Opinion by Chief Justice Cantil-Sakauye (unanimous decision).

A law enforcement agency’s “Brady list” is confidential to the extent that officers are included on the list based on information obtained from confidential personnel records. In 2016, the Los Angeles County Sheriff’s Department (the Department) informed roughly 300 deputy sheriffs in the Association for Los Angeles Deputy Sheriffs (the Association) that their names may be provided to prosecutorial agencies on a “Brady list” because a review of their personnel records had identified potential exculpatory or impeachment information. The Association obtained a preliminary injunction preventing the Department from disclosing the identity of deputies on its Brady list, but there was an exception permitting disclosure to prosecutors when a deputy is a potential witness in a pending prosecution. The Court of Appeal granted the Association’s petition for writ of mandate in part, holding that the exception was impermissible under the Pitchess v. Superior Court (1974) 11 Cal.3d 531 statutes (Evid. Code, §§ 1043-1047; Pen. Code, §§ 832.5, 832.7, 832.80). The Supreme Court granted review. Held: Reversed and remanded. Absent an exception, section 832.7, subdivision (a) creates three categories of confidential information with respect to peace and custodial officers: (1) personnel records, including employee discipline, complaints, and investigations of complaints pertaining to the employee’s performance; (2) records maintained as part of investigating complaints by members of the public; and (3) “information obtained from” the prior two categories. This confidential information shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to sections 1043 and 1046. Here, it was undisputed the Department created its Brady list by reviewing personnel records. The court concluded that the identities of officers on the Brady list constitute “information obtained from” the personnel records of peace officers. As a result, “barring the applicability of an exception, the Pitchess statutes render confidential the identities of officers on the Brady list.”

After the enactment of Senate Bill No. 1421, which excludes certain information from section 832.7, subdivision (a)’s provision of confidentiality, section 832.7 does not restrict disclosure of a Brady list that is based on records that are not confidential. After the California Supreme Court granted review in this case, the Legislature enacted SB 1421 and the court obtained supplemental briefing regarding the significance of the enactment. SB 1421 amended section 832.7 to declare that certain “peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act.” (Pen. Code, § 832.7, subd. (b).) Under subdivision (b), records deemed nonconfidential are: (1) records “relating to the report, investigation, or findings” of an incident in which an officer discharged a firearm at a person or used force against a person resulting in death or great bodily injury; (2) records “relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency” that an officer “engaged in sexual assault involving a member of the public;” and (3) records relating to sustained findings of an officer’s dishonesty. If a record is deemed nonconfidential under subdivision (b), then the “information obtained from” the record is also not confidential. As a result, “[a]ny portion of a Brady list based on these types of records is not confidential, and section 832.7(a) does not restrict dissemination of such information.” Here, the current record did not show whether the Brady list was based on confidential or nonconfidential information and “partial nonconfidentiality would not strip the remainder of the list of its confidential status.” [Editor’s Note: The court explains that, rather than increasing the amount of information a defendant can compel an agency to disclose, SB 1421 reduces the amount of information that agencies are forbidden from disclosing voluntarily.]

A law enforcement agency may share confidential portions of its Brady list with prosecutors when an officer on the list is a potential witness in a pending criminal prosecution. The court also addressed the question of whether sharing alerts based on confidential portions of a Brady list with prosecutors would be a violation of the confidentiality created by the Pitchess statutes. After reviewing the relevant statutes and case law, the court concluded that the confidentiality created by the Pitchess statutes does not forbid a law enforcement agency from “sharing with prosecutors the fact that an officer, who is a potential witness in a pending criminal prosecution, may have relevant exonerating or impeaching material in that officer’s confidential personnel file.” Confidentiality is not limited to complete anonymity or secrecy. Deeming information “confidential” creates insiders (with whom information may be shared) and outsiders (with whom sharing information might be an impermissible disclosure). The plain language of the Pitchess statutes does not clearly indicate whether prosecutors are insiders or outsiders. However, under Brady v. Maryland (1963) 373 U.S. 83, 87, a prosecutor must disclose to the defense evidence that is “favorable to [the] accused” and “material either to guilt or to punishment.” Prosecutors are deemed constructively aware of Brady material known to anyone on the prosecution team and must share that information with the defense. Likewise, “[l]aw enforcement personnel are required to share Brady material with the prosecution.” Viewing the Pitchess statutes in light of these obligations, the Department may provide prosecutors with Brady alerts without violating confidentiality. The court declined to extend Johnson v. Superior Court (2015) 61 Cal.4th 696 to forbid Brady alerts. In Johnson the court rejected the view that prosecutors “may always review the confidential personnel records of police officers who are witnesses in a criminal case to determine whether the records contain Brady material.” [Editor’s Note: This opinion also has a helpful overview of a prosecutor’s obligations under Brady and Pitchess procedures. The court did not address whether it would violate confidentiality for a prosecutor to share an alert with the defense.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/S243855.PDF