that the Incident has been the subject of public scrutiny and videos of the demonstration and the UCDPD's use of pepper spray have "gone viral" on the internet. This is the status quo from which the court evaluates the reasonable expectation of privacy. "The countervailing interest "need not be constitutionally based," as "[e]ven nonconstitutional interests can outweigh constitutional privacy interests." Marken v. Santa Monica-Malibu Unified School Dist (2012) 202 Cal.App.4th 1250, 1271. "One such interest, grounded in both the California Constitution and the [California Public Records Act], is the "strong public policy supporting transparency in government." Id. at 1271-1272. As police officers paid by the public and authorized by the public to exercise authority over individual members of the public, the Petitioners could not reasonably expect that

reports of their actions in the news media, the internet, and other public sources of information would be shielded from public scrutiny by a statute whose purpose is to protect the confidentiality of personnel records and information. THE RELATIVE BALANCE OF HARMS REGARDING INTERIM RELIEF. Plaintiffs might suffer some harm if their allegedly confidential information is erroneously disclosed before the case can be adjudicated on its merits. The harm would consist largely of a loss of personal privacy and the possibility of "unjustified embarrassment or indignity." Hill, 7 Cal.4th at 35. This intangible loss would be immediate and irreparable. "[O]nce privileged matter has been disclosed there is no way to undo the harm which consists in the very disclosure." Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516. There is the potential that the Petitioners might be subject to harassment and that their safety might be threatened. That potential harm is, however, speculative in nature. Commission On Peace Officer Standards And Training v. Superior Court (2007) 42 Cal.4th 278, 302; Long Beach Police Officers Assn. v. City of Long Beach (2012) 203 Cal.App.4th 292, 877, 884. Furthermore, the court notes that the Incident has already received substantial publicity and that the Report is replete with footnotes that reference citations to the internet, newspapers, and other forms of media. Starting from a situation where a photo of the Incident has already become an internet meme, there is little potential for incremental harm to the Petitioners from the release of a report that consists largely of information and photographs that have already gone viral. The Regents will suffer substantial harm if they cannot disclose and discuss information and recommendations regarding the incident at issue until the case can be adjudicated on its merits. There is a "strong public policy supporting transparency in government." Marken v. Santa Monica-Malibu Unified School Dist (2012) 202 Cal.App.4th 1250, 1271. Specifically, "[t]he public interest in the conduct of peace officers is substantial" because "Peace officers 'hold one of the most powerful positions in our society; our

dependence on them is high and the potential for abuse of power is far from insignificant.'" Long Beach, 203 Cal.App.4th at 884. In addition, there is a strong public policy that government information is to be disclosed promptly if it is not confidential. Public Records Act claims are to be resolved "at the earliest possible time." Gov't Code 6258. Balancing the harms, the court finds the Regents and the public will suffer more harm if the court erroneously restricts the disclosure of the Report than the Petitioners would suffer if the court improvidently permits the disclosure of the Report. MOTIONS TO SEAL The motion of Plaintiffs to seal portions of the record is DENIED. The motion of the Regents to seal portions of the record is DENIED. STAY OF THIS ORDER TO PERMIT APPELLATE REVIEW. The court stays the effect of this order through April 2, 2012, to permit Plaintiffs to file an appeal and seek temporary relief from the Court of Appeal. The temporary restraining order preventing disclosure of the Report will stay in effect through April 2, 2012. The Regents may disclose the Report on April 3, 2012, unless the Court of Appeal directs otherwise. The documents that have been lodged (but not filed) with the court will remain conditionally under seal through April 2, 2012. The documents will be placed in the public file on April 3, 2012, unless the Court of Appeal directs otherwise.