Riske v. Superior Court – Analyzing Whether Confidential Peace Officer Records are “Material” to a Civil Lawsuit

by Amber N. Morton

California laws provide a two-step procedure for determining when peace officer personnel files may be disclosed to third parties in connection with civil or criminal actions. Under Evidence Code Section 1043, a party seeking disclosure of peace officer records must file a motion with the court and include affidavits stating good cause for disclosure and materiality of the requested information to the pending litigation. If this threshold is met, a judge then privately reviews the records sought and releases those records that are material to the litigation’s subject matter.

In Riske v.  Superior Court, 6 Cal. App. 5th 647 (2016), the Court of Appeals analyzed what was required at the first step to show that information requested was “material” to a pending civil lawsuit. In Riske, Robert Riske, a retired Los Angeles police officer, sued the City of Los Angeles claiming that the Los Angeles Police Department had retaliated against him for reporting and testifying against two fellow officers for falsifying police reports. Riske claimed that in retaliation, the Department failed to assign or promote him to several positions and instead selected less qualified applicants.

In connection with his lawsuit, Riske filed a motion seeking reports that summarized the successful candidates’ qualifications and history of commendations and complaints, and their last two performance evaluations. To support his motion, Riske submitted an affidavit from a retired Department Captain stating that all officers applying for the positions Riske identified were required to submit the requested report and last two performance evaluations to their supervisors and that the information played a “crucial role” in the selection process. Riske argued that the documents were material to his ability to prove the Department’s stated reasons for Riske’s failure to promote were pretext for unlawful retaliation.

In its analysis, the Court rejected the City’s position that the statutory scheme permitting discovery of peace officer records did not apply when the officers whose personnel records were sought had not witnessed or been accused of any misconduct. Pointing to the plain and unambiguous language of Evidence Code Section 1043, the Court stated the critical threshold to determining whether information is “material” is whether it is admissible or likely to lead to admissible evidence. This plain language did not limit production of confidential personnel records to those officers who participated in or witnessed the alleged wrongdoing.

Accordingly, if Riske could show that the confidential personnel information of the officers who were not involved in his injury was material to the litigation, then he would have demonstrated the good cause necessary for the first.  In this case, the Court found that the affidavit Riske submitted provided a plausible factual showing of materiality to proceed to the second step of the trial judge privately reviewing the records to determine which, if any, should be ordered produced.

Police departments should be aware going forward that peace officer records for non-witness or non-party officers may be sought in the context of a civil lawsuit if those records can be shown to meet the threshold of materiality as discussed in Riske.  In the employment context, this decision will likely be used to support requests for comparative information in connection with peace officer employee claims of discrimination, disparate impact, or retaliation.  Whether and to what extent the records ultimately are ordered produced remains for the trial judge to determine after a private review of the records.

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