Governor Brown Signs Senate Bill 1421 and Assembly Bill 748; Making Certain Peace Officer Records Subject to Disclosure Under the California Public Records Act
On September 30, 2018, Governor Edmund Gerald Brown Jr. signed Senate Bill 1421 and Assembly Bill 748. These two pieces of legislation reflect a significant change in the confidential status of peace officer personnel files. Previously, peace officer personnel files were confidential pursuant to California Penal Code Section 832.7, and only discoverable through the “Pitchess” process set forth in Evidence Code Sections 1043 and 1045. Pursuant to this newly enacted law, the public will now have access under the California Public Records Act (“CPRA”) to records of officer involved shootings, use of force incidents and sustained findings of sexual assault and dishonesty.
Senate Bill 1421 – Effective January 1, 2019
Penal Code Sections 832.7 and 832.8 currently make all peace officer personnel files confidential, and only allow access to these files in criminal, civil and administrative proceedings pursuant to Evidence Code Section 1043 and 1045 through a “Pitchess” motion. Effective January 1, 2019, SB 1421 amends Penal Code Section 832.7 to allow disclosure pursuant to a CPRA request for records in four categories:
- 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.
- 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.
- 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.”
- 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.
When an investigation or incident involves multiple officers, the information set forth in categories 3 and 4 above is only released if it involves a sustained finding against that officer. However, factual information about other officers involved or statements they made may be released even without a sustained finding against that officer if such information was relevant to the sustained finding against the other officer. Thus, officers who are witnesses to incidents could have their statements released if the investigation against the subject officer resulted in a sustained finding against the officer under categories 3 and/or 4 above.
Recognizing that not all information regarding a peace officer should be disclosed to the general public due to officer safety concerns, the legislature set forth specific guidelines as to what types of information shall be redacted by the agency. There are four specific categories of records that “shall” be redacted.
- All personal data or information, such as the home address, telephone number, and identity of family members.
- All information to preserve the anonymity of complainants and witnesses.
- All confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about misconduct and serious use of force by peace officers and custodial officers.
- Information when there is a specific, articulate, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the officer or another person.
Due to the mandatory redacting language of Penal Code Section 832.7, agencies should conduct a careful review of all records they intend to release, and redact accordingly.
Disclosure May Be Delayed While a Criminal or Disciplinary Case is Pending For Use of Force or Officer Involved Shooting Cases
If there is a pending criminal or disciplinary case pending against an officer for use of force resulting in great bodily injury or death or for the discharge of a firearm at a person, the agency may delay disclosure of otherwise discoverable information under the following four categories:
- During an active criminal investigation, disclosure may be delayed for up to 60 days from the date of the use of force occurred or until the district attorney determines whether to file charges, whichever occurs sooner. If the agency delays disclosure it must provide the specific basis for the delay in writing.
- Disclosure can be delayed beyond the 60 days and up to 18 months if disclosure can reasonably be expected to interfere with a criminal proceeding, and if the agency provides, in writing, at 180-day intervals, the specific reason why disclosure would continue to interfere with the criminal proceeding. These same rules apply when the criminal proceeding is against someone other than the officer who used the force; except that the agency must show clear and convincing evidence that the interest in preventing prejudice to the active criminal case outweighs the public interest in prompt disclosure of records about the use of force.
- If criminal charges are filed, the agency may delay disclosure of records or information until a verdict on those charges is returned, or a guilty plea is entered.
- During an administrative investigation into an officer involved shooting or use of force that resulted in death or great bodily injury, an agency may delay disclosure until the agency determines whether the officer violated law or policy, up to 180 days after the incident of misconduct or any criminal investigation, whichever is later.
SB 1421 Also Amends Penal Code Section 832.8
In addition to amending 832.7 of the Penal Code, SB 1421 also sets forth new language in 832.8 of the Penal Code defining what “sustained” and “unfounded” means with respect to investigations. The definitions are:
‘Sustained’ means a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicably, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code, that the actions of the peace officer or custodial officer were found to violate law or department policy.
‘Unfounded’ means that an investigation clearly establishes that the allegation is not true.
Due to the fact that “sustained” is defined as a final determination following an investigation and opportunity for appeal, agencies must be cautious not to release any information set forth in categories 3 & 4 above if an officer has filed an administrative appeal of the findings. In such cases, the agency should not release any information until a final decision has been rendered after the post-disciplinary hearing.
Assembly Bill 748 – Effective July 1, 2019
In addition to implementing Senate Bill 1421, Governor Brown also signed Assembly Bill 748, which is effective July 1, 2019. Currently, the CPRA exempts from disclosure records of investigations by state or local agencies. AB 748 amends the CPRA to mandate disclosure of “video or audio recording that relates to a critical incident.” Critical incident is defined as:
- An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
- An incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury.
AB 748 does not provide a definition of “great bodily injury.” Thus, it will be up to each agency to determine when a use of force incident has resulted in “great bodily injury.” Further, AB 748 sets forth that an agency may “provide greater public access to video or audio recordings than the minimum standards set in this paragraph.” Accordingly, an agency can lawfully release video or audio recordings not required to be disclosed under the CPRA, and still comply with the CPRA. Similarly, agencies may disclose video or audio recordings sooner than the time periods set forth under AB 748 and still comply with the CPRA.
Redaction or Withholding of the Record Based on Privacy
AB 748 allows an agency to withhold the release of a video, without limitation as to time, if it can demonstrate that the public interest in “withholding a video or audio recording clearly outweighs the public interest in disclosure because the release of the recording would, based on the facts and circumstances depicted in the recording, violate the reasonable expectation of privacy of a subject depicted in the recording.” In such a case, the agency must provide the requestor of the record with the specific basis for the expectation of privacy and the public interest served by withholding. An agency may also use redaction technology to obscure those portions of the recording that protect an individual’s privacy.
Agency May Delay Disclosure While a Criminal or Disciplinary Case is Pending
During an active criminal or administrative investigation, an agency may only withhold the disclosure of any recording relating to an officer involved shooting or a use of force that resulted in great bodily injury or death for based on the need of the agency. There are three different time frames for an agency to consider.
- During an active criminal or administrative investigation, disclosure my not be delayed for no longer than 45 calendar days after the agency knew or should have known of the incident, if based on the facts depicted in the recording, disclosure would substantially interfere with the investigation. An agency delaying disclosure pursuant to this section shall provide in writing the requestor with the specific basis for the determination that disclosure would substantially interfere with the investigation and the estimate date for disclosure.
- After 45 calendar days after the agency knew or should have known of the incident, and up to one year from that date, the agency may continue to delay disclosure if disclosure would substantially interfere with the investigation.
- After one year after the agency knew or should have known of the incident, an agency may continue to delay disclosure if the agency demonstrates by clear and convincing evidence that disclosure would substantially interfere with the investigation. The agency must notify the requestor in writing the specific basis for the agency’s determination every 30 days until the specific basis for withholding is resolved.
According to Senator Nancy Skinner (D- Berkeley), author of SB 1421, the bills “open up some transparency to help rebuild the trust between law enforcement and communities.” However, while this may be the intent of the bills, for agencies employing peace officers and custodial officers, the new law will require them to navigate a landslide of requests starting January 1, 2019. Agencies should consult with legal counsel regarding how to bring their current policies and procedures up to date with the new amendments, and how to respond to the numerous requests they are sure to receive.
Our firm will be providing breakfast briefings to assist agencies with understanding the changes, and how to prepare for the onslaught of CPRA requests agencies will soon be faced with. We are currently offering breakfast briefings on November 13, 2018 in Ontario, November 14, 2018 in Cerritos and November 15, 2018 in Orange County. Announcements will be sent out shortly or you may contact Jane Novotny at AALRR to register.