California Legislature Passes Senate Bill 16; Expanding Peace Officer Records Accessible to the Public

09.23.2021

On September 2, 2021, the California Senate approved Senate Bill 16 (“SB 16”). Now on Governor Newsom’s desk, SB 16 reflects further efforts to increase transparency in law enforcement. In 2018, Governor Brown signed into effect legislation that significantly changed the confidential status of peace officer personnel files. SB 16 aims to expand on that change, making additional peace officer records admissible in court and accessible to the public as well as making it mandatory for agencies to review a lateral peace officer’s personnel file prior to employing that officer.

Admissibility of Peace Officer Personnel Files

Evidence Code section 1045 currently allows for relevant records of complaints, investigations of complaints, or discipline imposed related to an event in which the peace officer participated in or perceived to be admitted in court, with some exceptions. The court is required to exclude information related to complaints regarding conduct that occurred more than five years before the event that is the subject of the litigation.

SB 16 would amend Evidence Code section 1045 to remove the five year limit, allowing parties to introduce information related to complaints about conduct at any time, provided the court finds such information relevant to the matter at hand.

Accessibility of Peace Officer Personnel Files

In 2018, Governor Brown signed into effect sweeping changes to public access to peace officer personnel files. SB 16 would expand the categories of records accessible to the public pursuant to a California Public Records Act (“CPRA”) request to include records related to the following:

• Sustained findings involving complaints of unreasonable or excessive force
• Sustained findings that a peace officer failed to intervene against another officer using clearly unreasonable or excessive force
• Sustained findings of conduct involving prejudice or discrimination based on a protected classification (e.g. race, age, sex)
• Sustained findings of unlawful arrest or unlawful search

SB 16 would further expand the scope of accessible records by increasing the required record retention period from five to fifteen years where misconduct is sustained, and require the release of records for peace officers who resigned prior to the close of the investigation into their conduct.

SB 16 would also amend Penal Code section 832.7 to require law enforcement agencies to release records pursuant to a CPRA request within forty-five (45) days of the request, except as authorized by the section. Currently, there is no time limit to provide responsive records.

Law Enforcement Agency Review of Records

SB 16 would amend Penal Code section 832.12 making it mandatory for a law enforcement agency to request and review any record of investigation from a previous employing agency involving the lateral officer prior to employing that peace officer.

Conclusion

SB 16 reflects a further push to increase transparency in law enforcement, buoyed by the events that took place in the summer of 2020. Should SB 16 be signed into effect, law enforcement agencies must ensure their record retention policies and procedure for responding to CPRA requests comport with redefined scope of accessible records. Our office will continue to monitor SB 16 and provide updates on the status of the bill.

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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