Inspector General Investigations Merit Anti-SLAPP Protection

Blue v. Cal. Ofc. of the Inspector General, No. C083195 (D3 May 10, 2018)

Some prison Guards sued the Office of the Inspector General, a body created to provide oversight over internal affairs investigations and the disciplinary processes of the California Department of Corrections and Rehabilitation.

During an OIG investigation of excessive force issues at High Desert State Prison, the OIG elected to conduct interviews of several former Guards at the facility. Although the Guards requested representation at the interviews under the Public Safety Officers Procedural Bill of Rights, the OIG denied the requests. The Guards and their union sued the OIG for violating the Public Safety Officers Procedural Bill of Rights. The OIG responded with an anti-SLAPP motion, which the trial court denied because it found that the Guards had shown a probability of prevailing on their claims. 

Walking through the two-step anti-SLAPP analysis, the Court of Appeal finds that the first prong—that the lawsuit arises from protected activity—was satisfied. Code of Civil Procedure § 425.16(e)(4) includes “conduct of in furtherance of the . . . exercise of [defendant’s] right of free speech in connection with a public issue or an issue of public interest” within protected activity. Generally, the (e)(4) category protects information gathering activities that are preparatory to other first amendment protected activities, such as reporting the news or engaging in litigation. 

Given that the OIG’s investigation ultimately leads to the creation of a public report, the Court finds that its investigative steps are covered within (e)(4). In reaching its result, the Court reviews the body of settled case law holding that public entities can avail themselves of the protections of the anti-SLAPP statute. It also distinguishes Anderson v. Geist, 236 Cal. App. 4th 79 (2015), which held that service of an arrest warrant doesn’t fall under (e)(4). Unlike Anderson, which dealt with a routine criminal matter, the conditions at High Desert that will be the subject of the OIG report are a matter of public concern. 

But the Court of Appeal disagrees with the trial court on prong two—whether plaintiffs have shown a probability of prevailing. The Public Safety Officers Procedural Bill of Rights only requires representation when an officer is under investigation or subject to potential punitive action. Here, the interviews with the Guards were purely informational. Indeed, the OIG doesn’t even have the authority to bring disciplinary action or cause other punitive consequences. 

Reversed.