California Evidence Code 1040 is the statute that gives a public entity a formal privilege to withhold confidential “official information” during legal proceedings. It operates on two tracks: an absolute privilege when another federal or state law forbids disclosure, and a conditional one where a judge weighs the need for confidentiality against the need for disclosure in the interest of justice.1California Legislative Information. California Evidence Code 1040 – Official Information
What Qualifies as Official Information
The statute defines official information narrowly. It covers information a public employee acquired in confidence while performing job duties, provided that information had not already been opened to the public or officially disclosed before the privilege was claimed.1California Legislative Information. California Evidence Code 1040 – Official Information Both halves count. The information must have been received confidentially, and it must still be confidential when the agency tries to shield it.
In day-to-day terms, this reaches internal law enforcement investigative notes, confidential personnel evaluations, sensitive regulatory findings, and similar records a government employee gathered on the job that have not been publicly released. Once the information has gone out through official channels, the confidentiality the statute protects no longer exists, and neither does the privilege.
The Two Tracks of the Privilege
Courts have described Section 1040 as creating two distinct privileges, one absolute and one conditional.2Justia Law. Shepherd v. Superior Court They work very differently.
Absolute: When Another Law Prohibits Disclosure
Under subdivision (b)(1), the privilege applies automatically whenever a federal or state statute forbids disclosure of the information.1California Legislative Information. California Evidence Code 1040 – Official Information The court has no discretion. If another law bars release, the privilege holds and the inquiry stops there.
Conditional: Public-Interest Balancing
Under subdivision (b)(2), the privilege applies only if the necessity for preserving confidentiality outweighs the necessity for disclosure in the interest of justice.1California Legislative Information. California Evidence Code 1040 – Official Information Most contested privilege fights land here, because a judge has to decide case by case.
The California Supreme Court explained the mechanics in Shepherd v. Superior Court. The trial court must look at each piece of requested information separately and weigh confidentiality against disclosure for that item. If confidentiality wins, that item is privileged. If disclosure wins, the court orders production.2Justia Law. Shepherd v. Superior Court A public entity cannot drop a blanket over an entire file and call all of it privileged. Some documents in one file may be protected while others are not.
Limits That Prevent Tactical Use
The conditional privilege comes with two restrictions that keep the government from using it as a litigation weapon.
Consent Waives the Privilege
If anyone authorized by the public entity has already consented to disclosure of the information in the proceeding, the conditional privilege is gone.4California Legislative Information. California Evidence Code 1040 – Official Information
The Agency’s Own Stake in the Case Does Not Count
When the court runs the balancing test, it cannot consider the public entity’s interest as a party in the outcome of the case.3California Legislative Information. California Evidence Code 1040 – Official Information A city sued for police misconduct cannot invoke the privilege just because releasing internal records would hurt its defense. The privilege exists to protect genuine public interests in confidentiality, not to give a government litigant a strategic edge.
How Judges Review the Claim
Ruling on a conditional privilege claim often requires the judge to actually look at the disputed material. Evidence Code 915 sets up the procedure. As a general matter, a judge cannot force disclosure of allegedly privileged information just to decide whether the privilege applies. For official information claims, the statute carves out an exception: if the court cannot rule without seeing the material, it may require disclosure in a private, closed session.5California Legislative Information. California Evidence Code EVID 915
If the judge ultimately decides the information is privileged, no one present during that in camera review may ever disclose what was seen without the consent of the person holding the privilege.5California Legislative Information. California Evidence Code EVID 915 The procedure exists because the balancing test would be guesswork if the judge never saw the material.
What Happens in a Criminal Case When the Government Wins
In a criminal case, winning the privilege claim carries a price. Under Evidence Code 1042, if the government successfully claims the privilege, the court must make an adverse order or finding of fact against the prosecution on any issue to which the withheld information is relevant.6California Legislative Information. California Evidence Code EVID 1042 The government keeps its secret. The court then treats the issue the secret touched as resolved against the prosecution.
The one exception is where disclosure is forbidden by a federal statute. In that narrow situation, the adverse finding requirement does not apply.6California Legislative Information. California Evidence Code EVID 1042 Outside that carve-out, the structure forces prosecutors to choose: produce the information and use it at trial, or keep it confidential and accept the legal consequence. A criminal defendant does not bear the full cost of government secrecy.
Section 1040 Does Not Cover Informer Identity
Section 1040 protects the content of government information. A separate statute, Evidence Code 1041, protects the identity of people who report suspected legal violations to law enforcement or regulatory agencies.7California Legislative Information. California Evidence Code Article 9 – Official Information and Identity of Informer The two share a parallel structure, with the same statutory-bar and balancing tracks and the same consent and party-interest limits, but they shield different things. An agency might invoke Section 1040 for an investigative report and Section 1041 for the tipster behind it, and criminal courts often address both together.6California Legislative Information. California Evidence Code EVID 1042
Why Section 1040 Matters
Section 1040 is the exclusive route for a California public entity to assert a governmental privilege grounded in the need for secrecy. The California Supreme Court in Shepherd was explicit: the statute is the only path, not one of several.2Justia Law. Shepherd v. Superior Court A government agency cannot fall back on a freestanding common-law privilege to withhold official information. It must meet the requirements of Section 1040.
The statute surfaces most often around law enforcement records, internal government investigations, and regulatory files. When a party in civil or criminal litigation subpoenas government records, the agency has to decide whether to produce them or formally invoke the privilege and submit the claim to judicial review, item by item.