Filed 6/27/13
                           CERTIFIED FOR PUBLICATION



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                  DIVISION THREE


ARMANDA IBARRA et al.,                              B244824

        Petitioners,                                (Los Angeles County
                                                    Super. Ct. No. BC471749)
        v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

        Respondent;

WILLIAM TILLMAN,

        Real Party in Interest.




        ORIGINAL PROCEEDINGS in mandate. Ramona G. See, Judge. Petition
granted.
        Hurrell Cantrall, Thomas C. Hurrell, Melinda Cantrall and Rittu Kumar for
Petitioners.
        No appearance for Respondent.
        Law Offices of Gary S. Casselman and Gary S. Casselman for Real Party in
Interest.


                       _______________________________________
       William Tillman filed a complaint against several peace officers alleging that

guards at the Men‟s Central Jail in Los Angeles physically mistreated him while he was

an inmate there. He sought the production of the guards‟ official service photographs

for use in witness interviews. He filed a motion for disclosure of the photographs as

peace officer personnel records. The trial court ordered the photographs to be produced

to plaintiff‟s counsel and imposed conditions on their use.

       The officers filed a petition for writ of mandate in this court challenging the

order.1 We share the officers‟ concern that the order does not adequately protect them

from the dangers inherent in the disclosure of their photographs in these circumstances.

       We conclude that a peace officer‟s official service photograph is not a personnel

record under Penal Code section 832.8 and therefore is not subject to the requirements

of Penal Code section 832.7 and Evidence Code section 1043 when discovery or

disclosure is sought. We also conclude that the photographs are not protected by either

the right to privacy under the California Constitution (art. I, § 1) or the official

information privilege (Evid. Code, § 1040). We conclude further, however, that the trial

court abused its discretion by compelling the disclosure of the photographs in these

circumstances without more stringent restrictions on their use. We therefore will grant

the petition in order to require measures to ensure that the disclosure does not create

a threat to the officers‟ safety and security.



1
      Petitioners are Armanda Ibarra, James Krase, Michael Thurman,
Lance Moorman and Engelbart Perez (collectively Petitioners).


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                  FACTUAL AND PROCEDURAL BACKGROUND

       Tillman filed a complaint against Sheriff Lee Baca and others in December 2011

alleging that employees of the Sheriff‟s Department at the Men‟s Central Jail had beaten

him severely on March 25, 2011, after accusing him of bad-mouthing them behind their

backs. He alleges in his first amended complaint filed in June 2012 that a sheriff‟s

deputy ordered him to face a cement wall and then slammed his face against the wall,

rendering him unconscious. He alleges that when he regained consciousness he was

handcuffed behind his back and the deputy was mounted on his back holding him down

while punching the side of his face and striking the back of Tillman‟s head with his fist.

Tillman alleges that a second deputy kicked him in the ribs and pepper sprayed him in

the face while the first deputy held him down. He alleges that a custody assistant then

shot him three times in the back with a stun gun.

       Tillman alleges that he was hospitalized for two days as a result and suffered

a large laceration to his forehead, bruises, sore ribs and continued headaches. He

alleges that the two deputy sheriffs and other officers prepared false reports of the

incident claiming that he had attacked them. He alleges counts for (1) battery, against

four deputy sheriffs and a custody assistant; (2) interference with his enjoyment of civil

rights (Civ. Code, § 52.1), against the same defendants; (3) negligence, against the same

defendants; and (4) negligence, against Sheriff Baca, Assistant Sheriff Paul Tanaka and

Alexander R. Yim as Chief of the Correctional Services Division of the Sheriff‟s

Department.



                                             3
       Tillman filed a Motion for Disclosure of Peace Officer Personnel Records in

July 2012 seeking the disclosure of 15 categories of documents relating to the incident

and other accusations of misconduct. One of the categories was “An official current

service photograph identifying each officer.” He sought the photographs for use in

witness interviews and argued that there was good cause for the disclosure as required

by Evidence Code section 1043, subdivision (b)(3). Petitioners opposed the motion

arguing that the requested documents were peace officer personnel records under Penal

Code section 832.8 and were protected by their constitutional right to privacy and the

official information privilege, and that Tillman had failed to show good cause for the

disclosure.

       The trial court found that Tillman had established a plausible factual foundation

for the alleged officer misconduct and conducted an in camera inspection of documents.

On October 24, 2012, the court granted the motion in part and denied it in part, and

ordered the sheriff to produce a photograph of each of the officers to plaintiff‟s counsel

within five court days. The court ordered plaintiff‟s counsel to maintain possession of

the photographs and not to provide them to anyone not involved in this litigation.

       Petitioners filed a petition for a writ of mandate in this court on October 30,

2012, challenging the order to produce their service photographs to plaintiff‟s counsel.

We issued a temporary stay and an order to show cause.

                                    CONTENTIONS

       Petitioners contend (1) the photographs are peace officer personnel records as

defined in Penal Code section 832.8, and Tillman failed to show good cause for

                                             4
disclosure as required under Evidence Code section 1043; (2) the photographs are

protected by their constitutional right to privacy; and (3) the photographs are protected

by the official information privilege.

                                         DISCUSSION

       1.     Standard of Review

       We review an order compelling discovery for abuse of discretion. (Crab

Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 965.) Interlocutory review

of a discovery order on a petition for writ of mandate is appropriate if the ruling

threatens immediate harm for which there is no other adequate remedy, as here. (Doe v.

Superior Court (2011) 194 Cal.App.4th 750, 754.)

       An abuse of discretion is shown if there is no substantial basis for the trial court‟s

ruling or the court applied an incorrect legal standard. (People ex rel. Lockyer v.

Superior Court (2004) 122 Cal.App.4th 1060, 1071.) We review the ruling de novo to

the extent that it involves statutory interpretation or any other legal question. (Ibid.)

       2.     The Service Photographs Are Not Peace Officer Personnel Records

              a.     Peace Officer Personnel Records Defined

       Peace officer personnel records and information obtained from those records are

confidential and can be disclosed in a criminal or civil proceeding only under specified

discovery procedures. (Pen. Code, § 832.7, subd. (a).) Evidence Code section 1043

requires a noticed motion and a showing of good cause for the disclosure.

       Penal Code section 832.8 defines “personnel records” for purposes of

section 832.7 as “any file maintained under that individual‟s name by his or her

                                              5
employing agency and containing records relating to any of the following: [¶]

(a) Personal data, including marital status, family members, educational and

employment history, home addresses, or similar information. [¶] (b) Medical history.

[¶] (c) Election of employee benefits. [¶] (d) Employee advancement, appraisal, or

discipline. [¶] (e) Complaints, or investigations or complaints, concerning an event or

transaction in which he or she participated, or which he or she perceived, and pertaining

to the manner in which he or she performed his or her duties. [¶] (f) Any other

information the disclosure of which would constitute an unwarranted invasion of

personal privacy.”

       Penal Code sections 832.7 and 832.8 do not make confidential and protect from

disclosure any and all information contained in a file maintained by the employing

agency simply because some of the records in that file do relate to one or more of the

items specifically identified in section 832.8. Instead, sections 832.7 and 832.8 make

confidential and protect from disclosure only the types of information specifically

enumerated in section 832.8. (Commission on Peace Officer Standards & Training v.

Superior Court (2007) 42 Cal.4th 278, 293 (POST).)

       POST, supra, 42 Cal.4th 278, involved a judgment by the trial court requiring the

Commission on Peace Officer Standards and Training to release to a newspaper reporter

certain information in its database on California peace officers. The reporter sought the

information in order to investigate the movement of police officers from one department

to another, and particularly those hired by one agency after leaving other agencies

involuntarily. The court ordered the commission to disclose the name, employing

                                            6
department and employment dates for all individuals who were newly appointed as

peace officers from 1991 through 2001. (Id. at pp. 286-287.) The California Supreme

Court held that such information was not confidential under Penal Code sections 832.7

and 832.8 simply by virtue of being contained in a file that contains the information

specifically identified in section 832.8. (POST, supra, at p. 293.)

       POST stated, “We consider it unlikely the Legislature intended to render

documents confidential based on their location, rather than their content. . . . [W]e do

not believe that the Legislature intended that a public agency be able to shield

information from public disclosure simply by placing it in a file that contains the type of

information specified in [Penal Code] section 832.8.” (POST, supra, 42 Cal.4th at

p. 291.) POST concluded, “The categories of information listed in section 832.8

certainly are sufficiently broad to serve the purposes of the legislation and to protect the

legitimate privacy interests of peace officers. To extend the statute‟s protection to

information not included within any of the enumerated categories merely because that

information is contained in a file that also includes the type of confidential information

specified in the statute would serve no legitimate purpose and would lead to arbitrary

results. Therefore, we conclude that peace officer personnel records include only the

types of information enumerated in section 832.8.” (Id. at p. 293.)

       POST also held that the same information did not constitute “[p]ersonal data”

under Penal Code section 832.8, subdivision (a), which refers to “[p]ersonal data,

including marital status, family members, educational and employment history, home

addresses, or similar information.” The examples of “personal data” listed in the statute

                                             7
all involve personal information that is commonly provided by an employee to his or

her employer either during the application process or upon employment, as

distinguished from information arising out of an officer‟s employment. (POST, supra,

42 Cal.4th at p. 294.) In contrast, other subdivisions of section 832.8 address

information relating to the officer‟s current position, including “ „(c) Election of

employee benefits. [¶] (d) Employee advancement, appraisal, or discipline. [¶]

(e) Complaints, or investigations of complaints, concerning an event or transaction in

which he or she participated, or which he or she perceived, and pertaining to the manner

in which he or she performed his or her duties.‟ ” (Id. at pp. 294-295.) POST therefore

concluded that subdivision (a) included “ „basic status or identifying information about

the employee as he or she came to the job,‟ ” but did not include “ „any information that

would be specific to the current job.‟ ” (Id. at p. 295.)

       POST stated further, “We find no indication that the Legislature, in adopting

[Penal Code] sections 832.7 and 832.8, was concerned with making confidential the

identities of peace officers or the basic fact of their employment. Rather, the legislative

concern appears to have been with linking a named officer to the private or sensitive

information listed in section 832.8. . . . It seems unlikely that the Legislature

contemplated that the identification of an individual as a peace officer, unconnected to

any of the information it defined as part of a personnel record, would be rendered

confidential by section 832.8.” (POST, supra, 42 Cal.4th at pp. 295-296.)

       “The information specifically listed in section 832.8, subdivision (a), is the type

of information that is not generally known to persons with whom officers interact in the

                                             8
course of performing their official duties; it is the type of information that, for reasons

of officer safety, should not be revealed to perpetrators or witnesses of crimes. On the

other hand, an officer‟s name and employing agency is information that ordinarily is

made available, even to a person who is arrested by the officer, in any number of

ways—for example, the officer may identify himself or herself, wear a badge with

a name or identification number (as is required for uniformed officers by [Penal Code]

section 830.10), or sign the police report.” (POST, supra, 42 Cal.4th at p. 296.)

“Without a more specific indication in the statute, we hesitate to conclude that the

Legislature intended to classify the identity of a public official whose activities are

a matter of serious public concern as „personal data.‟ ” (Ibid.) “Had the Legislation

intended to prevent the disclosure of officers‟ identities as such, an obvious solution

would have been to list „name‟ as an item of „[p]ersonal data‟ under subdivision (a) of

section 832.8. [Citations.]” (Id. at p. 298.)

       POST did not address the question whether the information there at issue fell

within Penal Code section 832.8, subdivision (f), which refers to “[a]ny other

information the disclosure of which would constitute an unwarranted invasion of

personal privacy.” But POST addressed similar language in Government Code

section 6254, subdivision (c), which exempts from disclosure under the California

Public Records Act (Gov. Code, § 6250 et seq.) “[p]ersonnel, medical, or similar files,

the disclosure of which would constitute an unwarranted invasion of personal privacy.”

POST stated that assuming arguendo that the records at issue constituted

“[p]ersonnel . . . or similar files” under the statute, the determination whether any

                                                9
invasion of personal privacy was “unwarranted” required a balancing analysis. (POST,

supra, 42 Cal.4th at p. 299.)

       Applying a balancing analysis, POST stated that the public has a substantial

interest in the qualifications and conduct of peace officers, while a peace officer

typically has no substantial interest in maintaining the confidentiality of his or her

identity or the fact of his or her employment as a peace officer. (POST, supra,

42 Cal.4th at pp. 300-301.) POST stated, “We find no well-established social norm that

recognizes a need to protect the identity of all police officers. Peace officers operate in

the public realm on a daily basis, and identify themselves to the members of the public

with whom they deal. Indeed, uniformed peace officers are required to wear a badge or

nameplate with the officer‟s name or identification number. ([Pen. Code,] § 830.10.)”

(Id. at p. 301.) POST noted an exception for circumstances where “the duties of

a particular officer, such as one who is operating undercover, demand anonymity” (id. at

p. 301), but stated that the contention that the safety of peace officers in general would

be threatened by the disclosure of the requested information, including their names, was

“purely speculative.” (Id. at p. 302.) POST therefore concluded that the privacy and

safety interests of peace officers in general did not outweigh the public‟s interest in the

disclosure of the requested information. (Id. at p. 303.)

              b.     The Photographs Are Not “Personal Data”

       Tillman seeks the disclosure of “[a]n official current service photograph

identifying each officer.” Penal Code section 832.8 does not expressly mention an

officer‟s photograph. The mere fact that such photographs are contained in files

                                             10
maintained by the employing agency does not render them confidential or protected

under Penal Code sections 832.7 and 832.8. (POST, supra, 42 Cal.4th at p. 293.)

Instead, the photographs constitute peace officer personnel records only if they fall

within one of the types of information enumerated in section 832.8. (Ibid.)

       The requested photographs do not constitute “personal data” under Penal Code

section 832.8, subdivision (a) because an official, current service photograph arises

from the officer‟s current employment and is not the type of personal information that is

commonly provided by an employee to his or her employer during the application

process or upon employment as encompassed in subdivision (a), as explained in POST,

supra, 42 Cal.4th at page 294. An official, current service photograph is not the type of

“ „basic status or identifying information about the employee as he or she came to the

job‟ ” (id., at p. 295) encompassed in subdivision (a). Instead, an official, current

service photograph is “ „specific to the current job‟ ” (ibid.), however much the

photograph may resemble other photographs of the same individual.

       Moreover, POST‟s conclusion that there is no indication that the Legislature

intended Penal Code sections 832.7 and 832.8 to make confidential the identities of

peace officers with respect to their names also suggests that the same is true with

respect to their photographs. The legislative concern was with linking an identified

officer to the private or sensitive information listed in section 832.8. (POST, supra,

42 Cal.4th at p. 295.) Paraphrasing POST, supra, at pages 295-296, it seems unlikely

that the Legislature contemplated that the identification of an individual as a peace

officer, whether by his or her name or photograph, unconnected to any of the

                                            11
information enumerated in section 832.8, would be rendered confidential by the statute.

Unlike the information listed in section 832.8, subdivision (a), an officer‟s appearance,

as disclosed in an official service photograph, is information that ordinarily is known to

persons that the officer comes into contact with. Absent a more specific indication in

the statute that the Legislature intended to protect such identifying information from

disclosure, we conclude that the Legislature did not intend to classify an official service

photograph as “personal data.” (Cf. POST, supra, at p. 296.) If the Legislature had

intended to prevent the disclosure of such photographs, an obvious solution would have

been to list “photographs” as an item of personal data under section 832.8,

subdivision (a). (Cf. POST, supra, at p. 298.)

              c.      The Photographs Are Not Otherwise Within the
                      Statutory Definition

       The types of information listed in subdivisions (b) through (e) of Penal Code

section 832.8 (quoted ante) clearly do not encompass the requested photographs.

Subdivision (f) refers to “[a]ny other information the disclosure of which would

constitute an unwarranted invasion of personal privacy.” A peace officer ordinarily has

no substantial interest in maintaining the confidentiality of his or her identity or the fact

of his or her employment as a peace officer. (POST, supra, 42 Cal.4th at pp. 300-301.)

There is no indication that the officers here either have worked undercover or anticipate

working undercover in the future (see id. at p. 301), and no reason to believe that the

disclosure of their photographs would adversely impact any privacy interest.




                                             12
       3.     The Service Photographs Are Not Protected by the Right to Privacy or
              the Official Information Privilege

       The right to privacy under the California Constitution (art. I, § 1) protects an

individual‟s reasonable expectation of privacy against a serious invasion. (Pioneer

Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) “[W]hether

a legally recognized privacy interest exists is a question of law, and whether the

circumstances give rise to a reasonable expectation of privacy and a serious invasion

thereof are mixed questions of law and fact. [Citation.]” (Ibid.)

       A peace officer whose duties do not require anonymity generally has no

substantial interest in maintaining the confidentiality of his identity, as we have stated.

(POST, supra, 42 Cal.4th at pp. 300-301.) Petitioners work in the Men‟s Central Jail

where their identities are known to the inmates. They have not shown that they

anticipate working undercover or that their duties now or in the future require

anonymity. We therefore conclude that they have shown no legally recognized privacy

interest in their service photographs.

       The official information privilege protects information acquired in confidence by

a public employee in the course of duty and not openly or officially disclosed to the

public prior to the assertion of privilege. (Evid. Code, § 1040, subds. (a), (b).)

A service photograph does not contain information acquired in confidence by a public

employee in the course of duty, and the officer‟s identities here are open to the public.

We therefore conclude that the official information privilege is inapplicable.




                                             13
       4.     The Trial Court Abused its Discretion by Compelling the Disclosure of the
              Photographs Without Adequate Measures to Protect the Officers’ Safety

       A trial court has the authority to supervise discovery in the interests of justice.

Code of Civil Procedure section 2031.060, subdivision (b) authorizes a court to issue

a protective order, for good cause shown, “to protect any party or other person from

unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”

       Tillman did not serve a formal inspection demand (Code Civ. Proc., § 2031.030),

but instead filed a motion for disclosure of peace officer personnel records under

Evidence Code section 1043. In light of our conclusion that the service photographs are

not personnel records, Evidence Code section 1043 does not govern their discovery or

disclosure. The proper procedure to demand an inspection of the photographs would be

to serve an inspection demand under Code of Civil Procedure section 2031.030. The

proper procedure to seek protection against the threat to the safety and security of the

officers arising from the disclosure of their photographs in these circumstances would

be to file a motion for a protective order under Code of Civil Procedure

section 2031.060, including the required meet and confer declaration (id., subd. (a)). In

the interests of justice and judicial economy, we will deem Tillman‟s motion for

disclosure as a demand for inspection of the photographs and deem Petitioners‟

opposition to such motion as a motion for a protective order.

       In our view, to allow the unmonitored display of Petitioners‟ photographs

throughout the population of inmates at the jail in connection with the allegations

against the guards in this case would pose an unreasonable risk of harm to Petitioners.


                                             14
The display of Petitioners‟ photographs to the inmates, many of whom are violent and

dangerous and associate with other violent and dangerous individuals, could generate

anger, resentment and attempts at retribution, regardless of whether the allegations

against them are true. We believe that the photographs should at all times remain under

the control and in the possession of a neutral third party designated by the trial court and

under the court‟s supervision. They should be made available for viewing at the jail, the

courthouse or some other secure location, and only by potential witnesses in this matter

who are identified by name before viewing the photographs. The photographs should

not be copied. These restrictions will afford a measure of protection to Petitioners while

allowing Tillman to satisfy his legitimate discovery needs. We conclude that the trial

court abused its discretion by compelling the disclosure of the photographs without

imposing such limitations.

       We also consider it appropriate at this time to require Petitioners‟ counsel to

(1) meet and confer with plaintiff‟s counsel in an effort to agree to specific terms of

a protective order consistent with the views expressed in this opinion, and (2) submit to

the trial court a meet and confer declaration as required by Code of Civil Procedure

section 2031.060, subdivision (a). In the event that the parties are unable to agree on

terms of such protective order, then the trial court shall, as provided in

section 2031.060, subdivision (b), prepare and issue such order as is consistent with the

requirements specified herein.




                                             15
                                      DISPOSITION

       The petition for writ of mandate is granted. Let a peremptory writ of mandate

issue directing the trial court to vacate its order of October 24, 2012, as to Petitioners‟

service photographs and conduct further proceedings consistent with the views

expressed in this opinion. Petitioners shall recover their costs in these appellate

proceedings.



       CERTIFIED FOR PUBLICATION



                                                                  CROSKEY, Acting P. J.

WE CONCUR:



       KITCHING, J.



       ALDRICH, J.




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