I. AUTHORITY

This policy is issued under authority granted to the Chief Probation Officer and in accordance with Penal Code Section 290.45, Penal Code Section 1203.05, Penal Code Section 1203.10, Penal Code Section 13202, Welfare and Institutions Code 827 et seq., Welfare and Institutions Code 831and the California Constitution Article 1, Section 28, Marsy’s Law.

II. PURPOSE

This policy sets forth the limitations pursuant to state law, court order and policy on the release of probation records, files, or other criminal record information available to Department employees.

III. APPLICABILITY

This policy shall be applicable to all Department employees.

IV. BACKGROUND

Probation records, files and other criminal record information are confidential and shall only be inspected, reviewed, or released by those persons who have the right and the need to know.  Access and release of any probation record or file shall only be done in compliance with a court order or state/case law.

V. GENERAL POLICY

1. Definitions.

1. Connor Hearings – A hearing to give a probationer a chance to object to the disclosure of “personal” information contained in probation reports, based on a limited level of privacy afforded in Penal Code section 1203.05.  “Connor Hearings” are also required for disclosure of information from the probation file as a whole pursuant to Penal Code section 1203.10.

    

    

2. Marsy’s Law Hearings – A Marsy’s Law hearing requires notice to victims if disclosure of information pertaining to them is contemplated.  A Marsy’s Law hearing is required to address victims’ rights and victim information in a probation report.

    

1. Notification.  All requests for Probation reports and files shall be forwarded to the Custodian of Records upon receipt of the request.

    

2. Release of Adult Probation Reports Pursuant to Court Order.  The Probation Department is authorized to disclose adult probation reports and records pursuant to Superior Court standing order (July 23, 2012) to the following:

 

1. Peace officers of the State of California defined in Penal Code Sections 830.1, 830.2(a) and (d), 830.3(e), and 830.5(a) and (b); and

    

2. Peace officer as equivalently defined by applicable laws of the United States or other states, territories, or possessions of the United States; and

    

3. Judges and other judicial officers of all United States federal courts and all courts of states, territories, or possessions of the United States.

    

4. Disclosure shall be pursuant to the following terms and conditions:

    

5. request for disclosure is received on the requesting agency’s letterhead, specifying that the report or record is needed for conducting criminal, pre- or post-sentence, or pre-trial investigations.

    

6. The Department shall not disclose medical, mental health, or drug and alcohol treatment information, except to the extent the information is contained the charges, probation reports, or terms and conditions of probation.

 

1. The Department shall remove or redact all identifying information concerning any person except the subject of the report or record and/or any public official named therein.

    

1. Access to Adult Probation Reports (Pen. Code, § 1203.05). Section 1203.05 provides unlimited public access to probation reports for a limited time, unlimited access to limited persons (including the probationer) thereafter, and access pursuant to court order for others.

    

1. Specifically, access is allowed as follows:

    

1. By any person, from the date judgment is pronounced or probation is granted or, in the case of a report arising out of a previous arrest, from the date the subsequent accusatory pleading is filed, to and including 60 days from the date judgment is pronounced or probation is granted whichever is earlier.

    

2. By any person, at any time, by order of the court, upon filing a petition therefor by the person.
3. By the public, if the court upon its own motion orders that a report or reports shall be open or that the contents of the report or reports shall be disclosed.

    

4. By any person authorized or required by law to inspect or receive copies of the report, by the district attorney of the county at any time, or by the subject of the report at any time.

    

   2.     For probationers seeking their own probation reports, the reports may be provided if the probationer agrees to accept the reports with victim information redacted. 

    

   3.     Where probation reports are sought by “non-specified” persons pursuant to a petition filed under section 1203.05, subdivision (b), the petitioner must include notice to the probationer who is the subject of the report.

    

1. Access to Adult Probation Files (Pen. Code § 1203.10).  Except for authorized persons and agencies (and as noted below in subsection 3), section 1203.10 requires a court order to obtain access to records other than probation reports, which are governed by Penal Code section 1203.05.  Authorized persons and agencies include the court, persons appointed by or allowed access by order of the court, chiefs of police (including county sheriffs) and other probation departments.

    

1. Under Section 1203.10, probation records are deemed to be court records.

    

2. Probationers seeking access to their own probation file may only do so by court order under section 1203.10, but no Connor hearing is required because the personal information is that of the probationer. In addition, no Marsy’s Law hearing is required IF the probationer agrees to a stipulated order providing for redaction of victim information.

 

1. For persons other than the probationer or those persons or agencies expressly allowed access under 1203.10 who are seeking adult probation reports or files through Public Records Act requests or state or federal subpoenas, such methods of seeking access are subject to objection because the records may only be disclosed via a court order.

    

2. Where a proper petition has been filed by someone other than the probationer or a person or entity expressly entitled to access under section 1203.10, any disclosure made to the court for consideration in camera of probation records should emphasize the Department’s desire, in accordance with law, that the court consider the probationer’s rights under Connor, victims’ rights under Marsy’s Law and confidential material.

 

1. Special Access to probation records is allowable to state licensing boards pursuant to Business and Professions Code section 144.5, which specifically allows certain state licensing boards to obtain certified copies of probation records needed to complete an applicant or licensee investigation. (For a complete list of those boards authorized with access, see Bus. & Prof. Code, § 144.)

1. Access to Juvenile Probation Records and Files (Welf. & Inst., § Code 827). Section 827 provides a list of agencies and personnel who are authorized to inspect juvenile case files.  Absent explicit authorization or court order, juvenile records and files shall remain confidential.

    

1. A petition must be filed on form JV-570 to obtain a court order authorizing the inspection of a juvenile file or copies of records that are confidential.

    

2. Welfare and Institutions Code Section 827(a)(5) also authorizes certain individuals to receive copies of juvenile records without a court order or hearing.

 

1. No records or reports, or any portion thereof, or information relating to the contents of those records or reports shall be made attachments to other documents without prior authorization of the juvenile court, unless connected with and during a criminal investigation or a proceeding to declare a person a ward of the juvenile court.

 

1. Juvenile records may be disclosed to armed forces recruiters pursuant to a currently valid standing order if any specific requirements in the standing order are met.

    

1. Subpoenas. A subpoena for records (subpoena duces tecum) served on an officer or other Department employee shall be forwarded to the Custodian of Records for the Department.  Officers shall retain a copy of the subpoena in the case file.

    

1. Civil subpoenas – Both a civil subpoena for records and a subpoena for the personal appearance of Department officers or employees should include a check for processing of the records or witness fees, although the amounts are different. (See e.g., Evid. Code, 1563 and Gov. Code 68090.) If a check is not included with the subpoena, the officer shall notify the process server that witness fees are being demanded.  Checks for witness fees shall be routed to the Finance Unit for processing.

    

2. Criminal subpoenas – Criminal subpoenas for personal appearances shall not require witness fees.  Personal appearances in criminal cases are part of the normal duties of Department peace officers and collection officers.

    

1. Consultation with Legal Counsel. The Custodian of Records or a Chief Deputy designee, upon receipt of a subpoena for records or Public Records Act request, shall consult with County Counsel regarding disclosure and appropriate response to a subpoena.

    

2. Disclosure of Case File Information to Protect Public Safety. In certain situations, probation officers have a legal duty to disclose information about probationers who pose a credible threat of death or harm to others.

    

   1.   Legal Duty to Warn – If any person under probation supervision threatens to injure or kill an identifiable person or persons and such threat is communicated to a Probation Officer, that officer has a legal duty to warn the victim of the threat.

    

   2.   Pursuant to Penal Code Section 290.45 – Probation officers may provide information to the public about a person required to register as a sex offender, when necessary to ensure public safety based upon information available concerning the specific person’s risk of sexual or violent re-offense.

    

   a.         Any disclosure shall include a statement that the purpose of the release of information is made to allow the public to protect themselves and children from sex offenders.

    

   b.         Information that may be provided includes, but is not limited to, the offender's name, known aliases, gender, race, physical description, photograph, date of birth, address, which shall be verified prior to publication, description and license plate number of the offender's vehicles or vehicles the offender is known to drive, type of victim targeted by the offender, relevant parole or probation conditions, crimes resulting in classification under this section, and date of release from confinement, but excluding information that would identify the victim. Disclosure shall not include any internet identifier(s)except to release internet identifiers to another law enforcement agency for the purpose of investigating a sex-related crime, a kidnapping, human trafficking, or in obedience to a court order.

    

   3.   Special Relationships – Individual(s) who have an established special relationship, e.g., (foster parents who rely on officers for information and guidance in their relationships) with any person under probation supervision may be informed by a probation officer if the probationer poses a known or predictable danger.

    

3. Disclosure of Case File Information Pursuant to a Valid Release of Information. Information may be released to identified parties as part of a fully executed Release of Information Form signed by the probationer when the information to be disclosed is described on the form and not otherwise prohibited by law.

VI. EXCLUSIVITY

This policy will remain in effect until superseded or suspended in writing by the Chief Probation Officer and can be reviewed as needed.