Page 24 - Sept 2017

Who is protecting the files?
The age of “transparency” is upon us, and with it comes certain realities. Governmen- tal agencies have taken a 180-degree
turn with respect to its responses to
FOIA requests. For years, these agen-
cies served as the definitive gatekeep-
ers and dismissed these requests with a boilerplate version of denials. Suddenly,
the practice changed, and information was being produced regularly, whether or not it
was even specifically requested in the FOIA. The ocean- liner known as the government changed course with the speed of a small sailboat. The question becomes: Who is protecting our assets?
Recently, the California Court of Appeals, in the case of Association for Los Angeles Deputy Sheriffs v. Superior Court, 2017 WL 2962901, prohibited the disclosure of the identities of officers on a so-called Brady list, identifying officers who have sustained allegations of misconduct involving moral turpitude or other bad acts relevant to impeachment. In Brady v. Maryland, the Unites States Supreme Court held that constitutional due process cre-
ates an affirmative obligation on the part of the prose- cution to disclose all evidence that is exculpatory to acriminaldefendant,includingpossibleimpeach- mentmaterialforagovernmentwitnesssuchasa police officer. Eleven years after Brady, the Cali- fornia Supreme Court held in Pitchess v. Superior Court that a criminal defendant may discover in- formation from a police officer’s personnel file but that the criminal defendant must make an adequate showing that the information is relevant to their defense. In the case at issue here, the Los Angeles County Sher- iff’s Department created a so-called “Brady” list of dep- uties whose personnel files contain sustained allega- tions of misconduct allegedly involving moral turpitude or other bad acts relevant to impeachment. The LASD proposed to disclose that list to the district attorney, as well as to other prosecutorial agencies that handle LASD investigations, so that prosecutors in individual cases could file Pitchess motions to discover the underlying misconduct or advise the defense of the disclosure so the
defense could file its own Pitchess motion.
The union representing the officers opposed disclo-
FOP
Legal Rep t
DANIEL HERBERT
24 CHICAGO LODGE 7 ■ SEPTEMBER 2017