STATE DEPARTMENT OF TRANSPORTATION v. HALL (1984)

NATURE OF PROCEEDING:

Petition by Department of Transportation of State of California (Department) to prohibit trial court from compelling production of police traffic reports of other accidents.   Petition granted and writ issued.

BACKGROUND:

Phyllis Hall, the Real Party in Interest (Hall), was the driver of a car involved in a collision which killed five people.   Hall is charged with five counts of second-degree murder.   In her criminal action, by subpoena duces tecum to Department, she sought to compel production of all accident reports at the same location for the years 1980 through 1983.   Department objected to production of any reports other than those concerning the particular accident involving Hall.   The trial court overruled Department's objection.   We issued an alternative writ and asked for responses from the District Attorney and Hall.

DISCUSSION:

Department claims that under Vehicle Code sections 20012 and 20014 ¹ the investigative police reports of accidents, as well as the reports required of persons involved in the accidents other than the one involving defendant Hall, are confidential and therefore privileged against disclosure.   But if the claim of privilege is sustained, then in that event claims defendant Hall, in the criminal action against her, she is, under Evidence Code section 1042, entitled to a finding adverse to the state, “upon any issue to which the privileged information is material.”

As a result, the District Attorney, representing the People in the criminal action against Hall, opposes Department's petition now before us.   The District Attorney suggests that Department's petition is premature.   He suggests that we return the matter to the trial court to permit that court to examine all of the subpoenaed material and to determine thereby whether the information in the reports is admissible in the criminal trial.   On the other hand, Department seems to take the position that the statutory confidentiality protects the reports even from being produced to the trial court pursuant to the subpoena duces tecum.

The governing statutory provisions concerning confidentiality of accident reports is found in the Vehicle Code.   Section 20012 thereof in pertinent part provides:  “All required accident reports, and supplemental reports, shall be without prejudice to the individual so reporting and shall be for the confidential use of the Department of Motor Vehicles and the Department of the California Highway Patrol, except that the Department of the California Highway Patrol or the law enforcement agency to whom the accident was reported shall disclose the entire contents of the reports ․ to any person who may have a proper interest therein․”

Section 20013 reads:  “No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the department shall furnish upon demand of any person who has, or claims to have, made such a report or upon demand of any court, a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or failure to comply with the requirement that such a report be made to the department.”

Section 20014:  “All required accident reports and supplemental reports and all reports made to the Department of the California Highway Patrol by any peace officer, member of the Department of the California Highway Patrol, or other employee of the Department of Motor Vehicles and the Department of the California Highway Patrol, shall be immediately available for the confidential use of any division in the department needing the same, for confidential use of the Department of Transportation, and, with respect to accidents occurring on highways other than state highways, for the confidential use of the local authority having jurisdiction over the highway.”

Section 20012 by its very language says that the personal reports which are required “shall be confidential․”  Although section 20014 with unmistakably unambiguous language makes the investigative police officers' reports also confidential and thus non-discoverable, the trial court did not seem to consider the latter section and made no mention of it.

In ordering Department to produce the reports of other accidents as demanded in the subpoena, the court explained in its reasoning that in its view defendant Hall was a “person who had a proper interest” in the reports of other accidents within the meaning of section 20012.   The court erred.  (See, however, conc. opn. of Bird, C.J. in Davies v. Superior Court (1984) 36 Cal.3d 291, 204 Cal.Rptr. 154, 682 P.2d 349.)

The trial court opined that the statutory prohibition of the use of such reports in any civil or criminal trial (§ 20013) refers to admissibility, and therefore does not expressly forbid discoverability.   In that respect the trial court was correct.   But the court failed to heed the clear language of sections 20012 and 20014, both of which do limit discoverability by expressly stating the reports to be “confidential.”

Section 20012 makes the reports required of persons involved in accidents confidential to the Department and to the California Highway Patrol (CHP) except as to the described person or persons interested in a particular accident.  Section 20014 makes all such reports required by section 20012 “and all reports made to the Department of the California Highway Patrol by any peace officer” confidential and available only to the three public authorities named therein.   That section prevents discovery of those reports by Hall through the use of the particular subpoena duces tecum which she obtained or as ordered by the trial court.

 In concluding that defendant Hall was “a person interested therein”, with reference to all other accidents and the reports thereof, the trial court misread the statutory language.   The language of section 20012 makes it clear that Hall does not thus qualify as a proper recipient of reports of accidents other than hers.   The first paragraph of that section refers to “the accident”, singular.   The word “reports” (plural) thus grammatically refers to the reports concerning “the accident”, applied here referring to that one in which Hall has a “proper interest therein”, i.e., only her own.

Similarly, the description of persons who may receive reports refers to a particular accident by use of the singular “the accident.”   Thus, although the description of the report's contents and the persons who are properly interested therein, is by the statute itself not limited to the statutory description, the accident to which the words “report”, “reports” or “persons” refer is stated singularly.

 The correct grammatical construction of section 20012 compels the conclusion that the reports of other persons' accidents must remain confidential and are not discoverable by a person involved in a separate and unrelated accident.   This is the result intended by the Legislature by its amendment of the section in 1965.  (State of California ex rel. Department of Transportation v. Superior Court [Thomsen] (1980) 102 Cal.App.3d 25, 29, 162 Cal.Rptr. 78;  Edgar v. Superior Court (1978) 84 Cal.App.3d 430, 434, 148 Cal.Rptr. 687.) ²  This intent is to allow persons involved in an accident directly as participants, or their representatives, access to reports of the accident involving them or for which they may incur liability, but to preserve the privacy of persons involved in other accidents.

The concurring opinion of the Chief Justice in the recent decision in Davies v. Superior Court, supra, 36 Cal.3d 291, 204 Cal.Rptr. 154, 682 P.2d 349 well states a contrary argument, i.e., that a person such as Davies there and Hall here at bench are persons with a “proper interest.”   With respectful deference, we do not argue that the rules of construction more favorably support our discussion rather than that set forth in the concurring opinion of the Chief Justice on this particular point.   We observe only that such point of view was not any part of the basis upon which the majority held the information there sought discoverable.   The majority expressly stated:  “This petition for writ of mandate does not seek discovery of the accident reports themselves and we do not decide here the circumstances in which a person who was not a party to a traffic accident may have an interest sufficient to entitle him to review the reports themselves.”  (Id. at p. 296, fn. 4, 204 Cal.Rptr. 154, 682 P.2d 349.)

After the trial court's decision herein, the opinion in People v. Ansbro (1984) 153 Cal.App.3d 273, 200 Cal.Rptr. 210 was published.   At bench the district attorney relies on the language and holding of Ansbro in his suggestion to us that we return this matter to the trial court to permit an in-camera examination by that court.   We reject the suggestion.   The Ansbro decision states:  “The due process requirements of the 5th Amendment to the United States Constitution, and article 1, section 15 of the California Constitution, guarantee a defendant in a criminal prosecution the right to present relevant exculpatory evidence.   In the instant case, a state statute was utilized to prevent the accused from gaining access to evidence of possible benefit to his defense.   The manner in which this was accomplished constitutes a denial of due process.   The trial court should have examined the reports in camera to determine whether the prior accidents were sufficiently similar to defendant's accident to render such evidence relevant to the issue of causation.   The trial court must also segregate the required reports from the accident reports prepared by the police agencies, since the later are not covered by section 20012.   If evidence of the prior accidents is deemed to be relevant and the state claims the privilege of nondisclosure under section 20012, the court may then be required to give an instruction under Evidence Code section 1042, subdivision (a), which provides:  ‘Except where disclosure is forbidden by an act of the Congress of the United States, if a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding, the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material.’ ”  (People v. Ansbro, supra, at pp. 277–278, 200 Cal.Rptr. 210.)

 We have difficulty in accepting this reasoning.   The legislative command of confidentiality in both sections 20012 and 20014 is clear.   A court has no authority to ignore and override that law by permitting itself, or someone it appoints to also take a peek at confidential information by the use of discovery, irrespective of whether such material otherwise might be relevant or admissible as evidence.   Accordingly, there is no need in this case for the trial court to “segregate” the “required reports” (§ 20012) from the “accident reports prepared by the police agencies” as suggested by Ansbro.   While the latter are “not covered by section 20012” as stated in Ansbro, they are indeed covered and are made expressly confidential by another code section, namely code section 20014 as we have observed earlier in this opinion.

Again, the recent case of Davies v. Superior Court, supra, 36 Cal.3d 291, 204 Cal.Rptr. 154, 682 P.2d 349, does not answer this particular point of the confidentiality of the individual police reports made on each particular accident.   Although the preliminary announcement of the decision in Davies wherein the Court states what it “shall conclude” mentions section 20014 as well as section 20012 the opinion does not state that such police reports are not confidential.

The specific issue is not reached in Davies for two reasons.   First, the Court was dealing primarily with and discusses primarily confidentiality vis-a-vis section 20012 and the reports referred to therein.   Secondly, it was unnecessary to the opinion because petitioner therein did not seek specific reports and the decision does not make specific reports of particular accidents whether made by individuals (which are confidential under § 20012) or by police (which are confidential under § 20014) discoverable.   The decision makes only the information and data gathered or “generated” therefrom discoverable.  (Davies v. Superior Court, supra, 36 Cal.3d 302, 204 Cal.Rptr. 154, 682 P.2d 349.)

Referring to the privilege created under section 20012, and which privilege the People in Ansbro claimed, the Ansbro court stated:  “Hence, it is these reports which are privileged under Vehicle Code section 20012.   Reports of accidents made by investigating officers are not so privileged.   [Citations.]  It is important to understand that it is the required reports which are covered by the confidential privileges in sections 20012 and 20013, and not the fact of the accidents themselves.  [Citations.]”  (People v. Ansbro, supra, 153 Cal.App.3d 275, 277, 200 Cal.Rptr. 210.)

If the Ansbro court intended to say that section 20012 does not by its terms make accident reports made by any peace officer confidential, it is a correct statement.   But as a flat statement of law, that statement is, in the context there as well as here, incomplete and not determinative of the issue.   It is another section of the Vehicle Code, namely, section 20014, which governs these reports and makes them confidential.   Hence the statement of Ansbro concerning any privilege as to police officers' reports whether technically accurate or not is not and cannot serve as authority to ignore or do away with the confidentiality of such police reports established by statute.

Hall is not without means to inquire into and determine if the road at the location of her accident is dangerous and defective.  Vehicle Code section 2408 provides that the Department of the California Highway Patrol may pubish statistical information on the number and location of accidents based on tabulating and analyzing all accident reports.

Hall is entitled to discover from Department or CHP only the fact of whether other accidents did occur at or reasonably near the location of her accident and if so the number thereof and the other summarized statistical information compiled therefrom pursuant to Vehicle Code section 2408 and from TASAS ³ and information and data generated from the reports as provided under Davies v. Superior Court, supra.   She is not, however, entitled to copies of the reports of such other accidents nor to any disclosure, directly or indirectly, as to each of their individual or separate contents.  (Davies v. Superior Court, supra, 36 Cal.3d 291, 204 Cal.Rptr. 154, 682 P.2d 349;  Edgar v. Superior Court (1978) 84 Cal.App.3d 430, 434, 148 Cal.Rptr. 687 and State of California ex rel. Department of Transportation v. Superior Court [Thomsen], supra, 102 Cal.App.3d 25, 162 Cal.Rptr. 78.)

Davies v. Superior Court, supra, 36 Cal.3d 291, 204 Cal.Rptr. 154, 682 P.2d 349 supports the decision we here reach.   In Davies, information of other accidents was sought by plaintiff in a civil action in which the state was a defendant.   The charge against the state was for allegedly creating and maintaining a dangerous and defective highway causing the accident which injured plaintiff.   The Supreme Court did not hold that the individual reports of other accidents and which were required under section 20012 were discoverable.   It held only that the information and or data from such reports was not made confidential by either section 20012 or 20014.   The language is instructive.   Initially the Court states:  “We shall conclude that information about other accidents which discloses neither the identity of the reporting party nor identifying material, although generated from accident reports is not made confidential by sections 20012 and 20014.   We shall also conclude that this information is subject to discovery because it is related to the subject matter of a lawsuit arising out of an accident on a public highway and may lead to discovery of admissible evidence.”  (Emphasis added.) ^*

In the Davies case the petitioner had sought information through interrogatories concerning prior accidents at the same location as that involving petitioner asking for dates, type of accidents, parties involved, whether litigation ensued and whether the accidents were recorded in the TASAS computer.   Petitioner in that case also asked for diagrams prepared in conjunction with investigations of accidents occurring at the location and traffic collision reports of accidents occurring subsequent to his.   The state refused to produce either type.

In holding—not that the accident reports themselves were discoverable—but that the data and information gathered therefrom was discoverable, the Court stated:  “TASAS data, diagrams, and other inormation about accidents in the possession of the State are derived from accident reports.   However, the State does not dispute petitioner's claim that this data easily can be made available without indication of the identity of the reporting person or persons and can be disclosed without compromising the confidentiality of identifying information in the reports themselves.   We are satisfied therefore that the legislative purpose in assuring reporting parties that their reports will be confidential does not require extension of that confidentiality to data generated from accident reports.   That data, with identifying information excised, is not made confidential by the express language of sections 20012 and 20014, and the State has not persuaded us that it is necessary to interpret those sections that broadly in order to fulfill the legislative purpose.”  (Davies v. Superior Court, supra, at p. 300, 204 Cal.Rptr. 154, 682 P.2d 349;  emphasis added.)

“As we have demonstrated, the statutes under consideration do not provide that TASAS data and other information generated from accident reports are to be kept confidential, and confidentiality is unnecessary to achieve their purpose.”   (Id. at p. 300, 204 Cal.Rptr. 154, 682 P.2d 349;  emphasis added.)

 It does not appear from the opinion in Davies and we have no information at bench whether TASAS is maintained pursuant to or supplemental to the provisions of section 2408.   The fact remains that the department apparently through the cooperation of CHP does compile such statistical information which may be published, and, hence, is not confidential.   Although not an issue and not mentioned in the Davies opinion, the opinion is in keeping with the undoubted purpose of the statute—to discover what causes some of the accidents and if there is a possibility of a particular defective or dangerous area which contributes to the accident apart from driver conduct.   This seems a legitimate object of discovery.   But the order at bench compels disclosure and discovery much broader than that allowed under section 2408 or the Davies decision.

 Returning to defendant Hall's assertion that Department's non-disclosure of other accident reports entitles her to an instruction under Evidence Code section 1042, we observe here that the People of the State of California in their prosecutorial capacity do not assert any privilege.   Nor is the Department of Transportation asserting a privilege in a criminal proceeding.   At bench the Department is simply obeying the statutory command to keep certain individual records confidential.

When viewed in its entirety this panorama in which the criminal case of People v. Hall is but a part, the State of California occupies two different and distinct roles or capacities.⁴  But even so, in the criminal action against Hall, Department is not “the public entity bringing the proceeding” against whom an adverse finding on any issue shall be made within the meaning of Evidence Code section 1042, subdivision (a).   Accordingly, merely because another non-prosecutorial agency of the state, but not the one bringing the proceeding, must obey the law requiring it to keep records confidential, is no reason to apply the operation of Evidence Code section 1042, subdivision (a) to the agency bringing the action but which does not claim any privilege.

Let a peremptory writ of mandate issue directing the trial court to quash the subpoena duces tecum and vacate its order compelling production of other accident reports and to make and enter appropriate orders consistent with this opinion.

FOOTNOTES

1.   Unless otherwise indicated, all references to sections followed by a number are to the California Vehicle Code.

2.   In Davies, supra, 36 Cal.3d 291, 204 Cal.Rptr. 154, 682 P.2d 349, the Edgar and Thomsen case, as progeny of People ex rel. Dept. of Transportation v. Superior Court [Clark] 60 Cal.App.3d 352, 131 Cal.Rptr. 476, were disapproved along with Clark only to the extent inconsistent with Davies.

3.   TASAS is an acronym for a computerized accident data retrieval system, the Traffic Accident Surveillance Analysis System which stores data on all accidents on the state highway system.

FOOTNOTE.   Opinion page 294, 204 Cal.Rptr. 154, 682 P.2d 349.

4.   In this context of the discussion we note that California is a co-defendant with Hall in the civil lawsuit brought by decedents' heirs.   That fact does not alter nor affect the non-discoverability and confidentiality of the individual reports themselves.

BEACH, Associate Justice.

ROTH, P.J., and COMPTON, J., concur.