California Court of Appeal Weighs In on Application of SB 1421
On January 29, 2020, the California Court of Appeal, First District, issued its decision in Xavier Becerra v. Superior Court of the City and County of San Francisco, finding that the 2019 amendment to Penal Code section 832.7 (also known as Senate Bill 1421) applies to all documents in possession of an agency, including documents created by other agencies and documents pertaining to employees of other agencies. This broad interpretation of Penal Code section 832.7 emphasizes the trend in California for greater public access to peace officer records.
In January of 2019, the Legislature amended Penal Code section 832.7 to allow the public access to incidents involving shootings by an officer that resulted in death or great bodily injury, as well as sustained findings of sexual assault or dishonesty by an officer. Pursuant to the new law, the First Amendment Coalition (“Coalition”) requested from the California Department of Justice (“Department”) all records within its possession subject to disclosure under the newly amended section 832.7. The Department agreed to release any non-exempt records for peace officers employed by the Department. However, the Department notified the Coalition that it would not release any records that it had obtained from other state and local law enforcement agencies as it was not the “agency that ‘maintains’ those documents” nor was it the employer of the officers who were named in the responsive documents.
The Court of Appeal disagreed with the Department’s decision to withhold the documents and ordered them to be produced. The Court examined the language of both section 832.7 and the California Public Records Act (“CPRA”) and determined that members of the public were entitled to inspect “any” record “retained by” or in the possession of a state agency, even if the record was not “prepared, owned, [or] used” by that particular agency. The Court also examined the legislative history of SB 1421 and found that the intent behind the amendment to Penal Code section 832.7 was for greater transparency. The Court noted that the bill’s author had urged the bill’s passage because it “benefits law enforcement and the communities they serve by helping to build trust. Giving the public, journalists, and elected officials access to information about actions by law enforcement will promote better policies and procedures that protect everyone. We want to make sure that good officers and the public have the information they need to address and prevent abuses and to weed out the bad actors. SB 1421 will help identify and prevent unjustified use of race, make officer misconduct an ever rare occurrence, and build trust in law enforcement.” (Assem. Com. On Public Safety, Rep. on Sen. Bill 1421 (2017-2018 Reg. Sess.) as amended June 19, 2018, p. 4.) The Court determined that based on the intent of SB 1421 for greater transparency, the Department was required to disclose the requested documents.
On the other hand, the Court of Appeal maintained that the new amendments to Penal Code section 832.7 cannot be divorced from the CPRA. Therefore, agencies can withhold documents under the CPRA’s catch-all exemption if they can adequately demonstrate that nondisclosure clearly outweighs the need for public disclosure. Here, the Department argued that it should not be forced to produce the requested documents according to the catch-all exemption because one matter included over “109,000 records” which would have required “a minimum of 3,600 attorney hours to review.” The second matter, the Department pointed out, included over “26,000” records, which would have required over “approximately 860 attorney hours to review.” The Court determined this did not adequately show a “clear overbalance on the side of confidentiality.” The Court explained that the request from the Coalition involved six different matters, but that the Department only provided factual detail to showcase their burden for two of the six matters. Additionally, the Court noted that costs associated with reviewing new CPRA requests in light of the amendments to Penal Code section 832.7 carry limited persuasion as the Legislature chose to enact SB 1421 despite its awareness that compliance would increase expenses. Therefore, the Court determined that the threshold required to apply the CPRA catch-all exemption was not satisfied in this case.
Based on the Court’s ruling in Xavier Becerra, agencies should be cautious about maintaining records that may be subject to disclosure under SB 1421 if they did not create the record, and/or they do not employ the officer. If an agency does maintain such records, those records may be subject to disclosure under SB 1421. On the other hand, if your agency receives a CPRA request, be sure to evaluate whether nondisclosure is an option under the CPRA’s catch-all exemption and its pertinent standards.
This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.
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