Confidential Records

II. Common Types Of Records Made Confidential By Law

A. Juvenile Records

Background: This topic includes dependency proceedings under Welfare and Institutions Code section 300 et seq. and delinquency proceedings under section 601 et seq. of the same code.

Source of confidentiality: Welfare and Institutions Code section 827 makes juvenile delinquency and dependency records accessible only to the parties and their attorneys and enumerated others, and section 676 makes court hearings confidential, except in specified circumstances. Rule 8.401 of the California Rules of Court makes records and briefs accessible only to the court, parties, appellate projects, and others designated by the court. It also requires additional steps to protect confidentiality, such as the use of first name and last initial, or just initials. (See also Nondisclosure of Identity Policy, Cal. Style Manual (4th ed. 2000) § 5.9 et seq., discussed in part G, below.)

Rationale for confidentiality: Protecting the privacy rights of children and other involved persons and safeguarding the rehabilitative work of the juvenile court. (T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 778; Navajo Express v. Superior Court (1986) 186 Cal.App.3d 981, 985.)

Trial procedures: Juvenile proceedings are not open to the public, and any documents filed may be inspected only on the order of the juvenile court, unless the person inspecting them is one of those enumerated in Welfare and Institutions Code section 827.

Appellate procedures: Transcripts and briefs are sent to all parties, but outside individuals, e.g., the public, may not access them. (Rules 8.401(b), 8.409(e).) Filed documents must use first name and last initial or just initials. Court opinions, both published and unpublished, are public; care is exercised not to include information that may disclose the identity of the individuals involved.

• Practice note 1 – care in writing briefs: Even though juvenile briefs are not open to public inspection under rule 8.401, attorneys should observe proper confidentiality constraints in preparing them.
• Nondisclosure of Identity Policy: Juvenile appeals are subject to the Nondisclosure of Identity Policy discussed in part G , below. (Cal. Style Manual (4th ed. 2000) § 5.10.) Although that policy technically applies to opinions, rule 8.401(a)(2) codifies it for briefs by requiring “all filed documents” to use only first name and last initial or just initials.
• Loophole for potential amicus curiae: In spite of the theoretical non-public policy for juvenile briefs, rule 8.401(b)(3) has a paradoxical and potentially dangerous loophole. It allows “any person or entity that is considering filing an amicus curiae brief” to inspect filed documents that conform to the requirements for confidentiality (e.g., first name, last initial). Since anyone can claim to be “considering” an amicus curiae brief, that rule potentially can open a juvenile file to public inspection, including a member of the press following a particular case or someone surreptitiously trying to locate a child. Briefs should be written with that possibility in mind.
• Details in briefs: For these reasons counsel should use critical judgment when selecting details to include their briefs. Birth dates of minors, last names of parents, first names of siblings when the grouping is distinctive, addresses, and other such details should be avoided. In this day of extensive access to personal information, even seemingly innocuous details can be used to identify and locate individuals with relative ease and rapidity.
• Proof of service: Protection of identity inside a brief can be lost if the proof of service gives full names or addresses. Counsel can use the first name-last initial or initials and “address of record,” instead of actual address.
• Minor tried as adult: The nondisclosure policy does not apply when a minor was tried as an adult in criminal court. (Cal. Style Manual (4th ed. 2000) § 5.10.) It is followed, however, when a minor successfully seeks relief in a collateral proceeding, such as a pretrial writ challenging an order to try the minor as an adult. (Ibid.)
• Practice note 2 – disposition of records: Counsel should be very careful in disposing of confidential records at the conclusion of the case. Sending it to the minor in a dependency case, for example, may be a de facto disclosure to the caretaker, in violation of law. Likewise, sending it to an incarcerated client effectively subjects it to disclosure to fellow inmates, since privacy is virtually impossible to guarantee in a custodial setting. Counsel should discuss alternative methods of disposition with the client or trial counsel. ADI may also be able to offer some guidance.
• Practice note 3 – sealed and confidential records: Although juvenile records are already confidential under section 827 and related rules, sometimes a court may seal part of a record as to a party or other person statutorily entitled to access to the juvenile file generally. In that case, the procedures are governed by rules 8.45-8.47.

B. Probation and Diagnostic Reports

Background: Under Penal Code section 1203, a probation report is prepared after conviction to assist the court in sentencing. Under Penal Code section 1203.03, the court may refer a defendant to the Department of Corrections and Rehabilitation for a diagnostic report before sentencing.

Source of confidentiality: Penal Code section 1203.05: A probation report is public for 60 days after sentencing and then may be examined only by the defendant, district attorney, or others authorized by law. Penal Code section 1203.03, subdivision (b): A diagnostic report goes to the court, defendant, probation officer, and prosecutor; the information in the report may not be disclosed to others without the defendant’s consent.

Rationale for confidentiality: Protecting the defendant’s privacy and potentially that of his family, witnesses, etc. (People v. Connor (2004) 115 Cal.App.4th 669.)

Trial procedures: The court orders preparation of a probation or diagnostic report. The confidentiality of the report is governed by Penal Code section 1203.05 or 1203.03.

Appellate procedures: These reports are part of the normal record. (Rule 8.320(b)(13)(D) & (E).) Under rule 8.45(c) and (d) the reports are delivered in a confidential envelope to the court, Attorney General, and the defendant who was the subject of the report. Under Penal Code section 1203.05, the public and other parties to the proceedings, such as co-defendants, do not have access (at least after 60 days from sentencing). (Although rule 8.45(d)(5) does not deliver a probation report to co-defendants, a co-defendant would have access on request as a member of the public until the 60 days have passed.)

• Practice note – briefs with sensitive confidential material: Privacy does not apply to information in a confidential report that is otherwise public in some other part of the record. But, if discussion of a matter in a brief may require disclosing some non-public, sensitive information contained in a probation or diagnostic report, the attorney should consider filing a redacted public brief with a motion to seal the unredacted version. (See SEALED RECORDS, below; rule 8.46; rule 8.47(c).)

C. Marsden Hearings and Analogous Situations

Background: People v. Marsden (1970) 2 Cal.3d 118 prescribes procedures when a defendant complains about appointed trial counsel and asks the court to appoint another attorney.

Source of confidentiality: The general confidentiality of a Marsden hearing is grounded in case law. (E.g., People v. Dennis (1986) 177 Cal.App.3d 863, 871; cf. People v. Madrid (1985) 168 Cal.App.3d 14, 19.)

Rationale for confidentiality: Preventing premature disclosure of defense strategy and, potentially, reduction of the prosecution’s burden of proof. (People v. Barnett (1998) 17 Cal.4th 1044, 1094; People v. Dennis, supra, 177 Cal.App.3d 863, 871.) Often this interest has diminished or disappeared by the end of the trial because trial strategy has been revealed. (That judgment must be made on a case-to-case basis, although the confidentiality of Marsden records appears to be observed close to universally now.)

Trial procedures: The court orders an in camera hearing to explore the defendant’s complaints about trial counsel, with the defendant and his or her counsel present. The prosecutor and any uninvolved co-defendants may be excluded. Any written filings may be under seal.

Appellate procedures – rules 8.45(d)(2) and 8.47(b):

• A Marsden reporter’s transcript is delivered to the court and counsel for the involved defendant only under rule 8.45(d)(2).
• If a Marsden issue is raised the respondent may request a copy of the transcripts under (rule 8.47(b)(2)(B).)
• If necessary, the defendant may oppose the request under rule 8.47(b)(2)(C) on the ground the transcipt contains irrelevant confidential material, citing the pages and line numbers where that material is found.
• If the defendant files no opposition, the clerk must send the record to the respondent. (Rule 8.47(b)(D).)

Some other situations using Marsden-type in camera hearing excluding prosecution

• Hearing on forfeiture of the right to counsel (King v. Superior Court (2003) 107 Cal.App.4th 929, 947-948);
• Pretrial hearing on a motion to dismiss for denial of a speedy trial (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937);
• Hearing on why the defense needed to know the identity of a confidential informant (People v. Galante (1983) 143 Cal.App.3d 709);
• Phases of a hearing under Faretta v. California (1975) 422 U.S. 806 (right to self-representation at trial) dealing with defense strategy (People v. Lynch (2010) 50 Cal.4th 693, 715-719, abrogated on other grounds by People v. McKinnon (2011) 52 Cal.4th 610, 636-643)
• Pretrial habeas corpus petition alleging ineffective assistance of counsel (People v. Barnett (1998) 17 Cal.4th 1044, 1088);
• Proceedings to determine competence to stand trial under Penal Code section 1367 et seq., when court has reason to believe trial counsel’s input would violate attorney-client confidentiality if public (rule 4.130(b)(2)).

Practice note 1 – precautions in letting record be sent to Attorney General: Generally, raising the issue in a public unredacted brief is deemed a waiver of confidentiality. Since in many cases the need for confidentiality no longer applies by the time the case is on appeal, because trial strategy has been revealed, there may be no practical need to withhold parts of the confidential record from the Attorney General. Consultation with trial counsel on this matter is advisable. If the record does include potentially sensitive or prejudicial matters not revealed publicly at trial, care must be taken – e.g.:

• Irrelevant confidential materials in record: If the confidential matters are not relevant to the issue raised on appeal, counsel should invoke the procedures outlined in rule 8.47(b)(2)(C) (opposition to Attorney General request for the confidential record, detailing parts that should not be released).
• Relevant confidential materials: If the sensitive or prejudicial matters not revealed at trial are relevant to an appellate issue and may not be withheld from the Attorney General, counsel can file an uredacted brief with a motion to seal, and a public redacted brief. (Rule 8.47(b)(3); part III, below, SEALED RECORDS.) If necessary, counsel can seek a protective order prohibiting the Attorney General from turning the information over to the trial prosecuting attorney or otherwise disclosing it outside the appeal. (See James G. v. Superior Court (2000) 80 Cal.App.4th 275, 277, fn. 1 and 284.) Counsel should scrutinize the respondent’s filings and the opinion to ensure confidentiality is observed.

D. Defense Request for Expert Funds

Background: Capital cases – Under Penal Code section 987.9, an indigent capital defendant may apply to the superior court for state funds for experts, investigators, etc., as needed to prepare a defense. (See People v. Guerra (2006) 37 Cal.4th 1067, 1085, overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) Non-capital cases – The county has a constitutional obligation to provide such ancillary services as may be required to ensure the right to the effective assistance of counsel. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 318-320; see also Ake v. Oklahoma (1985) 470 U.S. 68; see Pen. Code, § 987; Evid. Code, §§ 730, 731.)

Source of confidentiality: Capital cases – Penal Code section 987.9 prescribes that the hearing on the motion for defense services and even the fact a motion has been made are confidential. Non-capital cases – Case law establishes the confidentiality of proceedings on the motion. (Corenevsky v. Superior Court, supra, 36 Cal.3d 307, 320, fn. 12; see also King v. Superior Court, supra, 107 Cal.App.4th 929, 947.)

Rationale for confidentiality: Similar to Marsden confidentiality: protecting against disclosure of defense strategy. (People v. Berryman (1993) 6 Cal.4th 1048, 1071, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 822-823.)

Trial procedures: The court orders an in camera hearing to examine the defendant’s request for funds, with the defendant and counsel present. The prosecutor and any uninvolved co-defendants may be excluded. Any written filings may be under seal.

Appellate procedures (non-capital cases): If the proceedings on a request for a defense expert are not part of the record, the defendant must file an augment request under rules 8.340 and 8.155. The above procedures for Marsden cases (rule 8.47(b)(2)) apply: The confidential record is delivered to the appellate court and the defendant involved in the motion. An index is provided to the parties. Once the issue is raised, the Attorney General may request the transcript, and the defendant may oppose release of irrelevant confidential materials. (See People v. Superior Court (Berryman) (2000) 83 Cal.App.4th 308; cf. Pen. Code, § 987.9, subd. (d).) The defendant may also seek protective orders for the use of confidential matters released to the respondent and file unredacted briefs referring to confidential matters with a motion to seal, along with a redacted brief. (Rule 8.47(b)(3).)

E. Pitchess Motion

Background: Pitchess v. Superior Court (1974) 11 Cal.3d 531: The defendant may make a motion for disclosure of the record of complaints of misconduct made against an officer, when potentially relevant to the defense. (Evid. Code, §§ 1043-1047; Pen. Code, §§ 832.5, 832.7, 832.8.)

Source of confidentiality: Penal Code section 832.7, subdivision (a) makes peace officer personnel files confidential except through discovery procedures under Evidence Code sections 1043 and 1046.

Rationale for confidentiality: Protecting the rights of the officer against “an unwarranted invasion of personal privacy” (Pen. Code, § 832.8, subd. (a)(6)) and protecting the officer and agency from “unnecessary annoyance, embarrassment or oppression” (Evid. Code, § 1045, subd. (d)). (See People v. Mooc (2001) 26 Cal.4th 1216, 1227.)

Trial procedures: The custodian of the records must deliver to the trial court any records in the officer’s file potentially responsive to the defense’s discovery request. (People v. Mooc, supra, 26 Cal.4th 1216, 1228-1230.) The trial court must examine the records outside the presence of either party (Evid. Code, § 1045, subd. (b)) and make a record of the documents it examines (Mooc, at pp. 1228-1230).

Appellate procedures: The record of the Pitchess proceedings below is not automatically part of the normal record and must be requested by augmentation under rules 8.340 and 8.155. (See People v. Rodriguez (2011) 193 Cal.App.4th 360, 366.) The record is not accessible to either party. Rather, the defendant requests the Court of Appeal to examine the record and make a ruling without receiving briefing. (People v. Hughes (2002) 27 Cal.4th 287, 330; see People v. Price (1991) 1 Cal.4th 324, 493 [when appeal challenges trial court order withholding evidence as privileged or non-discoverable, court will fill gap caused by party’s lack of access to record by reviewing it objectively].)

F. Motions Regarding Confidential Informant

Background: Evidence Code sections 1041 and 1042 prescribe the procedures and standards applicable when a confidential informant is a potential witness on the issue of guilt, or provides information as the basis for a search warrant or a warrantless arrest or search. (People v. Hobbs (1994) 7 Cal.4th 948.)

Source of confidentiality: Evidence Code section 1042, subdivisions (b)-(d); People v. Hobbs, supra, 7 Cal.4th 948, 973-974.

Rationale for confidentiality: Protecting the informant’s personal security and anonymity – and thereby law enforcement’s, and derivatively the public’s, interest in retaining sources of information. (Evid. Code, § 1041, subd. (a)(2); People v. Hobbs, supra, 7 Cal.4th 948, 958; see also McCray v. Illinois (1967) 386 U.S. 300, 308-309.)

Trial procedures: If the informant is potentially a material witness to guilt or innocence, Evidence Code section 1042, subdivision (d) prescribes an in camera hearing outside the presence of the defense, with a record to be sealed and examined only by a court. If the informant is relevant to the validity of a warrant (Evid. Code, § 1042, subd. (b)), People v. Hobbs, supra, 7 Cal.4th 948, 973-974, prescribes an in camera hearing on request. If the informant is relevant to the validity of a warrantless search or arrest, Evidence Code section 1042, subdivision (c) calls for a hearing in open court on the question whether the informant is reliable. (Cooper v. Superior Court (1981) 118 Cal.App.3d 506-509.)

Appellate procedures: The record of the hearing below is not automatically part of normal record, but must be requested under rules 8.340 and 8.155. The record is sent to the court only. (Rule 8.45(d)(4).) It will not be accessible to the defendant on appeal, although the People may examine it; rather, the defendant requests the Court of Appeal to review the record.

G. Limited Confidentiality of Certain Information

Background: In general, court records are deemed to be public unless specifically made confidential by court order or by law. (Rules 2.550(c) [“Unless confidentiality is required by law, court records are presumed to be open”], 10.500 [public access to court administrative records]; Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 111-112.) Nevertheless, the law and court practices do provide limited confidentiality protection in court records for certain information and certain persons. These matters should be safeguarded in preparing documents and handling records.

• Practice note – proof of service: Protection of identity inside a brief can be lost if the proof of service gives full names or addresses. Counsel can use the first name-last initial or initials and “address of record,” instead of actual address on the proof of service.
• Practice note – police reports: Police reports may be used as the factual basis for a plea or otherwise be part of the record. They are not written with protection of privacy in mind, and counsel should redact personal information unrelated to the case before forwarding them to clients.

Private information: Rule 1.201 prohibits use of personal identifiers such as Social Security and financial account numbers. A party may submit a confidential reference list explaining the reference or abbreviation that corresponds with the complete identifier. (Cal. Forms, Misc., MC-120.)

Nondisclosure of Identity Policy: The California Supreme Court and the California Style Manual have set forth a Nondisclosure of Identity Policy, which keeps from disclosure identifying information of protected persons. (Cal. Style Manual (4th ed. 2000) § 5.9 et seq.; Rule 8.90.) It covers:

• Protected persons include living victims of sex crimes, minors innocently involved in court proceedings, LPS conservatees, trial jurors and sworn alternate jurors, and some victims and witnesses in criminal matters. Homicide victims are not included, nor are adults bringing an action for wrongdoing committed during the plaintiff’s minority, nor minors tried as an adult in criminal court.
• Identifying information includes last names, middle names or middle initials, street addresses, full birth dates, parent’s last name if same as minor’s, etc.

The policy provides:

• Jurors: Code of Civil Procedure sections 206 and 237 and rule 8.332 protect identifying information of trial jurors and sworn alternates in criminal cases. The rationale is protecting jurors from harassment, threats, tampering, or reprisals or an undue invasion of personal privacy – thereby protecting the jury system itself. (Townsel v. Superior Court (2009) 20 Cal.4th 1084, 1093, 1097.)
• Practice note – sending records to clients: Counsel should take care that transcripts comply with rule 8.332 before sending them to the client. If the references to juror-identifying information are few, counsel may physically redact them himself or herself. If they are more widespread, counsel should at an early stage of the case notify the Court of Appeal and ask for an order to the superior court to correct the record.
• Threatened victims or witnesses: Penal Code section 1054.7 provides for protective nondisclosure to be ordered by the court on a showing of threats to the safety of a victim or witness, possible loss of evidence, compromising of an investigation, etc.
• Practice note – sending records to clients: Counsel should be careful to redact any information that might violate a court protective order before sending the transcripts to the client.

LPS Conservatees: Welfare and Institutions Code section 5325.1 protects an LPS conservatee’s right to dignity, privacy, and care. It recognizes that such a person is a patient, not in the legal system by his or her own fault, and safeguards the individual’s personal rights. (In re Qawi (2004) 32 Cal.4th 1, 17.)

• Practice note – confidentiality in briefs: Counsel in an conservatorship appeal should use the first name and last initial or just initials policy and take care to avoid details that might identify the client. LPS briefs are public, but are subject to the Nondisclosure of Identity Policy set out in the California Style Manual.(Cal. Style Manual (4th ed. 2000) § 5:13.)

Sterilization conservatees: Rule 8.482(g), on appeals from a judgment establishing a conservatorship to consent to sterilization (Prob. Code, § 1950 et seq.; see Conservatorship of Valerie N. (1985) 40 Cal.3d 143; In re Conservatorship of Angela D. (1999) 70 Cal.App.4th 1410), provides that written reports of physicians and any other matter marked confidential by the court may be inspected only by court personnel, parties, the district appellate project, and persons designated by the court.

• Practice note – protecting confidentiality in briefs and records: These records tend to be highly sensitive, and counsel should make every effort to safeguard the client’s privacy by use of initials and avoidance of identifying information. If necessary, counsel may ask that parts of the record and filings be sealed. On the proof of service, counsel can use the first name-last initial or initials and “address of record,” instead of actual address.