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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:


 OPINION : No. 88-306
 

:


 of : July 13, 1988
 

:


 JOHN K. VAN DE KAMP :


 Attorney General :
 

:


 CLAYTON P. ROCHE :
 

Deputy Attorney General :


 :
 

THE HONORABLE BYRON SHER, Member of the California
 

Assembly, has requested an opinion on the following questions:
 

1. May a public agency release to the public summary
 

information from records maintained pursuant to section 832.5 of
 

the Penal Code?
 

2. May a public agency compile and release to the public
 

statistical information concerning the types of citizens'
 

complaints filed pursuant to section 832.5 of the Penal Code and
 

the disposition of such complaints?
 

CONCLUSIONS
 

1. Section 832.7 of the Penal Code by its
 

confidentiality and disclosure provisions bars a public agency from
 

releasing to the public summary information from records maintained
 

pursuant to section 832.5 of the Penal Code. 


2. Section 832.7 of the Penal Code by its
 

confidentiality and disclosure provisions bars a public agency from
 

compiling and releasing to the public statistical information
 

concerning the types of citizens' complaints filed pursuant to
 

section 832.5 of the Penal Code and the disposition of such
 

complaints. 

 

ANALYSIS
 

Section 832.5 of the Penal Code 1 requires all
 

departments and entities which employ peace officers to establish
 

a procedure for citizens' complaints against departmental
 

personnel. That section provides:
 

"(a) Each department or agency in this state which
 

employs peace officers shall establish a procedure to
 

investigate citizens' complaints against the personnel of
 

such departments or agencies, and shall make a written
 

description of the procedure available to the public.
 

"(b) Complaints and any reports or findings
 

relating thereto shall be retained for a period of at
 

least five years."
 

The courts have stated that one of the purposes of this
 

1974 enactment (Stats. 1974, ch. 29), which originally applied only
 

to sheriffs' departments and city police departments but the
 

coverage of which was expanded in 1978 (Stats. 1978, ch. 630), was
 

a desire on the part of the Legislature to encourage citizens'
 

complaints. (Pena v. Municipal Court (1979) 96 Cal.App.3d 77, 82).
 

Chapter 630, Statutes of 1978, which expanded the
 

coverage of section 832.5, also enacted section 832.7 and Evidence
 

Code sections 1043 and 1045. These amendments followed in the wake
 

of the California Supreme Court's decision in Pitchess v. Superior
 

Court (1974) 11 Cal.3d 531 to provide the rules with respect to
 

accessing records of citizens' complaints. In Pitchess the court
 

permitted discovery of citizens' complaints in a criminal case
 

under informal rules relating to criminal discovery coupled with
 

the "balancing test" provided for in section 1040, subdivision
 

(b)(2) of the Evidence Code for disclosure of "official
 

information." The 1978 amendments substituted statutory procedures
 

for so-called "Pitchess motions."
 

Section 832.7 is the focus of this opinion. That section
 

presently provides:
 

"Peace officer personnel records and records
 

maintained pursuant to Section 832.5, or information
 

obtained from these records, are confidential and shall
 

not be disclosed in any criminal or civil proceeding
 

except by discovery pursuant to Sections 1043 and 1046 of
 

the Evidence Code. This section shall not apply to
 

investigations or proceedings concerning the conduct of
 

1

All section references are to the Penal Code unless otherwise
 

indicated.
 

2. 88-306
 
 

police officers or a police agency conducted by a grand
 

jury or a district attorney's office."2
 

The addition of section 832.7 coupled with Evidence Code
 

sections 1043 and 1045 in 1978 was to protect the right of privacy
 

of peace officers who were the subject of citizens' complaints, and
 

to make their personnel records, which include such complaints,
 

privileged material. This purpose of protecting peace officers'
 

right of privacy is evidenced specifically in section 832.8. That
 

section defines peace officers' "personnel records" for purposes of
 

section 832.7 and includes "(e) [c]omplaints, or investigations of
 

complaints. . . or (f) [a]ny other information the disclosure of
 

which would constitute an unwarranted invasion of personal
 

privacy." (See also generally City of Santa Cruz v. Superior Court
 

(1987) 190 Cal.App.3d 1669, 1674; Herrera v. Superior Court (1985)
 

172 Cal.App.3d 1162-1163; Arcelona v. Municipal Court (1980) 113
 

Cal.App.3d 523, 532.)
 

Additionally, the confidentiality provisions of section
 

832.7 would also appear to be intended to encourage citizens to
 

make complaints against peace officers by shielding their
 

complaints from undo publicity. 


We are asked with respect to these provisions:
 

1. Whether a public agency may release to the public
 

summary information from the records maintained pursuant to section
 

832.5; or
 

2. Whether a public agency also may compile and release
 

to the public statistical information concerning the types of
 

citizens' complaints filed and the disposition of such complaints.
 

1. The Release of Summary Information
 

As to the possible release of summary information to the
 

public, a number of possible examples were supplied to us with the
 

request for our opinion, progressing from very summary information
 

to a more detailed summary. Several are set forth in the Appendix
 

hereto.
 

2

Section 1043 of the Evidence Code provides the procedure for
 

discovery of records maintained pursuant to section 832.5. Section
 

1045 of the Evidence Code implements that section, including an in
 

camera inspection by the court of the records sought. Section 1046
 

of the Evidence Code, added in 1985 (Stats. 1985, ch. 539),
 

provides that where the party requesting discovery is alleging that
 

excessive force was used in an arrest, a copy of the police report
 

must accompany the discovery motion.
 

3. 88-306
 
The issue is whether section 832.7 prohibits the release
 

by the police agency of such summaries. We conclude that it does.
 

Returning to the wording of section 832.7, we note that
 

the wording is clear. "Peace officer personnel records and records
 

maintained pursuant to section 832.5, or information obtained from
 

these records, are confidential. . . ." (Emphasis added.) All of
 

the examples set forth in the appendix contain "information
 

obtained from" records maintained pursuant to section 832.5. The
 

section contemplates disclosure of such information only (1)
 

pursuant to discovery motions and (2) in investigations or
 

proceedings of the grand jury or the district attorney's office.
 

Accordingly, release of information in other situations would
 

constitute a clear violation of the section.
 

Statutes are to be literally applied according to their
 

plain language unless to do so would produce absurd results or
 

would defeat the manifest intention of the Legislature. (People v.
 

Belleci (1979) 24 Cal.3d 879, 884; California Highway Patrol v.
 

Worker's Compensation Appeals Board (1986) 178 Cal.App.3d 1016,
 

1024.) No absurdity would result from not permitting the release
 

of summary information obtained from police reports. 


Furthermore, we believe it is significant that the
 

Legislature in section 832.7 designated citizens' complaint records
 

and information obtained therefrom to be confidential.
 

Confidential means "l: . . . not publicly disseminated: PRIVATE,
 

SECRET. . . ." (Webster's New Internat. Dict. (3d. ed. 1961
 

p. 476.) Thus, the Legislature did not in section 832.7 vest any
 

discretion in a public agency as to whether or not to disclose this
 

information. This is to be compared with section 6254 of the
 

Government Code, a part of the California Public Records Act, where
 

that Act in section 6254 specifies several categories of records
 

which are exempt from public disclosure but thereafter specifies
 

that "[n]othing in this section prevents any agency from opening
 

its records concerning the administration of the agency to public
 

inspection, unless disclosure is otherwise prohibited by law ."
 

(Emphasis added.) If the Legislature had vested discretion in the
 

public agency to disclose information encompassed by section 832.7,
 

such discretion would have tended to defeat the purpose for which
 

the section was enacted.
 

Accordingly, to apply section 832.7 literally would in no way
 

defeat the manifest intention of the Legislature. 


Accordingly, we conclude that a police agency may not
 

release summary information concerning citizens' complaints filed
 

pursuant to section 832.5. Such information is confidential and
 

the agency has a statutory duty to protect that confidentiality.
 

(Cf. Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d
 

931, 942, discussing Younger v. Berkeley City Council (1975) 45
 

4. 88-306
 
 

 

Cal.App.3d 825, 832-833; 71 Ops.Cal.Atty.Gen. 1 (1988), (Opn. No.
 

87-904, dtd., 1/5/88.)3
 

2. The Compilation And Release Of Statistical Data
 

The second question presented is whether a public
 

agency may compile and release statistical information concerning
 

the types of citizens' complaints filed pursuant to section 832.5
 

and the disposition of such complaints.
 

Returning again to the language of section 832.7, we note
 

again that the confidentiality provisions apply to "records
 

maintained pursuant to section 832.5, or information obtained from
 

these records. . . ." (Emphasis added.) Literally, statistical
 

information would be "information obtained from these records"
 

within the wording of section 832.7. The fact that such
 

information may consist of an amalgamation of many bits of
 

information would not change or alter their source, that is, "from
 

these records."
 

Accordingly, an application of the "plain meaning rule"
 

of statutory interpretation (People v. Belleci, supra, 24 Cal.3d
 

879, 884; California Highway Patrol v. Worker's Compensation
 

Appeals Board, supra, 178 Cal.App.3d 1016, 1024), would also
 

preclude the dissemination of statistical information to the public
 

derived from citizens' complaint records unless to do so would be
 

contrary to the manifest intent of the legislative, or would
 

produce absurd results.
 

With respect to legislative intent, we note that there is
 

nothing in the law which provides for the compilation and issuance
 

of such statistical information to the public by individual police
 

agencies. However, there is provision for a compilation and
 

publication of such statistical information in section 13012 with
 

respect to this department's annual crime report. That section
 

provides:
 

"The annual report of the department [of Justice]
 

provided for in Section 13010 shall contain statistics
 

showing:
 

" . . . . . . . . . . . . . . . . . . . . . . . 


3

Younger v. Berkeley City Council also held that the special
 

confidentiality provisions of the Penal Code also superseded any
 

possible general provisions of the Public Records Act, Government
 

Code, section 6250 et seq., which might be urged to permit the
 

disclosure of the confidential records involved therein.
 

5. 88-306
 
 

 

 

 

 

 

 

 

 

"(d) The number of citizens complaints received by
 

law enforcement agencies under Section 832.5. Such
 

statistics shall indicate the total number of such
 

complaints, the number alleging criminal conduct of
 

either a felony or misdemeanor, and the number sustained
 

in each category. The report shall not contain a
 

reference to any individual agency but shall be by gross
 

numbers only. . . . "4
 

Accordingly, the Legislature did not ignore the matter of
 

releasing statistical information concerning citizens' complaints
 

made pursuant to section 832.5. It directly addressed the matter
 

in section 13012 by designating the type of statistics to be
 

released and the agency which should release them, that is, the
 

State Department of Justice.
 

Furthermore, an examination of our codes discloses that
 

the Legislature has specifically provided in a number of instances
 

for the publication of statistical data derived from confidential
 

information in other contexts. Thus, with respect to personal tax
 

information, section 19289 of the Revenue and Taxation Code
 

provides:
 

"This article does not prohibit the publication of
 

statistics so classified as to prevent the identification
 

of particular reports or returns."
 

Section 211.5 of the Health and Safety Code provides with respect
 

to morbidity and mortality studies:
 

". . . Nothing in this section shall prohibit the
 

publishing by the state department of statistical
 

4

For example, the report "Crime and Delinquency in
 

California", 1986, page 124, stated statistics as follows:
 

TABLE A-1
 

CITIZENS' COMPLAINTS
 

AGAINST PEACE OFFICERS, 1986
 

Complaints Number reported Number sustained
 

TOTAL....... 12,811 2,412
 

Total criminal.. 728 160


 Felony....... 245 49


 Misdemeanor 483 111
 

6. 88-306
 
compilations relating to morbidity and mortality studies
 

which do not identify individual cases and sources of
 

information or religious affiliations."
 

Section 10129 of the Health and Safety Code provides with respect
 

to medical and health reports filed as vital statistics:
 

"With the exception of statistical tabulation
 

purposes, the medical and health report shall be kept
 

confidential and access to such report shall be limited
 

to the following persons: . . . ."
 

And section 11144 provides as to confidential state summary
 

criminal history information on file with the Department of
 

Justice:
 

"(a) It is not a violation of this article to
 

disseminate statistical or research information obtained
 

from a record, provided that the identity of the subject
 

of the record is not disclosed. . . ."
 

The specific inclusion in statutes such as those above of
 

an exception as to the release of statistical information is strong
 

evidence that the Legislature did not intend a similar exemption
 

for each public agency maintaining records pursuant to section
 

832.5. (See Safer v. Superior Court (1975) 15 Cal.3d 230, 237-238:
 

"its [the Legislature's] articulation of a specific statutory
 

authorization in that situation points to the absence of such
 

authority in the instant case.") This would seem even particularly
 

true in our situation where the Legislature has specifically
 

provided for the publication of statistics by the Department of
 

Justice, and has defined the scope of those statistics very
 

narrowly.
 

The question whether to permit publication of statistics
 

in this area is a policy question. While there are strong policy
 

arguments made in favor of release of this statistical information,
 

we believe that the Legislature in 1) not specifically providing
 

for the publication of statistics locally and 2) specifically
 

providing for the publication of statistics on a statewide basis by
 

the Department of Justice has demonstrated that it has made the
 

policy decision against local publication. Accordingly, we
 

conclude that a public agency may not on its own motion compile and
 

release to the public statistical information concerning the types
 

of citizens' complaints filed pursuant to section 832.5 of the
 

Penal Code and the disposition of such complaints.
 

* * * *
 

7. 88-306
 
 

 1 

 1 

APPENDIX
 

EXAMPLE #1
 

LOG NO. NATURE OF COMPLAINT/INVESTIGATION


The complainant telephoned the


department regarding a police 


officer allegedly speeding in a
 

marked police car. The investigation was unable to verify that the


 officer had, in fact, been speeding.
 

EXAMPLE #2


The complainant phoned the 


department stating that she was 


improperly issued a traffic
 

citation. She refused to sign the
 

citation, was not taken to see a
 

judge and she was injured as a
 

result of being handcuffed. 


The investigation revealed that the
 

complainant was stopped for
 

speeding and was issued a citation.
 

The complainant refused to sign the
 

citation so she was arrested. The
 

complainant was told that she might
 

be booked into jail before seeing a
 

judge so she signed the citation.
 

The officer acted properly in
 

handcuffing the complainant.
 

EXAMPLE #3
 

The complainant called the police


department and alleged that an
 

officer used excessive force in
 

applying handcuffs to him and
 

consequently caused complainant to
 

fracture his wrist. In addition,
 

the officers failed to allow a
 

friend of complainant's to take
 

complainant's car at the time of
 

his arrest.
 

DISPOSITION


 Not
 

Sustained
 

Exonerated/
 

Unfounded


 Exonerated
 

8. 88-306
 
The investigation revealed that the
 

officers stopped complainant after
 

receiving a vehicle description of
 

a car used in an armed robbery.
 

After stopping the car, complainant
 

fled on foot and was pursued by one
 

officer. The other officer
 

remained at the car stop as
 

additional suspects were in the
 

vehicle. The pursuing officer
 

apprehended complainant and a
 

struggle ensued. During the
 

confrontation complainant wrestled
 

with the officer and at one point
 

attempted to draw a knife from his
 

waistband. The officer seized his
 

wrist and complainant continued to 


struggle. During the confrontation
 

complainant's wrist was fractured
 

unavoidably. The officer acted
 

properly in effecting the arrest
 

with an armed suspect.
 

9. 88-306