California Appellate Court Rules that Certain Records Involving Peace Officer Misconduct Will Remain Public Regardless of When the Peace Officer Misconduct Occurred
On March 3, 2021, the California Court of Appeal for the Second Appellate District ruled that the amendments made to Section 832.7 of the Penal Code, making peace officer-records dealing with use of force, sustained claims of sexual assault, or sustained claims of dishonesty—public, apply retroactively. (Ventura County Deputy Sherriff’s Association v. County of Ventura (March 3, 2021, B300006)___Cal.App.4th ___[2021 WL 803774].) This ruling is significant in that it reinvigorates California’s goal for increased governmental transparency in law enforcement.
California’s road toward increased governmental transparency began with the implementation of the Public Records Act (PRA) in 1968. The PRA’s goal was to create maximum disclosure of government conduct to the public resulting in higher governmental accountability. However, the real-world application of the PRA instead resulted in a developed tension between the public’s right to access records and privacy rights.
On January 1, 2019, Senate Bill (SB) 1421 became law amending Penal Code Section 832.7. The amendments to Penal Code Section 832.7 effectively allowed for the public release of peace officer records in three categories: (1) use of force, (2) sustained claims of sexual assault, and (3) sustained claims of dishonesty. The statute also provided an exhaustive list of the types of records to be disclosed, including, but not limited to investigative reports, photographs, audio and video recordings, transcripts, documents presented to the district attorney for review, and copies of disciplinary records. In developing this statute, the legislature attempted to strike a balance between the public’s right to access records and the officer’s privacy rights by limiting the access to peace officer records in only the three limited categories.
Codifying SB 1421 within the Penal Code brought a variety of reactions from peace officers, unions, the public, and public employers around California. While the public reacted to the implementation of SB 1421 by filing an increased number of public records requests, peace officers and unions fled to the courts all over California seeking to enjoin a retroactive implementation of Penal Code Section 832.7.
Ventura County Deputy Sheriff’s Association v. County of Ventura (VCDSA)
Ventura County Deputy Sherriff’s Association v. County of Ventura (“VCDSA”) was one of several lawsuits filed in reaction to amended Penal Code Section 832.7. The Ventura County Deputy Sherriff’s Association sued the County of Ventura seeking to enjoin the application of Penal Code Section 832.7 when it came to releasing records involving peace officer conduct and incidents occurring before January 1, 2019; the statute’s effective date.
At the trial court level, the court found in favor of the Ventura County Deputy Sherriff’s Association, granting a preliminary injunction preventing the disclosure of any peace officer records prior to January 1, 2019. The trial court conclusively stated that the amendments to Penal Code Section 832.7 only applied prospectively. The County of Ventura, through the Ventura County Public Defender, appealed the judgment.
On appeal, the Court found the trial court’s decision and application of Penal Code Section 832.7 had been misguided. The Appellate Court focused its analysis on determining whether the amendments to Penal Code Section 832.7 could be applied retroactively. The Court explained, “[T]he critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date. A law is not retroactive merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.” After implementing several methods of statutory interpretation such as analyzing the plain meaning of the statute, the legislative history, the legislative intent, and relevant case law, the Court determined the amendments to Penal Code Section 832.7 would apply retroactively.
The Court relied mainly on Walnut Creek in supporting its reasoning. (Walnut Creek Police Officers’ Assn v. City of Walnut Creek (2019) 33 Cal.App.5th 940 (Walnut Creek)). The Court relied on Walnut Creek not only because it is binding precedent on California Superior Courts as it was decided by the California Court of Appeal for the First Appellate District, but also because it set forth the argument that the new law did not change the legal consequences for peace officer conduct described in pre-2019 records. The court in Walnut Creek explained: “Application of new law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date.” Thus, the Court in VCDSA agreed that the new law changed only the public’s right to access peace officer records, which did not create any new legal consequences for peace officers.
The Court of Appeal ultimately reversed the trial court’s judgment effectively dissolving the previously granted injunction and conclusively holding that Penal Code Section 832.7 applies retroactively.
In ruling on VCDSA, the California Court of Appeal for the Second Appellate District responded to California’s growing pressure for more transparency in law enforcement. The Court’s holding in this case serves as reassurance that the amendments made to Penal Code Section 832.7 will be applied retroactively despite peace officers’ pressure to limit the disclosure of records to only records after the statute’s effective date.
This ruling may also lead to a further increase in PRA requests for law enforcement records. Thus, it is important that public entities establish procedures and standards to minimize their liability when responding to these requests. Establishing and following an effective responsive procedure will allow public entities to identify and produce all responsive records in a timely manner. Public entities should consult legal counsel when deciding on the guidelines to establish these new procedures.