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This case concerns the relationship between prosecutors’

constitutional duty to disclose information to criminal

defendants and a statutory scheme that restricts prosecutors’

access to some of that information.

A prosecutor in a criminal case must disclose to the

defense certain evidence that is favorable to the accused. (Brady

v. Maryland (1963) 373 U.S. 83 (Brady).) This duty sometimes

requires disclosure of evidence that will impeach a law

enforcement officer’s testimony. (Giglio v. United States (1972)

405 U.S. 150, 154-155 (Giglio).) Such disclosure may be

required even if the prosecutor is not personally aware that the

evidence exists. (Kyles v. Whitley (1995) 514 U.S. 419, 437

(Kyles).) Because the duty to disclose may sweep more broadly

than the prosecutor’s personal knowledge, the duty carries with

it an obligation to “learn of any favorable evidence known to the

others acting on the government’s behalf in the case, including

the police.” (Ibid.)

The so-called Pitchess statutes, however, restrict a

prosecutor’s ability to learn of and disclose certain information

regarding law enforcement officers. (See Pitchess v. Superior

Court (1974) 11 Cal.3d 531; see also Johnson v. Superior Court

(2015) 61 Cal.4th 696, 712-714 (Johnson).) Most notably, Penal

Code section 832.7 renders confidential certain personnel

records and records of citizens’ complaints, as well as

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information “obtained from” those records. (Pen. Code, § 832.7,

subd. (a) (section 832.7(a)).) Upon a motion showing good cause,

a litigant may obtain a court’s in camera inspection of the

confidential information and, possibly, win the information’s

disclosure. But the less reason there is to believe that an officer

has engaged in misconduct, the harder it is to show good cause.

In part to address this issue, some law enforcement

agencies have created so-called Brady lists. These lists

enumerate officers whom the agencies have identified as having

potential exculpatory or impeachment information in their

personnel files — evidence which may need to be disclosed to the

defense under Brady and its progeny. (See Brady, supra, 373

U.S. at p. 87.) Disclosure of the fact that an officer is on a Brady

list both signals that it may be appropriate to file a motion

seeking in camera inspection and helps to establish good cause

for that inspection. We recently described this Brady-alert

practice as “laudabl[e].” (Johnson, supra, 61 Cal.4th at p. 721.)

Petitioner in this case is the Association for Los Angeles

Deputy Sheriffs. The Association obtained a preliminary

injunction preventing the Los Angeles County Sheriff’s

Department from disclosing the identity of deputies on the

Department’s Brady list. The injunction included an exception,

permitting disclosure to prosecutors when a deputy is a

potential witness in a pending prosecution. The Court of Appeal

held that the exception is impermissible under the Pitchess

statutes. We granted review to decide the following question:

“When a law enforcement agency creates an internal Brady list

[citation], and a peace officer on that list is a potential witness

in a pending criminal prosecution, may the agency disclose to

the prosecution (a) the name and identifying number of the

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officer and (b) that the officer may have relevant exonerating or

impeaching material in [that officer’s] confidential personnel

file . . . ?” We conclude that the Pitchess statutes permit such

disclosure.

I. FACTUAL AND PROCEDURAL HISTORY

A. The Brady List

In late 2016, the Association counted among its members

approximately 7,800 deputy sheriffs. The Department sent a

letter to roughly 300 of those deputies, informing them that a

review of “individual employees’ personnel records” had

“identified potential exculpatory or impeachment information in

your personnel file.” Among other things, the letter served to

“remind” deputies “about the existence of this material.”

According to the letter, “[e]xamples of performance

deficiencies” that qualify as potential Brady material “include,

but are not limited to, founded administrative investigations

involving violations of” any of nearly a dozen sections of the

Department’s Manual of Policy and Procedures. Those sections

concern: (1) “Immoral Conduct”; (2) “Bribes, Rewards, Loans,

Gifts, Favors”; (3) “Misappropriation of Property”;

(4) “Tampering with Evidence”; (5) “False Statements”;

(6) “Failure to make Statements and/or Making False

Statements During Departmental Internal Investigations”;

(7) “Obstructing an Investigation/Influencing a Witness”;

(8) “False Information in Records”; (9) “Policy of Equality –

Discriminatory Harassment”; (10) “Unreasonable Force”; and

(11) “Family Violence.” Notwithstanding the letter’s claim that

such violations were mere “[e]xamples of performance

deficiencies” that might justify inclusion on the Brady list, other

materials in the record suggest that the letter was only sent to

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deputies understood to have violated at least one of those

enumerated policies.

The letter further advised deputies that, “in order to

comply with our constitutional obligations,” the Department is

“required to provide the names of employees with potential

exculpatory or impeachment material in their personnel file to

the District Attorney and other prosecutorial agencies where the

employee may be called as a witness.” Later correspondence

indicated that the deputy’s employee number might also be

provided. Consistent with that later correspondence, however,

the initial letter stressed that “no portion of an investigation or

contents of your file will be turned over to either the prosecution

or the defense absent a court order.” Deputies were also

afforded an opportunity to object to their inclusion on the Brady

list, by informing the Department that “the deputy did not have

a founded administrative investigation finding on one of the

above policy violations” or that “any such founded investigation

had been overturned in a settlement agreement or pursuant to

an appeal.”

B. Trial Court

As relevant here, the Association filed a petition for writ

of mandate and a complaint seeking preliminary and permanent

injunctive relief. It sought to prevent the Department from

disclosing the identity of deputies on the Brady list absent

compliance with Pitchess procedures. The Department agreed

to postpone disclosure until the court ruled on the request for a

preliminary injunction. (Association for Los Angeles Deputy

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Sheriffs v. Superior Court (2017) 13 Cal.App.5th 413, 421

(Deputy Sheriffs).)1

The trial court granted the request in part. It agreed with

the Association that the identity of peace officers on the Brady

list was confidential under the Pitchess statutes because the list

linked officers to disciplinary action reflected in their personnel

records. The court further agreed that Brady did not authorize

disclosure of the list at the Department’s discretion,

unconnected to any criminal case. Over the Association’s

objection, however, the court ruled that the Department was

“not . . . enjoined from disclosing the fact that an individual

Deputy Sheriff is listed on the Sheriff’s Department’s ‘Brady

List’ when a criminal prosecution is pending and the Deputy

Sheriff at issue is involved in the pending prosecution as a

potential witness.”

C. Court of Appeal

The Association petitioned the Court of Appeal for a writ

of mandate and requested an immediate stay. The court

granted the stay request, effectively expanding the trial court’s

injunction to prevent disclosure of officer identities (outside of

the Pitchess process) without regard to whether a prosecution

was pending. After issuing an order to show cause, a divided

panel of the Court of Appeal granted the writ petition in



1 The Association sought relief against several other

individuals or entities, including then-Sheriff Jim McDonnell

and the County of Los Angeles. For ease of reference, and

because these real parties in interest are similarly situated, we

refer to the Department throughout.

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pertinent part. (Deputy Sheriffs, supra, 13 Cal.App.5th at

p. 448.)

The Court of Appeal observed that the Pitchess statutes

make confidential certain personnel records and information

obtained from those records. (Deputy Sheriffs, supra, 13

Cal.App.5th at p. 433.) Echoing the trial court, the Court of

Appeal reasoned that “[n]otifying an outside agency, even a

prosecutor’s office, that a deputy has an administratively

founded allegation of misconduct . . . cannot be characterized as

anything other than disclosing information obtained from the

peace officer’s personnel file.” (Id., at p. 435.) The appellate

court did not agree, however, that disclosure could be made

whenever an officer on the Brady list was a potential witness in

a pending case. The court thus ordered the trial court “to strike

from the injunction any language” permitting disclosure of “the

identity of any individual deputy on the . . . Brady list to any

individual or entity outside the [Department], even if the deputy

is a witness in a pending criminal prosecution, absent a properly

filed, heard, and granted Pitchess motion, accompanied by a

corresponding court order.” (Id., at p. 448.)

Justice Grimes dissented in pertinent part. She concluded

that a Pitchess motion is not “required to transfer, between

members of the prosecution team, the identities of officers

involved in a pending prosecution who may have Brady

materials in their personnel records.” (Deputy Sheriffs, supra,

13 Cal.App.5th at p. 449 (conc. & dis. opn. of Grimes, J.).)

D. Enactment of Senate Bill 1421

We granted review. While this matter was pending before

us, Senate Bill No. 1421 (2017-2018 Reg. Sess.) (Senate Bill

1421) amended one of the statutes relevant to the question

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presented. (See Stats. 2018, ch. 988, § 2, eff. Jan. 1, 2019; see

also § 832.7(a).) We obtained supplemental briefing regarding

the significance of the enactment.

II. BRADY AND PITCHESS

We begin by describing Brady and Pitchess, as an

understanding of each is necessary to understanding the

relationship between them. (See, e.g., City of Los Angeles v.

Superior Court (2002) 29 Cal.4th 1, 7-10 (City of Los Angeles).)

A. Brady

The Fourteenth Amendment to the federal Constitution

prohibits states from denying any person due process of law.

(U.S. Const., 14th Amend.) This guarantee of due process

affords criminal defendants the right to a fair trial, “impos[ing]

on States certain duties consistent with their sovereign

obligation to ensure ‘that “justice shall be done.” ’ ” (Cone v. Bell

(2009) 556 U.S. 449, 451.)

Prosecutors, as agents of the sovereign, must honor these

obligations. (See Kyles, supra, 514 U.S. at p. 438; Mooney v.

Holohan (1935) 294 U.S. 103, 112-113 (per curiam).) A

prosecutor must refrain from using evidence that the prosecutor

knows to be false. (Mooney, at pp. 112-113; see also Pyle v. State

of Kansas (1942) 317 U.S. 213, 216.) A prosecutor must correct

false evidence “when it appears.” (Napue v. Illinois (1959) 360

U.S. 264, 269.) And, under Brady, a prosecutor must disclose to

the defense evidence that is “favorable to [the] accused” and

“material either to guilt or to punishment.” (Brady, supra, 373

U.S. at p. 87.)

“For Brady purposes, evidence is favorable if it helps the

defense or hurts the prosecution, as by impeaching a prosecution

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witness.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1132; see

also United States v. Bagley (1985) 473 U.S. 667, 676; Giglio,

supra, 405 U.S. at pp. 154-155.) Evidence is material “ ‘if there

is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different.’ ” (Kyles, supra, 514 U.S. at pp. 433-434.) Evaluating

materiality requires consideration of the collective significance

of the undisclosed evidence (Kyles, at p. 436), as well as “the

effect of the nondisclosure on defense investigations and trial

strategies” (Zambrano, at p. 1132). (See also Kyles, at p. 439;

Bagley, at p. 701 (dis. opn. of Marshall, J.).) “A reasonable

probability does not mean that the defendant ‘would more likely

than not have received a different verdict with the evidence,’

only that the likelihood of a different result is great enough to

‘undermine[] confidence in the outcome of the trial.’ ” (Smith v.

Cain (2012) 565 U.S. 73, 75.)

This materiality standard applies both after judgment,

when evaluating whether Brady was violated, and before

judgment, when evaluating whether evidence favorable to the

defense must be disclosed. (See Kyles, supra, 514 U.S. at

pp. 437-438; United States v. Agurs (1976) 427 U.S. 97, 108.)

Because it may be difficult to know before judgment what

evidence will ultimately prove material, “the prudent prosecutor

will resolve doubtful [Brady] questions in favor of disclosure.”

(Agurs, at p. 108; see also Kyles, at pp. 438-439.) Statutory and

ethical obligations may require even more. (See, e.g., Pen. Code,

§ 1054.1, subds. (d)-(e) [statutory disclosure obligation]; Rules

Prof. Conduct, rule 3.8(d) & com. [3] [ethical disclosure

obligation].)

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B. Pitchess

Without relying on Brady, our decision in Pitchess

“recognized that a criminal defendant may, in some

circumstances, compel the discovery of evidence in the arresting

law enforcement officer’s personnel file that is relevant to the

defendant’s ability to defend against a criminal charge.” (People

v. Mooc (2001) 26 Cal.4th 1216, 1219 (Mooc).) “In 1978, the

Legislature codified the right” and defined “which officer records

are subject to Pitchess discovery.” (Galindo v. Superior Court

(2010) 50 Cal.4th 5.) “The statutory scheme is set forth in

Evidence Code sections 1043 through 1047 and Penal Code

sections 832.5, 832.7, and 832.8.” (Mooc, at p. 1226.) These

Pitchess statutes “reflect[] the Legislature’s attempt to balance

a litigant’s discovery interest with an officer’s confidentiality

interest.” (Riverside County Sheriff’s Dept. v. Stiglitz (2014)

60 Cal.4th 624, 639 (Stiglitz).)

The threshold question under the Pitchess statutes is

whether the information requested is confidential. (See Pen.

Code, § 832.7, subds. (a)-(b).) If it is, the information may

generally be disclosed only “by discovery pursuant to” Evidence

Code sections 1043, 1045, and 1046. (§ 832.7(a); see Johnson,

supra, 61 Cal.4th at p. 712, fn. 2.) Requests for disclosure are

ordinarily made in criminal cases but may also arise in

connection with civil or quasi-criminal proceedings. (See

§ 832.7(a); see also, e.g., Stiglitz, supra, 60 Cal.4th at p. 628

[appeal of employee discipline]; City of San Jose v. Superior

Court (1993) 5 Cal.4th 47, 53 (City of San Jose) [juvenile

wardship proceeding].)

A party seeking disclosure under the Pitchess statutes

must file a written motion and give notice to the agency with

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custody and control of the records. (Evid. Code, § 1043, subd.

(a).) Among other things, the motion must identify the officer or

officers at issue (id., § 1043, subd. (b)(1)); describe “the type of

records or information” desired (id., § 1043, subd. (b)(2)); and, by

affidavit, show “good cause for the discovery or disclosure

sought” (id., § 1043, subd. (b)(3)).2

This “good cause” requirement has two components. First,

the movant must set forth “the materiality” of the information

sought “to the subject matter involved in the pending litigation.”

(Evid. Code, § 1043, subd. (b)(3).) The function of this

requirement is to “exclude[] requests for officer information that

are irrelevant to the pending charges.” (Warrick v. Superior

Court (2005) 35 Cal.4th 1011, 1021.) If the movant shows that

the request is “relevant to the pending charges, and explains

how, the materiality requirement will be met.” (Johnson, supra,

61 Cal.4th at p. 721; see also Richardson v. Superior Court

(2008) 43 Cal.4th 1040, 1048-1049 [“The materiality standard is

met if evidence of prior complaints is admissible or may lead to

admissible evidence”].) If information is “material” within the

meaning of Brady, it is necessarily material “to the subject

matter involved in” a criminal prosecution. (Evid. Code, § 1043,

subd. (b)(3); see City of Los Angeles, supra, 29 Cal.4th at p. 10.)

Second, the “good cause” requirement obliges the movant

to articulate “a ‘reasonable belief’ that the agency has the type



2 The affidavit may be executed by an attorney based on

information and belief; personal knowledge is not required. (See

Garcia v. Superior Court (2007) 42 Cal.4th 63, 74; see also City

of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 73, 86 (City

of Santa Cruz); People v. Memro (1985) 38 Cal.3d 658, 676

(Memro).)

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of information sought.” (City of Santa Cruz, supra, 49 Cal.3d at

p. 84; see also Evid. Code, § 1043, subd. (b)(3).) This belief “may

be based on a rational inference” (Johnson, supra, 61 Cal.4th at

p. 721); for example, that because officers allegedly used

excessive force in a pending case, “other complaints of excessive

force ‘may have been filed’ ” (City of Santa Cruz, at p. 90; see

also id., at p. 93, fn. 9). Certainly, a movant is not required “ ‘to

allege with particularity the very information’ ” sought.

(Johnson, at p. 721, quoting Memro, supra, 38 Cal.3d at p. 684.)

At the least, the requisite “reasonable belief” exists when a

movant declares that the agency from which the movant seeks

records has placed the officer at issue on a Brady list. (See ibid.)

The function of the “good cause” requirement at this stage

of the Pitchess process is not to determine whether documents

will be disclosed to the movant; it is to determine whether

information will be reviewed in camera. Accordingly, the

burden imposed by the requirement “is not high.” (Johnson,

supra, 61 Cal.4th at p. 720; see City of Santa Cruz, supra,

49 Cal.3d at p. 84 [requirement is designed to ensure “the

production for inspection of all potentially relevant

documents”].)

When a court determines that a movant has made a

showing sufficient to justify in camera inspection, “the custodian

of records should bring to court all documents ‘potentially

relevant’ to the . . . motion.” (Mooc, supra, 26 Cal.4th at

p. 1226.) “[I]f the custodian has any doubt whether a particular

document is relevant, [the custodian] should present it to the

trial court.” (Id., at p. 1229.) The court must examine those

documents “in conformity with [Evidence Code] section 915 (i.e.,

out of the presence of all persons except the person authorized

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to claim the privilege and such other[s as that person] is willing

to have present).” (City of Santa Cruz, supra, 49 Cal.3d at p. 83;

see Evid. Code, §§ 915, 1045, subd. (b).) To facilitate appellate

review, the court should make a record of what it has examined.

(See People v. Townsel (2016) 63 Cal.4th 25, 69; see also Mooc,

at p. 1229-1230; see generally People v. Gaines (2009) 46 Cal.4th

172.) Questioning the custodian of records under oath regarding

which documents were produced helps both to facilitate

appellate review and to ensure that information is not withheld

from the movant improperly. (See Mooc, at p. 1229 & fn. 4.)

After conducting in camera review, a court has discretion

regarding which documents, if any, it will disclose to a movant.

(See, e.g., People v. Myles (2012) 53 Cal.4th 1181, 1209.)

Evidence Code section 1045 guides the exercise of that

discretion, requiring the court to “exclude from disclosure”

certain information (id., § 1045, subd. (b)(1)-(3)) and to

“consider” whether the movant could obtain certain other

information without disclosure of individual personnel records

(id., § 1045, subd. (c)). (See also Evid. Code, § 1047; Stiglitz,

supra, 60 Cal.4th at pp. 641-642.) Notwithstanding these

provisions, however, the court must disclose information that is

favorable to the defense and “material” within the meaning of

Brady. (Johnson, supra, 61 Cal.4th at p. 720.)

Finally, the Pitchess statutes protect information that is

disclosed to a movant from further dissemination. “The court

shall, in any case or proceeding permitting the disclosure or

discovery of any peace or custodial officer records requested

pursuant to [Evidence Code] Section 1043, order that the

records disclosed or discovered may not be used for any purpose

other than a court proceeding pursuant to applicable law.”

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(Evid. Code, § 1045, subd. (e); see generally Chambers v.

Superior Court (2007) 42 Cal.4th 673; Alford v. Superior Court

(2003) 29 Cal.4th 1033.) Upon a proper motion by the custodian

or the officer at issue, the court may also “make any order which

justice requires to protect the officer or agency from unnecessary

annoyance, embarrassment or oppression.” (Evid. Code, § 1045,

subd. (d).)

III. ANALYSIS

Familiar principles of statutory interpretation guide our

analysis of the Pitchess statutes. (See, e.g., People v.

Castillolopez (2016) 63 Cal.4th 322, 329 [describing those

principles].) In particular, we bear in mind that the Pitchess

statutes “must be viewed against the larger background of the

prosecution’s” Brady obligation “so as not to infringe the

defendant’s right to a fair trial.” (Mooc, supra, 26 Cal.4th at

p. 1225.) As discussed below, these principles point toward two

main conclusions. First, the Department’s Brady list is

confidential to the extent it was derived from confidential

records. Second, the Department does not violate that

confidentiality by sharing with prosecutors the identity of

potential witnesses on the Brady list.

A. The Department’s Brady List Is Confidential to

the Extent That Officers Were Included on the

List Because of Information Obtained from

Confidential Records

To the extent the Department placed officers on the Brady

list based on information found in confidential records, the

identities of those officers were “obtained from” the records and

are thus also confidential. (§ 832.7(a).) Under legislation

enacted while this litigation was pending, however, certain

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records related to officer misconduct are not confidential. (See

Pen. Code, § 832.7, subd. (b) (section 832.7(b)).) Because such

records are not confidential, information “obtained from” those

records is also not confidential. (§ 832.7(a).) With one possible

exception not relevant here (see id., § 832.7, subd. (b)(8)), the

Pitchess statutes do not prevent the Department from disclosing

— to anyone — the identity of officers whose records contain

that nonconfidential information.

1. Section 832.7(a) creates three categories of

confidential information

In pertinent part, section 832.7(a) instructs that, “[e]xcept

as provided in subdivision (b), the personnel records of peace

officers and custodial officers and records maintained by any

state or local agency pursuant to [Penal Code] Section 832.5, or

information obtained from these records, are confidential and

shall not be disclosed in any criminal or civil proceeding except

by discovery pursuant to Sections 1043 and 1046 of the Evidence

Code.” (Italics added.) This provision does not merely restrict

disclosure in criminal and civil proceedings; it creates a

generally applicable condition of confidentiality and recognizes

an exception for “discovery pursuant to” certain portions of the

Evidence Code. (Ibid.; see Copley Press, Inc. v. Superior Court

(2006) 39 Cal.4th 1272, 1285-1286 (Copley Press).)

Absent an exception, the confidentiality afforded by

section 832.7(a) extends to three categories of information. (See

Copley Press, supra, 39 Cal.4th at p. 1284.) First, it reaches

“personnel records of peace officers and custodial officers.”

(§ 832.7(a).) Among other things, this category shields certain

records that relate to “[e]mployee . . . discipline” (Pen. Code,

§ 832.8, subd. (a)(4)) or certain “[c]omplaints, or investigations

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of complaints, . . . pertaining to the manner in which [the

employee] performed [the employee’s] duties” (id., § 832.8, subd.

(a)(5)). (See also Long Beach Police Officers Assn. v. City of Long

Beach (2014) 59 Cal.4th 59, 71-72 (Long Beach); Commission on

Peace Officer Standards & Training v. Superior Court (2007)

42 Cal.4th 278, 291 (Commission on POST).)

The second category of confidential information

encompasses “records maintained by any state or local agency

pursuant to [Penal Code] Section 832.5.” (§ 832.7(a).) Section

832.5 “requires ‘[e]ach department or agency in [California] that

employs peace officers [to] establish a procedure to investigate

complaints by members of the public against the personnel of

these departments or agencies . . . .’ ” (Copley Press, supra,

39 Cal.4th at p. 1283, quoting Pen. Code, § 832.5, subd. (a)(1).)

Such “[c]omplaints and any reports or findings relating” to them

“shall be retained for a period of at least five years,” and must

generally be “maintained either in the peace or custodial

officer’s general personnel file or in a separate file.” (Pen. Code,

§ 832.5, subd. (b); see also id., § 832.5, subds. (c), (d)(1).)

The third and final category of confidential information is

“information obtained from” the prior two types of records.

(§ 832.7(a); see Commission on POST, supra, 42 Cal.4th at

p. 289.) “In its ordinary sense, to obtain information means to

come into possession of it.” (International Federation of

Professional & Technical Engineers, Local 21, AFL-CIO v.

Superior Court (2007) 42 Cal.4th 319, 344, italics removed.)

Thus, the phrase “information obtained from” certain records

(§ 832.7(a)) “is most reasonably read to encompass information

that was acquired from” those records (Internat. Federation, at

p. 344).

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2. Senate Bill 1421 excludes certain information from

section 832.7(a)’s provision of confidentiality

Senate Bill 1421 amended Penal Code section 832.7. The

plain text of the amended statute excludes certain information

from the confidentiality afforded by section 832.7(a). As

amended, subdivision (a) applies “[e]xcept as provided in

subdivision (b).” Subdivision (b) declares in turn that,

“[n]otwithstanding . . . any other law,” certain “peace officer or

custodial officer personnel records and records maintained by

any state or local agency shall not be confidential and shall be

made available for public inspection pursuant to the California

Public Records Act.” (Pen. Code, § 832.7, subd. (b)(1), italics

added.) It follows that if subdivision (b) deems records “not . . .

confidential,” they are not “confidential” under subdivision (a).

And if records are “not . . . confidential” because of subdivision

(b), it would be nonsensical to conclude that subdivision (a)

renders “information obtained from” those nonconfidential

records “confidential.” Thus, if subdivision (b) deems a record

nonconfidential, the record, or information obtained from it, is

not confidential.

Senate Bill 1421 deems three types of records

nonconfidential. First, records “relating to the report,

investigation, or findings” of an incident in which an officer

(i) discharged a firearm at a person or (ii) used force against a

person resulting in death or great bodily injury. (Pen. Code,

§ 832.7, subd. (b)(1)(A).) Second, records “relating to an incident

in which a sustained finding was made by any law enforcement

agency or oversight agency” that an officer “engaged in sexual

assault involving a member of the public.” (Id., § 832.7, subd.

(b)(1)(B)(i).) And third, “[a]ny record relating to an incident in

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which a sustained finding was made by any law enforcement

agency or oversight agency of dishonesty by a peace officer or

custodial officer directly relating to the reporting, investigation,

or prosecution of a crime, or directly relating to the reporting of,

or investigation of misconduct by, another peace officer or

custodial officer, including, but not limited to, any sustained

finding of perjury, false statements, filing false reports,

destruction, falsifying, or concealing of evidence.” (Id., § 832.7,

subd. (b)(1)(C); see also id., § 832.7, subd. (b)(2)-(4).) Any portion

of a Brady list based on these types of records is not confidential,

and section 832.7(a) does not restrict dissemination of such

information.

It is true that Senate Bill 1421 does not “affect the

discovery or disclosure of information contained in a peace or

custodial officer’s personnel file pursuant to Section 1043 of the

Evidence Code.” (Pen. Code, § 832.7, subd. (g).) Nor does it

“supersede or affect the criminal discovery process outlined in

Chapter 10 (commencing with [Evidence Code] Section 1054) of

Title 6 of Part 2, or the admissibility of personnel records

pursuant to subdivision (a), which codifies the court decision in

Pitchess v. Superior Court (1974) 11 Cal.3d 531.” (Id., § 832.7,

subd. (h).) But these provisions are beside the point. It may be

that Senate Bill 1421 does not expand the set of information that

a criminal defendant is entitled to receive through the Pitchess

process, an issue on which we need take no position here. For

present purposes, it is enough to say that even if Senate Bill

1421 does not increase the amount of information that a

defendant can compel an agency to disclose, the bill, by making

certain records nonconfidential, reduces the amount of

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information that agencies are forbidden from disclosing

voluntarily.

We do not suggest that nonconfidential records must be

fully disclosed, at any time, under the California Public Records

Act. As amended, Penal Code section 832.7 contemplates that

it may be appropriate for an agency to redact records (id.,

§ 832.7, subd. (b)(5)-(6)) or to delay disclosure of records to avoid

interference with certain investigations or enforcement

proceedings (id. § 832.7, subd. (b)(7)). Moreover, separate and

apart from any confidentiality, Penal Code section 832.7,

subdivision (b)(8) instructs that “[a] record of a civilian

complaint, or the investigations, findings, or dispositions of that

complaint, shall not be released pursuant to this section if the

complaint is frivolous, as defined in Section 128.5 of the Code of

Civil Procedure, or if the complaint is unfounded.” Thus, our

conclusion that records described in section 832.7(b) are not

“confidential” (§ 832.7(a)) does not mean that they are

invariably open for public inspection over the agency’s

objection.

3



With this revised statutory scheme in mind, we turn to the

question whether the Department’s Brady list is confidential.

3. The record does not support a conclusion that the

Brady list is nonconfidential

Putting subdivision (b) aside, there is no serious question

that the Department reviewed “the personnel records of peace



3 We express no view regarding whether an agency

“release[s]” records concerning frivolous or unfounded civilian

complaints “pursuant to this section” when it shares them only

with a prosecutor’s office. (Pen. Code, § 832.7, subd. (b)(8).)

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officers” when creating the Brady list. (§ 832.7(a).) The parties

do not dispute that the deputies included on the list are “peace

officers.” (Ibid.) Nor is there any doubt that the Department

created its list by reviewing “the personnel records of” those

officers. (Ibid.) The Department’s initial letter to deputies

explained that they were being contacted because a review of

“personnel records” “identified potential exculpatory or

impeachment information in your personnel file.” Later

correspondence clarified that deputies were contacted “due to a

prior FOUNDED allegation of misconduct involving the Manual

of Policies and Procedures (MPP), i.e.[,] a sustained finding that

reflects moral turpitude, untruthfulness, or bias.” This

phrasing appears to refer to the statutory definition of

“ ‘[s]ustained,’ ” which “means a final determination . . . ,

following an investigation . . . that the actions of the peace officer

or custodial officer were found to violate law or department

policy.” (Pen. Code, § 832.8, subd. (b); see also id., § 832.8, subd.

(c) [“ ‘Unfounded’ means that an investigation clearly

establishes that the allegation is not true”].) Given this record,

we have no reason to doubt that the Department created the

Brady list by reviewing, at the least, personnel records “relating

to . . . [¶] . . . [e]mployee . . . discipline.” (Id., § 832.8, subd. (a)(4)

[defining personnel records].)

This conclusion entails another: The identities of officers

on the Brady list constitute “information obtained from” “the

personnel records of peace officers.” (§ 832.7(a).) The Brady list

is a catalog of officers with a particular kind of discipline-related

information in their personnel file. It was derived from

information in those files. It follows that, barring the

applicability of an exception, the Pitchess statutes render

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confidential the identities of officers on the Brady list. To hold

otherwise would mean that section 832.7(a) affords the Brady

list no protection at all.

An amicus curiae brief contends that the phrase

“information obtained from these records” (§ 832.7(a)) “could

reasonably be interpreted to refer only to information in the

records, and not to the mere fact that certain information may

exist.” Thus, the argument continues, the Department’s

“generic” notification that “ ‘there may be Brady material in the

officer’s personnel records,’ ” is not a disclosure of “information

obtained from” the records (§ 832.7(a)).

We disagree. Based on the Department’s explanation of

how the Brady list at issue in this case was assembled (see ante,

pt. I.A), the Department’s disclosure that there “may” be Brady

material in an officer’s personnel records is, in effect, a

disclosure that the officer has been found to have committed

misconduct. This is not a “generic” disclosure merely because

the misconduct could have been one of several kinds of

misconduct, nor because evidence of the misconduct might not

be “material” within the meaning of Brady in a particular case.

(Cf. Copley Press, supra¸ 39 Cal.4th at p. 1297 [section 832.7(a)

“is designed to protect, among other things, ‘the identity of

officers’ subject to complaints”].)

Moreover, information is no less “obtained from”

confidential records merely because it is abstracted before it is

disclosed. As relevant here, Penal Code Section 832.7,

subdivision (d) instructs that, “notwithstanding” the

confidentiality created by subdivision (a), “a department or

agency that employs peace or custodial officers may disseminate

data regarding the number, type, or disposition of complaints

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(sustained, not sustained, exonerated, or unfounded) made

against its officers if that information is in a form which does

not identify the individuals involved.” (Id., § 832.7, subd. (d).)

This exception would be unnecessary if providing information

about confidential records categorically fell outside of the

“information obtained from” provision. (§ 832.7(a).)

In light of Senate Bill 1421, however, some of the records

reviewed by the Department may not be confidential. (See, e.g.,

Pen. Code, § 832.7, subd. (b)(1)(C).) If the records are not

confidential, then information “obtained from” those records is

also not confidential. The record on appeal in this case was not

developed with Senate Bill 1421 in mind. Given the many

grounds that may have given rise to a deputy’s inclusion on the

Brady list, we cannot say that the list was derived entirely from

records rendered nonconfidential by Senate Bill 1421.

4



Nor can we say that a Brady list that includes both

confidential and nonconfidential information melds into a

single, nonconfidential whole. It is true that when a Brady list

includes both confidential information and nonconfidential

information, an officer’s presence on the list does not necessarily

communicate confidential information about that officer. In

such a situation, one cannot infer from the officer’s presence on

the list that there is impeachment information in the officer’s

confidential records. (Cf. Long Beach, supra, 59 Cal.4th at p. 73

[“disclosing the names of officers involved in various shootings”

was permissible, as it “would not imply that those shootings



4 We express no view concerning whether Senate Bill 1421

affects the confidentiality of records that existed before the

legislation’s effective date.

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resulted in disciplinary action against the officers, and it would

not link those names to any confidential personnel matters or

other protected information”]; Commission on POST, supra, 42

Cal.4th at p. 299 [names and employment dates of officers not

confidential, in part because that information “does not involve

the identification of an individual as the officer involved in an

incident that was the subject of a complaint or disciplinary

investigation”].) But this argument reflects too narrow a view

of the confidentiality afforded by the Pitchess statutes. When a

Brady list is created based on review of confidential records,

information is still unambiguously “obtained from” those

records. (§ 832.7(a).) It would be odd indeed to conclude that

the Legislature intended to sacrifice the confidentiality of one

officer’s records merely because the officer was listed alongside

others whose records were not confidential.

Further, because this argument focuses on whether

someone can infer information about confidential records from

the fact that an officer is on the Brady list, it appears to require

one of two dubious approaches. It could be that disclosure of the

fact that an officer is on the Brady list is permissible so long as

the list is not based entirely on confidential information. That,

after all, would be enough to sever the inference that if an officer

is on the list, there must be evidence of discipline in the officer’s

confidential file. But if that is correct, then a Brady list may be

created based on almost entirely confidential information, plus

one officer whose misconduct is not confidential. We doubt the

Legislature intended that result. Alternatively, it might be

necessary to determine whether there is a sufficient mix of

confidential and nonconfidential information such that it is

genuinely unclear on what basis an officer was included on the

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Brady list. But that line seems challenging to administer —

and, again, unmoored from the statutory text, which concerns

“information obtained from” confidential records.

Because we cannot say that the Brady list at issue in this

case is entirely nonconfidential, and because partial

nonconfidentiality would not strip the remainder of the list of its

confidential status, we next consider whether the Department

may disclose confidential information on its Brady list to

prosecutors.

B. The Department May Share Even Confidential

Portions of Its Brady List with Prosecutors

Our conclusion that portions of the Department’s Brady

list may be confidential raises the further question whether

sharing alerts based on such information with prosecutors

would be a violation of confidentiality. We conclude that the

confidentiality created by the Pitchess statutes does not forbid

the limited disclosure to prosecutors at issue in this case.

1. Section 832.7(a) permits the Department to share

Brady alerts with prosecutors

As noted, section 832.7(a) instructs that certain

information is “confidential and shall not be disclosed in any

criminal or civil proceeding except by discovery pursuant to

Sections 1043 and 1046 of the Evidence Code.” We made clear

in Copley Press that it is the condition of confidentiality that

restricts information sharing, not the “shall not be disclosed”

provision. (See Copley Press, supra, 39 Cal.4th at p. 1285; see

also Johnson, supra, 61 Cal.4th at pp. 713-714.) Regardless, any

limitation on “disclos[ure]” raises essentially the same question

as deeming information “confidential” (§ 832.7(a)): With whom,

if anyone, may the Department share confidential information?

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The statutory text alone provides no clear answer to this

question. “In common usage, confidentiality is not limited to

complete anonymity or secrecy. A statement can be made ‘in

confidence’ even if the speaker knows the communication will be

shared with limited others, as long as the speaker expects that

the information will not be published indiscriminately.”

(Department of Justice v. Landano (1993) 508 U.S. 165, 173; see

also Food Marketing Institute v. Argus Leader Media (2019) 588

U.S. ___ [2019 WL 2570624] [part III.A].) So, for example, it is

hard to imagine that the term “confidential” would categorically

forbid one employee of a custodian of records, tasked with

maintaining personnel files, from sharing those records with

another employee assigned to the same task. Put differently,

deeming information “confidential” creates insiders (with whom

information may be shared) and outsiders (with whom sharing

information might be an impermissible disclosure). The text of

the Pitchess statutes does not clearly indicate that prosecutors

are outsiders, forbidden from receiving confidential Brady

alerts.

5





5

If anything, the recent amendment to section 832.7(a)

tends to indicate that the condition of confidentiality is meant

to shield information from the public’s eyes — not from the eyes

of government officials who may need that information to satisfy

a constitutional obligation. (See Pen. Code, § 832.7, subd. (b)(1)

[certain records “shall not be confidential and shall be made

available for public inspection pursuant to the California Public

Records Act”]; cf. Copley Press, supra, 39 Cal.4th at p. 1285 [Pen.

Code, § 832.7, subds. (c)-(d), “specify circumstances under which

information may be released to the general public and the scope

of information that may be released”].)

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Viewing the Pitchess statutes “against the larger

background of the prosecution’s [Brady] obligation” (Mooc,

supra, 26 Cal.4th at p. 1225), we instead conclude that the

Department may provide prosecutors with the Brady alerts at

issue here without violating confidentiality.

There can be no serious doubt that confidential personnel

records may contain Brady material. An officer may provide

important testimony in a criminal prosecution. Confidential

personnel records may cast doubt on that officer’s veracity. Such

records can constitute material impeachment evidence. (See,

e.g., Giglio¸ supra, 407 U.S. at pp. 154-155.) These are not close

questions.

Because confidential records may contain Brady material,

construing the Pitchess statutes to permit Brady alerts best

“harmonize[s]” Brady and Pitchess. (Deputy Sheriffs, supra,

13 Cal.App.5th at p. 450 (conc. & dis. opn. of Grimes, J.).) Brady

imposes on prosecutors “a duty to learn of any favorable

evidence known to the others acting on the government’s behalf

in [a] case, including the police.” (Kyles, supra, 514 U.S. at

p. 437.) Prosecutors are deemed constructively aware of Brady

material known to anyone on the prosecution team and must

share that information with the defense. (See In re Brown

(1998) 17 Cal.4th 873, 879.) In this context, construing the

Pitchess statutes to cut off the flow of information from law

enforcement personnel to prosecutors would be anathema to

Brady compliance.

Indeed, to interpret “confidential” as forbidding the

sharing of information with prosecutors would do more than

forbid the formal Brady-list-and-alert practice at issue here.

Even without formal procedures, conscientious prosecutors have

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conferred with law enforcement agencies to identify confidential

files that may contain impeachment material. (See, e.g.,

Johnson, supra, 61 Cal.4th at p. 707 [agency created Brady list

in the face of “ ‘unnecessary paperwork and personnel costs’ ”

caused by “ ‘[r]epetitive requests by the District Attorney that

the [Police] Department check employee personnel files of

Department employees who may be witnesses”].) If

“confidential” prevents formal procedures for sharing

information with prosecutors, it prevents informal tips as well.

Of course, no one suggests that the Pitchess statutes

completely prevent prosecutors from accessing confidential

personnel records. Section 832.7(a) includes an exception for

“investigations . . . concerning the conduct of peace officers or

custodial officers . . . conducted by . . . a district attorney’s office,

or the Attorney General’s office.” And prosecutors may file

Pitchess motions as appropriate. But the “investigations”

exception (§ 832.7(a)) does not apply merely because “[a] police

officer” is “a witness in a criminal case” (Johnson, supra,

61 Cal.4th at p. 714). And although the showing required for a

Pitchess motion to trigger in camera review “is not high”

(Johnson, at p. 720), neither is it imaginary. Without Brady

alerts, prosecutors may be unaware that a Pitchess motion

should be filed — and such a motion, if filed, may not succeed.

Thus, interpreting the Pitchess statutes to prohibit Brady alerts

would pose a substantial threat to Brady compliance.

It would also put deputies in a precarious position. The

Fourteenth Amendment underlying Brady imposes obligations

on states and their agents — not just, derivatively, on

prosecutors. Law enforcement personnel are required to share

Brady material with the prosecution. (See, e.g., Carrillo v.

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County of Los Angeles (9th Cir. 2015) 798 F.3d 1210, 1219-1223

& fn. 12.) The harder it is for prosecutors to access that

material, the greater the need for deputies to volunteer it.

The Association’s contrary view that “Brady relates only

to the prosecutor” and that “Brady . . . does not impose

obligations on law enforcement” is distressing and wrong. The

prosecution may bear ultimate responsibility for ensuring that

necessary disclosures are made to the defense (see In re Brown,

supra, 17 Cal.4th at p. 881), but that does not mean law

enforcement personnel have no role to play. This is not to imply

that Brady alerts are a constitutionally required means of

ensuring Brady compliance; only that disclosure of Brady

material is required, and that Brady alerts help to ensure

satisfaction of that requirement.

The Association further disputes that confidential

personnel records may contain Brady material. It argues that

“when a law enforcement agency maintains information about a

peace officer in [the officer’s] personnel file, it is acting in an

administrative, not an investigative, capacity, and such

information is not within the purview of the prosecutor’s duty

under Brady.”

This argument rests on a logical error. To be sure,

although the federal Constitution imposes a duty on states to

afford defendants a fair trial, a prosecutor is not responsible for

disclosing all information known to any part of a state. Instead,

if an “agency . . . has no connection to the investigation or

prosecution of the criminal charge against the defendant,” the

agency is not part of “the prosecution team,” and “the prosecutor

does not have the duty to search for or to disclose” “information

possessed by [that] agency.” (In re Steele (2004) 32 Cal.4th 682,

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697.) But it does not follow that information in an officer’s

confidential personnel file categorically falls outside the Brady

duty to disclose. Even if one assumes that a law enforcement

agency is not a member of the prosecution team when acting in

its capacity as a custodian of records — a proposition Steele does

not establish — it may be that others, who clearly are on the

prosecution team, are aware of the existence and content of

those records. A prosecutor, for example, may know from a prior

Pitchess motion that a confidential file contains Brady

information regarding an officer involved in a pending

prosecution. Moreover, the correspondence sent to deputies in

this case served to “remind” them about information in their

records, reflecting the fact that an officer will often (if not

always) be aware of the contents of the officer’s own confidential

file. Thus, even assuming that custodians are not necessarily

part of the prosecution team, it does not follow that confidential

personnel records are categorically unknown to the members of

that team.6



The Association also suggests that confidential records fall

outside the Brady duty to disclose because that duty extends

only “to information obtained during an investigation about a

criminal matter against a defendant.” (Italics added.) This, too,

is mistaken. What matters for Brady purposes is what the

prosecution team knows, not how the prosecution team knows

it. Suppose, for example, that a prosecutor is personally aware

(based on an earlier case) that a key witness in a pending



6 We need not hold that all information known to officers is

necessarily within the scope of the Brady duty. For now, it is

enough to say that records connected to officers’ discipline

cannot be categorically excluded from that duty.

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prosecution is a habitual liar who has been repeatedly convicted

of perjury. To say that the prosecutor need not disclose that

information merely because it was not “obtained during”

investigation of the defendant’s case would be irreconcilable

with the right to a fair trial underlying Brady; it would “cast[]

the prosecutor in the role of an architect of a proceeding that

does not comport with standards of justice.” (Brady, supra, 373

U.S. at p. 88; cf. City of San Jose, supra, 5 Cal.4th at p. 57

[noting People’s concession that Brady required disclosure, to

defendants charged with battery on police officers, of the fact

that an officer had been disciplined pursuant to a complaint of

excessive force].)

To be clear, we do not suggest that permitting Brady alerts

completely resolves the tension between Brady and the Pitchess

statutes. Not all departments maintain Brady lists. And

nothing guarantees that a Brady list will reflect all information

that might prove “material” in each particular case. (Brady,

supra, 373 U.S. at p. 87; see ante, pt. I.A.) But when 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 (see Mooc, supra,

26 Cal.4th at p. 1225), the term “confidential” (§ 832.7(a)) must

be understood to permit such alerts.7



7 To permit Brady alerts is not to require that Pitchess

motions be supported by such alerts; there may be good cause

for in camera inspection even if officers have been omitted from

a Brady list maintained by their department.

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2. Johnson does not require a contrary conclusion

The Court of Appeal relied on our decision in Johnson to

reach a contrary conclusion. We decline to extend that decision

to this context.

In Johnson, we rejected the view that prosecutors “may

always review the confidential personnel records of police

officers who are witnesses in a criminal case to determine

whether the records contain Brady material.” (Johnson, supra,

61 Cal.4th at p. 712.) Most notably, we reasoned: “[Section

832.7(a)] states that police officer personnel records are

‘confidential.’ It permits disclosure by use of the Pitchess

procedures but otherwise provides only one exception to the

confidentiality requirement — the exception for investigations.

This exception indicates that the Legislature considered the

range of situations in which prosecutorial need justifies direct

access to peace officer personnel records, and it decided that

those situations should be limited to ‘investigations or

proceedings concerning the conduct of peace officers or custodial

officers’ [citation], and does not extend to this context.”

(Johnson, at pp. 713-714.)

We acknowledge the argument that this analysis applies

to Brady alerts. Brady alerts communicate information

obtained from confidential records. That information, like the

underlying records, is “confidential.” (§ 832.7(a).) And nothing

in section 832.7(a) — including the investigations exception —

explicitly declares that different kinds of confidential

information should be treated differently. (See also Johnson,

supra, 61 Cal.4th at p. 714 [“prosecutors, as well as defendants,

must comply with the Pitchess procedures if they seek

information from confidential personnel records”].)

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That said, there is no question that our decision in

Johnson was based on an understanding that Brady alerts were

permissible. We viewed Brady alerts as so “laudabl[e]”

(Johnson, supra, 61 Cal.4th at p. 721) that we attached to our

opinion the order “establish[ing] department procedures for

Brady disclosure of materials in employee personnel files” (id.,

at pp. 706-707). Moreover, when construing section 832.7(a), we

reasoned that “permitting prosecutors routine access to

personnel records is not necessary to protect defendants’ due

process rights to obtain potentially exculpatory evidence,”

relying on our later discussion of Brady alerts. (Johnson, at

p. 714; see also ibid. [“as discussed post”].) To now hold that

Johnson’s interpretation of “confidential” forbids Brady alerts

would be to read our opinion as announcing an interpretation

that both: (i) depends on the legality of Brady alerts; and yet

(ii) implies that such alerts are unlawful. Precedent cannot

compel a result if it points toward a self-defeating conclusion.

Nor is the relationship between the term “confidential”

and the investigations exception beyond debate. (Johnson,

supra, 61 Cal.4th at p. 714.) Johnson inferred that because

there is an exception to confidentiality for investigations, the

Pitchess statutes otherwise limit investigators’ (specifically,

prosecutors’) access to “confidential” information. (See id., at

pp. 713-714.) But an exception aimed at investigations need not

imply anything about whether investigators can view

confidential material; for example, the exception could concern

prosecutors’ ability to share information with others when an

investigation is ongoing. Moreover, even if the investigations

exception does imply that prosecutors lack unlimited access to

confidential records during ordinary criminal cases, the

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exception could be understood to set a floor on prosecutorial

access, rather than, as in Johnson, a ceiling. We need not

embrace either of these interpretations to conclude that

Johnson’s approach is not compelled by the statutory text — and

should not be reflexively extended without considering

“defendants’ due process rights.” (Johnson, at p. 714.)

In any event, even if the investigations exception is the

only basis on which prosecutors may directly access underlying

confidential records without a Pitchess motion, it does not follow

that the Department is forbidden to transmit the Brady alerts

at issue in this case. The Pitchess statutes reflect a balance

between “a litigant’s discovery interest” and “an officer’s

confidentiality interest.” (Stiglitz, supra, 60 Cal.4th at p. 639.)

Although the statutes may shield the fact that an officer has

been disciplined from disclosure to the public at large, the mere

fact of discipline, disclosed merely to prosecutors, raises less

significant privacy concerns than the underlying records at

issue in Johnson.

For these reasons, we decline to extend Johnson’s

conclusion regarding “direct access to peace officer personnel

records” to forbid the Brady alerts at issue here. (Johnson,

supra, 61 Cal.4th at p. 713.) The Department may share this

limited information, for the limited purpose of ensuring Brady

compliance, with the limited class of persons (i.e., prosecutors)

with a particularized need to know. (See ante, pt. III.A.)

The question presented in this case concerns whether the Department may share confidential Brady alerts with prosecutors. We do not address whether it would violate confidentiality for a prosecutor to share an alert with the ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS v. SUPERIOR COURT