News
>BACK

SB 1421 Reduces Confidentiality Protection for Peace Officers

Posted on Thursday, November 01, 2018 at 12:00AM

 

GIDIAN R. MELLK
Associate Attorney
Rains Lucia Stern St. Phalle & Silver, PC

California Senate Bill 1421 substantially erodes the confidentiality laws that have long-protected California peace officers. Its purpose, according to the bill’s authors, is to “stem the misuse of peace officer authority by making public information pertaining to serious officer misconduct, including officer-involved shootings and other serious uses of force.”
Prior to the bill’s passage, Penal Code §§ 832.7 and 832.8 provided that an officer’s “personnel records,” i.e., any file maintained under that officer’s name by the employing agency containing records relating to:
1. personal data;
2. medical history;
3. election of employee benefits;
4. employee advancement, appraisal or discipline;
5. complaints, or investigations of complaints, concerning events in which the officer participated or perceived, and pertaining to the manner in which he or she performed his or her duties; and
6. any other information the disclosure of which would constitute an unwarranted invasion of personal privacy, could generally not be disclosed in any civil or criminal discovery except through the filing of Pitchess Motions.
Under the new law, P.C. § 832.8 maintains its definition of “personnel records,” but § 832.7 has been drastically revised. It now contains a multitude of exceptions to the maintenance of confidentiality of those records. The records which shall be made available for public inspection pursuant to the California Public Records Act are as follows:
1. Any record relating to the report, investigation, or findings of an incident involving the discharge of a firearm at an individual by a peace or custodial officer;
2. Any record relating to the report, investigation or findings of an incident in which the use of force by a peace or custodial officer against an individual resulted in death or great bodily injury;
3. Any record relating to an incident in which a sustained finding was made by a law enforcement or oversight agency that a peace or custodial officer engaged in sexual assault against a member of the public, including the proposition of or commission of any sexual act while on duty; and
4. Any record relating to an incident in which a sustained finding was made that a peace or custodial officer engaged in dishonesty directly relating to the reporting, investigation or prosecution of a crime, or directly related to the reporting of, or investigation of misconduct by, another peace or custodial officer.
The records now subject to release are extensive: they include all
• investigative reports;
• photographic, audio and video evidence;
• transcripts or recordings of interviews;
• autopsy reports;
• all material compiled and presented to the district attorney or any other body charged with determining whether to file criminal charges against an officer or determining whether the officer’s action was consistent with law and agency policy;
• documents setting forth findings or recommended findings;
• and copies of all disciplinary records relating to the incident.
If an investigation or incident involves multiple officers, this information will only be released as to those officers against whom sustained findings were made. However, relevant factual information related to the actions of an officer against whom sustained findings were not made may be released if such information is relevant to sustained findings against another officer that are properly subject to release.
An employing agency may redact the above-listed records only for five specifically delineated purposes:
1. To remove personal data or information, e.g., home address, telephone number, identities of family members;
2. To preserve the anonymity of complainants and witnesses;
3. Where there is a “specific, articulable and particularized” reason to believe that disclosure would pose a significant danger to the safety of the officer or another;
4. Where, on the particular facts of the case, the public interest in not disclosing the information clearly outweighs the public interest in disclosing it; and
5. If the incident described in the records is the subject of an active criminal or administrative investigation.
In the event of an ongoing criminal or administrative investigation, the statute contains a plethora of subsections discussing the reasons for delaying the release of the records, and the timeline for their eventual release.
The amended § 832.7 maintains the provision that an employing agency may disclose factual information concerning a disciplinary investigation if the subject officer, or his or her representative, knowingly makes a false statement concerning the investigation or the imposition of discipline, and such false statement is published via television, radio, or newspaper. In such an event, the agency may disclose only facts that specifically refute the false statement. 
Aside from this office’s objection to this erosion of police officer confidentiality, the additional danger here is that we are likely to see future legislative proposals to broaden the categories of public record disclosure, and eventually make all complaint investigations subject to Public Record Act disclosure.

About the Author
Gidian R. Mellk is an associate in the Rains Lucia Stern St. Phalle & Silver Litigation Group. She focuses primarily on prosecuting (and, at times, defending) writs of mandate on behalf of peace officers in both the Superior Court and the Court of Appeal. She is proud to work on behalf of union members with RLS. 

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.