City Atty. Vacillated on Identifying Officers

Asked by the Los Angeles Police Commission about the legality of withholding the names of officers involved in shootings, the city attorney’s office recommended that the commission “carefully consider” its options but left to the panel the decision whether the public interest in disclosure outweighed officers’ claims of privacy.

The office’s 13-page opinion, sent confidentially to the commission last year and obtained Thursday by The Times, stressed that courts previously had ruled that shooting reports, including the names of the officers involved, were public documents.

Any attempt to restrict the disclosure of LAPD shooting reports, the opinion noted, would meet with similar scrutiny. “In cases of officer-involved shootings, it is likely that the scales would tip in favor of disclosure,” the opinion said.

If the commission elected to withhold names, the opinion added, the panel could expect the courts to view that decision skeptically. “The courts,” it said, “are likely to closely scrutinize any claim of privilege concerning information that would ordinarily be available to the public, such as the names of police officers involved in a public police action.”

Yet the commission, it was revealed this week, decided in December to withhold the names under pressure from the city’s police union, which had threatened to sue.

In publicly affirming its decision earlier this week, the commission said it believed it had no other choice and cited the as-yet publicly unreleased opinion by the office of City Atty. Rocky Delgadillo. It was signed by Richard H. Llewellyn Jr., chief deputy city attorney.

Delgadillo’s office sent copies of the document to some city officials Thursday.

The document also provides the legal basis for the commission’s decision to begin withholding the names of officers from summaries of shooting reports posted on the Internet.

“A strong argument could be made, and a court would likely conclude, that such references to the performance of specifically identified officers constitute peace officer personnel information

Councilman Jack Weiss, who has called for a public hearing on the policy change, said after reading the advice letter that he was not convinced the Police Commission acted correctly.

“My initial impression is it raises lots of questions,” said Weiss, a former prosecutor. “It does not appear that the law in this area is settled. If the law in this area is not settled, why shouldn’t public policy err on the side of a fully informed public?”

Weiss, chairman of the council’s Public Safety Committee, declined to release a copy of the opinion, saying he was told by the city attorney’s office that it was confidential because of attorney-client privilege.

However, he said he would initiate a process today to get the privilege waived so the opinion could be released and debated.

The Police Commission began posting summaries of shooting reports on the Internet as part of an effort to increase the transparency of internal investigations -- and to help assure the public that the commission wasn’t covering up bad actions by officers.

But the policy of releasing names infuriated the Los Angeles Police Protective League.

In a letter dated April 28, 2005, the league’s attorney, Enrique Hernandez, demanded that the LAPD stop releasing internal reports under the state Public Records Act, arguing that the act doesn’t give the LAPD the authority to do so.

Until December, the department had followed a 25-year-old policy of disclosing officers’ names in its shooting reports. The commission quietly overturned the policy and affirmed its action publicly this week.

After receiving no reply to his April letter, Hernandez sent another one month later threatening to sue the LAPD; the union has not yet filed the suit, presumably because the commission changed its long-standing policy.

However, Hernandez said the city attorney’s opinion did not go far enough.

“I feel the entire [shooting] report should be confidential,” Hernandez said.

In California, police officer files are protected by state law. Statements made by police can also be protected as part of criminal investigations, even when it is the police that are the subject of investigations.

The city attorney’s opinion says the courts may side with the union claims.

“The officer-involved-shooting report may properly be considered official information subject to a conditional privilege of confidentiality,” Llewellyn wrote.

However, Llewellyn acknowledged that “the current state of the law is unsettled with respect to exactly where to draw the line between those competing interests,” and he noted that there are some cases under review by the state Supreme Court.