_________________________ 

 

________________________________________________________________________ 

 

 

 

 

TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

: 

OPINION : No. 87-107 

: 

of : JULY 30, 1987 

: 

JOHN K. VAN DE KAMP : 

Attorney General : 

: 

ANTHONY S. DA VIGO : 

Deputy Attorney General : 

: 

THE HONORABLE IRA REINER, DISTRICT ATTORNEY, COUNTY 

OF LOS ANGELES, has requested an opinion on the following question: 

What is the meaning of "law enforcement personnel" and "ongoing criminal 

investigation" as those terms are used in Health and Safety Code section 25180.7? 

CONCLUSION 

"Law Enforcement personnel" refers to those employed by public agencies 

to enforce the criminal law, including investigation, arrest, and prosecution. "Ongoing 

criminal investigation" refers to the detection and prosecution of criminal conduct, which 

is actually in progress throughout or during some portion of the prescribed 72-hour 

period. 

1
 

00-1203
 
 

 

 

 

 

 

ANALYSIS
 

On November 4, 1986, the voters of California approved the Safe Drinking 

Water and Toxic Enforcement Act of 1986. This initiative measure, Proposition 65, 

amended and added related sections to the Health and Safety Code. Section 1 of the 

initiative contains the following declaration of purpose: 

"The people of California find that hazardous chemicals pose a 

serious potential threat to their health and well-being, that state government 

agencies have failed to provide them with adequate protection, and that 

these failures have been serious enough to lead to investigations by federal 

agencies of the administration of California's toxic protection programs. 

The people therefore declare their rights: 

"(a) To protect themselves and the water they drink against 

chemicals that cause cancer, birth defects, or other reproductive harm. 

"(b) To be informed about exposures to chemicals that cause cancer, 

birth defects, or other reproductive harm. 

"(c) To secure strict enforcement of the laws controlling hazardous 

chemicals and deter actions that threaten public health and safety. 

"(d) To shift the cost of hazardous waste cleanups more onto 

offenders and less onto law-abiding taxpayers. 

The people hereby enact the provisions of this initiative in furtherance of 

these rights." (Emphasis added.) 

Among the added statutory provisions is section 25180.7. Subdivision (b) thereof 

provides as follows: 

"Any designated government employee who obtains information in 

the course of his official duties revealing the illegal discharge or threatened 

illegal discharge of a hazardous waste within the geographical area of his 

jurisdiction and who knows that such discharge or threatened discharge is 

likely to cause substantial injury to the public health or safety must, within 

seventy-two hours, disclose such information to the local Board of 

Supervisors and to the local health officer. No disclosure of information is 

required under this subdivision when otherwise prohibited by law, or when 

law enforcement personnel have determined that such disclosure would 

2
 

00-1203
 
 

 

 

 

 

 

 

 

 

adversely affect an ongoing criminal investigation, or when the information 

is already general public knowledge within the locality affected by the 

discharge or threatened discharge." (Emphasis added.) 

Under the provisions of subdivision (b), no disclosure by a government 

employee of information concerning the actual or threatened discharge of hazardous 

waste is required "when law enforcement personnel have determined that such disclosure 

would adversely affect an ongoing criminal investigation." The present inquiry concerns 

the significance of the terms "law enforcement personnel" and "ongoing criminal 

investigation" which are not otherwise defined. 

The principal rules of statutory interpretation were summarized in Evans v. 

City of Anaheim (1982) 133 Cal.App.3d 853, 856: 

"We begin with the fundamental rule that a court should ascertain 

the intent of the Legislature so as to effectuate the purpose of the law. In 

determining such intent the court turns first to the words themselves for the 

answer. We are required to give effect to statutes according to the usual, 

ordinary import of the language employed in framing them. If possible, 

significance should be given to every word, phrase, sentence and part of an 

act in pursuance of the legislative purpose; a construction making some 

words surplusage is to be avoided. When used in a statute words must be 

construed in context, keeping in mind the nature and obvious purpose of the 

statute where they appear. Moreover, the various parts of a statutory 

enactment must be harmonized by considering the particular clause or 

section in the context of the statutory framework as a whole." (Citations 

and quotations omitted.) 

Further, it has been held that statutory language is reasonably certain if it can be 

understood with the aid of reference to the dictionary. (People v. Spencer (1975) 52 

Cal.App.3d 563, 565.) 

At the inception it may be seen that the provisions under consideration 

constitute an exception respecting the duty to disclose. Ordinarily, exceptions should be 

narrowly construed. (Lacabanne Properties, Inc. v. Dept. Alcoholic Bev. Cont. (1968) 

261 Cal.App.2d 181, 189; 70 Ops.Cal.Atty.Gen. 92, 97 (1987).) This rule is a corollary 

to the rule of liberal construction to promote the legislative objectives. (Valdez v. 

Federal Mut. Ins. Co. (1969) 272 Cal.App.2d 223, 227.) In the present situation, 

however, the exception to the requirement of disclosure promotes the legislative objective 

of prosecution for unlawful discharge of hazardous waste. (See, subdivision (c) of the 

declaration of purpose, supra, "to secure strict enforcement of the laws controlling 

3
 

00-1203
 
 

 

 

 

 

 

hazardous chemicals . . .") While the reference in section 25180.7, subdivision (b), to an 

"ongoing criminal investigation" is not limited to investigations of crimes respecting 

environmental pollution, it may be fairly inferred that an investigation which would be 

adversely affected by a disclosure required under that section would normally involve 

such a discharge. Since the exception promotes an express statutory objective, the usual 

rule requiring a narrow construction of exceptions will not be applied. 

LAW ENFORCEMENT PERSONNEL 

The phrase "law enforcement personnel" occurs in the context of a criminal 

investigation. Thus, while nearly every public agency is engaged in the administration or 

enforcement of some statute, we perceive the principal function in question to be limited 

to the prevention and detection of crime. Indeed, "law enforcement" in its traditional 

sense refers to the enforcement of penal statutes. (State of California ex rel. Division of 

Ind. Safety v. Superior Court (1974) 43 Cal.App.3d 778, 784.) 

Further, our system of law commits law enforcement to duly authorized 

public officers. While a private person may investigate crime and effect a citizen's arrest 

under limited circumstances (see Pen. Code, § 837), the words "law enforcement 

personnel" in the present context were intended, in our view, to refer only to those who 

are employed by public agencies in positions involving the enforcement of the criminal 

law. In this regard, the word "personnel" connotes a body of persons employed in a 

particular professional or occupational service. (Cf. Webster's Third New Internat. Dict. 

(1961) p. 1687.) 

The word "enforcement" is defined in part as "the compelling of the 

fulfillment (as of a law or order)." (Webster's, supra, at 751.) Enforcement of the 

criminal law would encompass the investigation of crime, and the arrest and prosecution 

of those suspected of crime. Consequently, law enforcement personnel would include 

"peace officers" as defined in chapter 4.5, title 3, part 2 (commencing with § 830) of the 

Penal Code. The term would also extend to public prosecutors, including the Attorney 

General, district attorneys, and city attorneys having prosecutorial duties, as well as their 

investigators. It is concluded that "law enforcement personnel" refers to those employed 

by public agencies to enforce the criminal law, including investigation, arrest, and 

prosecution. 

ONGOING CRIMINAL INVESTIGATION 

An "investigation" is appropriately described as "a detailed examination . . . 

a searching inquiry . . . an official probe . . . ." (Webster's, supra, at 1189.) A criminal 

investigation would embrace the detection and gathering of facts and evidence in 

4
 

00-1203
 
 

 

 

 

 

 

 

 

 

 

preparation for, and would include the prosecution of crime. An activity is "ongoing" if 

it is actually in progress or continuously moving forward. (Webster's, supra, at 1576.) 

Nothing in Health and Safety Code section 25180.7 or in the ballot 

pamphlet which accompanied its submission to the electorate suggests that the term 

"criminal investigation" is limited to the investigation of crimes relating to environmental 

pollution or to any other category of criminal conduct. Where the words of a statute are 

clear, we neither add to them, alter them, nor insert qualifying provisions to conform to 

an assumed intent or accomplish a purpose that does not appear on the face of the statute 

or from its legislative history. (Gillett-Harris- Duranceau & Associates, Inc. v. Kemple 

(1978) 83 Cal.App.3d 214, 219; 66 Ops.Cal.Atty.Gen. 217, 222 (1983).) Hence, an 

ongoing criminal investigation would include an investigation of any criminal conduct, 

which is actually in progress or continuously moving forward. 

Health and Safety Code section 25180.7, subdivision (b), provides that a 

designated government employee has a duty to disclose certain information within a 

prescribed period of 72 hours. A breach of that duty cannot occur until the lapse of the 

period. Consequently, if a criminal investigation is in progress prior to the lapse of the 

period, it may provide the basis for a determination which would preclude the duty to 

disclose. Of course, the determination itself must also precede ("when law enforcement 

personnel have determined") the lapse. Thus, the ongoing investigation need not have 

preexisted the date on which the information was obtained or the requisite knowledge as 

to its probable injurious effects acquired, but may, for instance, have been precipitated by 

the discovery. This interpretation is consistent with the apparent policy of preserving the 

integrity of confidential criminal investigations. In this regard, it would not appear 

significant, in terms of the potential adverse impact of a disclosure, when an investigation 

was first initiated. 

Once the determination has been made, the duty ceases. Nothing in the 

statute suggests its revival, even though the investigation is closed or the determination is 

rescinded prior to the lapse of the period. The statute contains no provision for 

communication of any such determination or rescission to the designated government 

employee, nor does it cast a burden of discovering any such rescission upon such 

employee. Inasmuch as a violation of this rule gives rise to criminal liability (Health & 

Saf. Code, § 25180.7, subd. (c)), the rule applies that penal statutes will not be given 

application beyond their plain intent, so as to include offenses not coming clearly within 

the import of their language. (People v. Carskaddon (1957) 49 Cal.2d 423, 427; and see 

People v. Bradley (1983) 146 Cal.App.3d 721, 725; 20 Ops.Cal.Atty.Gen. 16, 17 (1952).) 

Of course, the employee's awareness of a new or continued discharge may give rise to a 

new duty. 

5
 

00-1203
 
 

 

 

 

It must be emphasized, finally, that the determination both as to the 

existence of an ongoing criminal investigation and as to the adverse effect thereon of a 

disclosure, must be made by law enforcement personnel. Hence, such matters fall within 

the considered judgment of such personnel. Of paramount concern to the designated 

government employee is the ultimate fact that a determination has or has not been made. 

If it has not, the duty remains. If it has, disclosure is neither required nor prohibited. 

It is concluded that an ongoing criminal investigation is an investigation 

which has been determined by law enforcement personnel to be in progress, regardless of 

the time of its commencement, but prior to the lapse of the prescribed period. 

***** 

6
 

00-1203