Issue 115 - September 2021
Bill Expanding Public Access to Police Misconduct Records Approved by California SenateBy Christine N. Wood, Director of PRA Services and E-Discovery Counsel, and Nikki Moore, PRA Services and E-Discovery Attorney, Best Best & Krieger LLP
Originally published on September 7, 2021. Reprinted with permission from Best Best & Krieger LLP.
Gov. Gavin Newsom Must Sign or Veto by October 10
The California Legislature approved Sen. Nancy Skinner’s Senate Bill 16 on September 2, putting the question of whether to require disclosure of more police records before Gov. Gavin Newsom. He must sign or veto the bill by October 10.
SB 16, which builds on the landmark SB 1421, greatly expands the types of police records that must be disclosed, adding four categories to the four existing disclosure mandates. SB 16 would require disclosure when there is:
- a sustained finding involving a complaint that alleges unreasonable or excessive force;
- a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive;
- a sustained finding made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings and gestures involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status; or
- a sustained finding made by any law enforcement agency or oversight agency that the peace officer made an unlawful arrest or conducted an unlawful search.
The bill delays implementation for all four new categories, giving agencies until January 2023 before they must produce these newly accessible records.
These additional notable provisions of the bill, discussed below, will go into effect Jan. 1, 2022 if the measure is signed:
- Records with no sustained finding of misconduct must be retained for at least 5 years and records related to sustained misconduct must be retained for a minimum of 15 years.
- Records relating to an incomplete investigation must be released if an officer resigned during the investigation.
- Whistleblowers and victims are added to the list of persons whose identities are required to remain confidential.
- Records shall be provided at the “earliest possible time” and “no later than 45 days from the date of a request for their disclosure” unless the law specifically permits a longer response time.
- An agency may only charge the direct cost of duplication for the production of these records, in line with the Public Records Act, and not for searching or redacting records.
- Attorney-client privilege does not prohibit the disclosure of factual information provided by the public entity to its attorney or factual information discovered in any investigation conducted by, or on behalf of, the public entity’s attorney; nor does it prohibit disclosure of billing records related to the work done by the attorney so long as the records do not relate to active and ongoing litigation and do not disclose information for the purpose of legal consultation between the public entity and its attorney.
- A public agency hiring a peace officer must review any files that must be disclosed by section 832.7 before hiring the officer.
If the governor approves SB 16, law enforcement agencies will face additional work to produce more police records and police personnel files. Every California law enforcement agency can expect to receive requests for each new category of disclosure if this law goes into effect. As with the passage of SB 1421, a flurry of litigation may also ensue and disputes over the law’s application will garner substantial public interest.
Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.< Back to Full Issue Print Article