California Considers Expanding Public Access to Peace Officer Personnel Records

08.10.2020

The California Legislature is considering Senate Bill 776 and Assembly Bill 1599, two pieces of legislation that build on 2019’s Senate Bill 1421, and significantly expands the public’s access to peace officer personnel files pursuant to the California Public Records Act (“CPRA”).

In 2019, California enacted Senate Bill 1421, which brought sweeping changes to public disclosure of peace officer personnel files. Senate Bill 1421 generally allows disclosure of records in the following categories: (1) officer-involved shootings; (2) certain uses of force; (3) sustained findings of sexual assault involving a member of the public; and (4) sustained findings of certain types of dishonesty. Since 2019, however, loopholes in Senate Bill 1421 have been discovered and there is increasing public pressure for peace officer accountability. These circumstances have led the California legislature to consider Assembly Bill 1599 and Senate Bill 776.  

Senate Bill 1421 (Current Law)

In January 2019, California enacted Senate Bill 1421, which, for the first time, granted the public access to records of officer involved shootings, use of force incidents and sustained findings of sexual assault and dishonesty. Specifically, SB 1421 amended Penal Code Section 832.7 to allow disclosure pursuant to a CPRA request for records in four categories:

1. Records relating to the report, investigation, or findings of any incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
2. Records relating to the report, investigation, or findings of any of incident in which the use of force by a peace officer or custodial officer against a person resulted in death, or great bodily injury.
3. Records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public. “Sexual assault” is defined for purposes of the statute as the “commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under color of authority.  For purposes of this definition, the propositioning for or commission of any sexual act while on duty is considered a sexual assault.”
4. Records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.

After the Legislature amended Penal Code section 832.7, many agencies and organizations litigated the terms of Senate Bill 1421 to clarify details that the legislation never determined. For example, on January 29, 2020, a California Court of Appeal ruled that Senate Bill 1421is retroactive and that all records in an agency’s possession are subject to disclosure, not just those records created after Senate Bill 1421 was signed into law. On May 28, 2020, the California Supreme Court ruled that the public is not required to pay costs associated with redacting protected materials from an electronic record. Assembly Bill 1599 and Senate Bill 776 seek to correct the remaining issues and gaps legislators found in Senate Bill 1421.

Assembly Bill 1599

Assemblyman Jordan Cunningham introduced Assembly Bill 1599 on January 7, 2020. This bill provides that law enforcement agencies shall complete investigations and reach a finding regardless of whether the officer voluntarily resigns before the investigation is completed in the following scenarios:

• If a law enforcement agency initiates an administrative investigation into an allegation of discharge of a firearm at a person by an officer, or an incident in which the use of force by an officer resulted in death or great bodily injury.
• If a law enforcement agency initiates an administrative investigation into an allegation of sexual assault against a member of the public by an officer.
• If a law enforcement agency initiates an administrative investigation into an allegation of dishonesty by an officer in the course of an investigation or prosecution of a crime.

Assembly Bill 1521 passed the Assembly on January 27, 2020 on a 63-2 vote. On July 31, 2020, Assembly Bill 1521 passed the state Senate Committee on Public Safety with a unanimous 6-0 vote, and is now in front of state Senate Committee on Rules.

Senate Bill 776

Senate Bill 776 was introduced to the California Senate by State Senator Nancy Skinner (the original author of SB 1421) on June 29, 2020. If passed, the legislation would significantly expand Senate Bill 1421 and grant the public access to the following records under the CPRA:

• All records involving police use of force (not just incidents that result in death or great bodily injury).
• All records involving police dishonesty related to criminal investigations and on-the-job sexual assault. The bill would also remove the requirement that a complaint relating to sexual assault or dishonesty be sustained following an investigation in order to be subject to disclosure.
• Require disclosure of records relating to an incident involving prejudice or discrimination on the basis of specified protected classes.
• Require disclosure of records relating to an incident in which an officer resigned before an investigation is completed.
• Provide access to sustained findings of all wrongful arrests and wrongful searches.

Aside from expanding the categories of personnel files subject to disclosure that were first established in Senate Bill 1421, Senate Bill 776 would also make significant procedural changes to several other areas, including reporting, hiring, record retention, evidence, disclosure, and penalties.

• Reporting: Requires every person employed as a peace officer to immediately report all uses of force by the officer to the officer’s department or agency.
• Hiring: Before hiring any candidate who has prior law enforcement experience, an agency must inquire about and review the officer’s prior history of complaints, disciplinary hearings and uses of force.
• Retention: Eliminates the five-year rule on the retention of police records, which currently allows law enforcement agencies to destroy records five years after the officer involved has left the agency. The bill, therefore, mandates that agencies retain all records in their possession.
• Evidence: Existing law requires a court, in determining the relevance of evidence, to exclude from trial any information consisting of complaints concerning peace officer conduct that is more than 5 years older than the subject of the litigation. The bill eliminates this evidentiary rule.
• Disclosure: Requires that records relating to an incident where an officer resigned before an investigation is completed is subject to disclosure.
• Disclosure: Prohibits assertion of the attorney-client privilege to limit the disclosure of factual information provided by the public entity to its attorney, factual information discovered by any investigation done by the public entity’s attorney, or billing records related to the work done by the attorney.
• Disclosure: Allows agencies to only charge the public for the direct cost of duplicating records, not the cost of editing and redacting those records.
• Penalties: The bill would impose a $1,000 civil fine per day for each day beyond 30 days that records subject to disclosure are not disclosed. The bill would entitle a member of the public who successfully files suit for the release of records to twice the party’s reasonable costs and attorney’s fees.

Senate Bill 776 passed the committee on public safety on August 6, 2020 on a 6-2 vote. The bill is now under consideration by the Senate Appropriations Committee.

Conclusion:

While Assembly Bill 1599 and Senate Bill 776 have not been signed into law, both pieces of legislation can become law as soon as 2021. Despite the status of the two bills, they should signal to public agencies that the California trend for greater public access to peace officer records continues to grow.

We will continue to monitor these two pieces of legislation and keep our clients apprised of any future developments.

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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