The Intersection Between Brady Lists, Pitchess Statutes and SB 1421
California law enforcement agencies in California are now confronted with the interplay among Brady lists and alerts, the Public Records Act, and Pitchess statutes and how they work together to provide disclosure of information to prosecutors and the public.
A prosecutor in a criminal case must disclose to the defense evidence that is “material” and favorable to the accused, including evidence that could impeach a police officer’s testimony or credibility. (Brady v. Maryland (1963) 373 US 83.) On the other hand, in California, Pitchess statutes limit access to this type information, recognizing a police officer’s right to privacy in their personnel records. (See generally Penal Code section 832.7.) A Brady list is kept by some law enforcement agencies to track officers that the agency has identified as having exculpatory or impeachment information in their personnel files to help administer disclosure to prosecutors.
These Brady lists intersect with Penal Code section 832.7 and the California Public Records Act in several ways.
In a 2019, the California Supreme Court decided in ALADS v. Superior Court whether a law enforcement agency MAY disclose the name of an officer on a Brady list if the officer is a potential witness in a pending criminal prosecution. These notifications are called Brady alerts. The Court held that Brady alerts to prosecutors are permissible and best harmonize Brady and the Pitchess statutes.
However, in California, police personnel records that may qualify for listing an officer in a Brady list are still confidential with few exceptions. Penal Code section 832.7 prohibits the release of these “confidential records,” but it does not mean that such records cannot be shared confidentially with others who have a legally recognized need to know, like prosecutors. Prosecutors have a need to know because they are required to share Brady information with the defense and they are deemed constructively aware of Brady material known to anyone on the prosecution team, like the police agencies involved in the case. Therefore, Brady alerts are necessary to the allow the prosecutors to comply with Brady, and they are permitted under Penal Code 832.7(a) because sharing confidential information, i.e. the officer’s name, with prosecutors does not make the information any less confidential. “[W]hen a department seeks to transmit a Brady alert to prosecutors, allowing the department to do so mitigates the risk of a constitutional violation. With Brady in mind, the term ‘confidential’ must be understood to permit such alerts,” the Court said.
As to an agency’s or department’s entire Brady list, it appears the Court found that the disclosure that an officer is on a Brady list, i.e. that there may be Brady material in the officer’s personnel file, is a material disclosure because it indicates that the officer has been found to have committed misconduct. Further, even if the information that informed the Brady list is now non-confidential because of the new provisions introduced into the Penal Code by SB 1421, the Court was not willing to say that the non-confidential information melds into a single, non-confidential whole. In short, an agency or department cannot release a list that was comprised from non-confidential and confidential information and violate the privacy rights of all those officers whose records are not subject to disclosure under SB 1421. Therefore, Brady lists do not become public records through SB 1421 because one cannot determine whether confidential or non-confidential information was accessed to place the officer on the Brady list.
An outstanding question is whether there is any intersection between the Brady list and the California Public Records Act. Simply put: No. Agencies can safely deny any request for a Brady list under the PRA. However, a member of the public might request a list that includes officers who have records related to the four critical-incident categories detailed under SB 1421. If such a request is received, an agency should be careful to respond using the critical incident language in Penal Code section 832.7.
Additionally, law enforcement agencies should recall that no agency is obligated to create any record in response to a PRA request. In reality, law enforcement agencies will not likely have a list of officers who have records related to the four critical-incident categories detailed under SB 1421, let alone a Brady list. If a law enforcement agency were to receive such a request under the PRA, an attorney should be contacted to review the options.