ZACHERY A. LOPES
Rains Lucia Stern St.
Phalle & Silver, PC
New state legislation has recently gone into effect that drastically alters the confidentiality privilege afforded to peace officers for the information contained within their personnel files. Senate Bill 1421 and Assembly Bill 748 allow public disclosure of specific categories of personnel file information upon a request to a law enforcement employer pursuant to the California Public Records Act (CPRA), Government Code section 6250 et seq. This article briefly summarizes the new laws and provides guidance on what steps law enforcement labor associations can and should take to protect their members’ rights to the fullest extent possible.
Prior to SB 1421 and AB 748, all peace officer personnel records were deemed confidential and non-disclosable by public agencies absent compliance with the statutory Pitchess process (Pen. Code § 832.7[a]; Pitchess v. Superior Court  11 Cal.3d 531; Evid. Code §§ 1043, 1045). This was a confidentiality privilege or right that could be claimed by both the individual peace officer and their employing agency (City of Hemet v. Superior Court  37 Cal.App.4th 1411, 1430). The privilege not only extended to the actual physical records or files maintained by the employing agency, but also protected the information contained in or obtained from such records (Pen. Code § 832.7[a]; Cal. Const. Art. I, Sec. 3[b]; Hackett v. Superior Court  13 Cal.App.4th 96, 98-99; City of San Diego v. Superior Court  136 Cal.App.3d 236, 237). State law treated such information as confidential for more than 40 years.
SB 1421 and AB 748 significantly alter this longstanding confidentiality right by amending the Pitchess statutes and CPRA to make certain categories of peace officer personnel records non-confidential and therefore disclosable by public agencies.
As of January 1, 2019, four specific categories of peace officer personnel file material are no longer confidential and may lawfully be disclosed by an employer: (1) records reflecting incidents involving the discharge of a firearm at a person; (2) records reflecting incidents involving use of force resulting in death or great bodily injury; (3) records relating to sustained findings by a law enforcement agency or “oversight agency” of “sexual assault”; and (4) records relating to sustained findings by a law enforcement agency or “oversight agency” of “dishonesty” (Pen. Code § 832.7[b]).
SB 1421 does not define “oversight agency,” but possibly includes findings by local police commissions or independent auditors. “Sexual assault” is defined very broadly to encompass seemingly non-criminal behavior such as engaging in completely consensual sexual activity while on duty (Pen. Code § 832.7[b][B][ii], “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” and “propositioning for or commission of any sexual act while on duty”).
Agencies are required to redact certain information prior to disclosing these records. Prior to disclosure, agencies must redact the records in order to maintain the confidentiality of particular types of personal information, and any information to protect the identity of a peace officer “[w]here there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer” (Pen. Code § 832.7 [b][C]–). This requires more than “vague safety concerns” applicable to all officers involved in shootings generally (Long Beach Police Officers’ Assn. v. City of Long Beach  59 Cal.4th 59, 67). Likewise, the “mere assertion of possible endangerment” will not suffice (Id.). Rather, specific facts need to be articulated demonstrating that a particular officer will be exposed to significant danger if the officer’s identity is not withheld from public disclosure.
Agencies may delay disclosure for records concerning firearm discharges and uses of force resulting in death or great bodily injury. Agencies may withhold otherwise disclosable records relating to these specific types of incidents for specified periods during an “active criminal investigation” (Pen. Code § 832.7 [b][C]). Such records may be withheld for up to 60 days or until the district attorney’s criminal filing decision, whichever is sooner. Disclosure may continue to be withheld beyond 60 days if disclosure would interfere with a criminal enforcement proceeding (Pen. Code § 832.7 [b][C][A][ii]–[iii]). Records cannot be withheld for more than 18 months unless “extraordinary circumstances” warrant such a delay for the criminal prosecution of somebody other than a peace officer. For prosecutions of peace officers, the records cannot be withheld for more than 18 months under any circumstances. However, if criminal charges are filed, the agency may withhold disclosure until verdict or the time to withdraw a plea deal (Pen. Code § 832.7 [b][C][B]). For administrative investigations, the agency may delay disclosure until 30 days after completion of the investigation, but no longer than 180 days after the agency became aware of the incident in question, whichever is later (Pen. Code § 832.7 [b][C][C]).
AB 748, operative on July 1, 2019, amends the CPRA to make audio and video records “relat[ing] to” a “critical incident” disclosable unless an agency demonstrates that disclosure would “substantially interfere” with an active criminal or administrative investigation, or would violate the privacy rights of persons depicted in the evidence.
An audio or video record “relates to a critical incident” if it depicts: (a) an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or (b) an incident in which a peace officer or custodial officer’s use of force results in death or great bodily injury (Gov. Code § 6254[f][C]).
Agencies may delay disclosure during an active criminal or administrative investigation. An agency may delay disclosure of audio or video recordings for specified time periods: up to one year if disclosure would “substantially interfere with the investigation,” and beyond one year if the agency demonstrates by “clear and convincing evidence” that disclosure would substantially interfere with the investigation, which must be reassessed every 30 days (Gov. Code § 6254[f][A][ii]). “Clear and convincing evidence” is a high standard of proof — between “preponderance” and “beyond a reasonable doubt” — requiring “a finding of high probability” (In re Angelia P.  28 Cal.3d 908, 919, citations omitted; Cal. Civil Jury Instruction No. 201 [“highly probable that the fact is true”]).
This new language tying an agency’s ability to withhold disclosure to an “active investigation” appears to abrogate existing law for audio and video evidence “relating to” a “critical incident,” which holds that the CPRA’s “investigatory exemption” (contained in Government Code §6254[f]) extends indefinitely, even beyond the completion of an investigation (Williams v. Superior Court  5 Cal.4th 337, 354–362).
An agency “may use redaction technology” to redact an otherwise disclosable recording if not doing so would “violate the reasonable expectation of privacy” of a person depicted in a recording (Gov. Code § 6254[f][B][i]). The extent of the redaction, however, cannot interfere with the ability to “fully, completely, and accurately comprehend the events captured in the recording.”
AB 748’s provisions do not apply to recordings involving peace officers employed by the California Department of Corrections and Rehabilitation (Gov. Code § 6254[f][F]). The new law sets a floor, not a ceiling — agencies are free to adopt policies providing greater access to this material (Gov. Code § 6254[f][D]).
Do SB 1421 and AB 748 Operate Retroactively?
This is an open question. A significant legal debate presently exists as to whether the new laws apply to existing personnel records and audio and video recordings of incidents occurring prior to January 1, 2019. A retroactive law is one that unwinds established rights that existed prior to the new law’s operative date. Because peace officers had an existing confidentiality right to the personnel file information targeted by the new laws, applying them to disclose confidential records of conduct occurring prior to their operative date would constitute a retroactive application. Generally, however, laws operate prospectively only — not retroactively. The general rule is that a new law will not be interpreted to have a retroactive effect unless the law specifically says so, or the legislative history of the law “clearly” indicates the Legislature intended a retroactive operation. Neither SB 1421 nor AB 748 states that its provisions apply retroactively, and this law firm has not found any “clear” indication of the Legislature’s intent to so apply to these new laws. Despite this, many agencies have indicated that they intend to apply the new laws in a retroactive manner and disclose records of specified conduct that occurred at any time prior to January 1, 2019.
Lawsuits have been filed over this exact issue. The Los Angeles Superior Court issued an order prohibiting the City of Los Angeles and its police department from disclosing personnel records reflecting conduct that occurred prior to January 1, 2019. The order will be in effect until the substantive merits of the lawsuit have been decided by the court. Similar lawsuits have been filed in other jurisdictions, including San Bernardino County in an action filed by the San Bernardino County Sheriff’s Employees’ Benefit Association. Like the Los Angeles Superior Court, the San Bernardino Superior Court issued a restraining order prohibiting the retroactive disclosure of personnel records based on SB 1421. Additional lawsuits are expected to be filed as well.
Final resolution of the retroactivity question may not occur until the appellate process has been exhausted. Until that happens, law enforcement labor associations should take the position with their respective employer agencies that personnel records reflecting conduct that occurred prior to the new law’s effective date remain confidential and cannot be disclosed.
What Can Associations Do?
Public agency employers must comply with the new disclosure laws. Associations should, however, take immediate action to ensure that employers are taking all steps necessary and proper to protect their members’ confidentiality rights. There are two steps in this process: (1) meet and confer with the employing agency, and (2) initiate legal action when necessary and appropriate.
Meet and confer: Associations should immediately demand to meet and confer with their respective employing agencies, and endeavor to reach an agreement on policies and practices to ensure that their members’ rights will be protected to the fullest extent possible. The following issues are a few examples of what should be on the agenda:
1. Prospective application: Confirm with the employer that the new disclosure requirements for SB 1421 do not apply to records reflecting conduct occurring prior to January 1, 2019. Confirm that the new disclosure requirements for AB 748 do not apply to audio and video recordings of conduct occurring prior to July 1, 2019.
2. Notification to association/affected members: Confirm with the employer that it will immediately notify all affected employees and their labor association of any CPRA requests received for the above records, or any employer decision to affirmatively disclose such records without a request. The individual members should also receive prior notice of disclosure in order to prepare for media publication. This will give associations the opportunity to work with the employer to ensure that all necessary steps are taken to comply with lawful withholding deadlines, redaction efforts and record generation.
3. Discuss file retention policies: Confirm or establish a retention/destruction agreement for peace officer personnel records with the employer. Most likely there are policies already in place concerning how long records and recordings are retained, and they should be discussed to ensure that they are followed and/or determine if they should be amended.
4. Oversight agencies: Agree that “oversight” agencies — such as police commissions, offices of inspectors general, etc. — cannot maintain personnel records separate and apart from the employing department or agency, and that only the employing agency has standing to respond to CPRA requests.
5. Video and audio release/redaction: Discuss the employer’s redaction processes, abilities and resources to ensure that appropriate redaction can be done in a timely manner.
Legal action: In the event that an employer is preparing to release records in violation of the new disclosure obligations, or is not properly invoking its discretion to delay disclosure or redact records to be disclosed, legal action can be pursued to compel public agencies to comply with the law.
There are a few things to keep in mind for such lawsuits, however. First, employers have a relatively short time frame in which to respond to CPRA requests. Within 10 days of receipt of the request, employers must make a determination on whether they will release the requested records (Gov. Code § 6253[c]). Accordingly, associations must have prompt notice of any CPRA request received by an employer affecting a member’s personnel file information, so as to allow adequate time both to evaluate the request and the employer’s initial response position, and to prepare and file an action in Superior Court, if necessary.
Second, the losing party in such lawsuits will likely have to pay the prevailing party’s attorney’s fees. These fees can be very substantial, especially if the lawsuit is appealed beyond the Superior Court stage. Therefore, it is imperative that any association or individual contemplating legal action on these issues obtain thorough and competent legal advice, and weigh the costs and benefits attendant to filing such actions, prior to any formal filing.
In summary, SB 1421 and AB 748 drastically affect the longstanding personnel file confidentiality rights for law enforcement. Associations should take immediate action and begin meeting and conferring with their respective employers concerning how these new laws will be implemented, and what steps will be taken to protect members’ privacy rights to the fullest extent possible. The legal issues discussed in this article are complex — association leaders should not hesitate to contact their legal representative for specific guidance.
About the Author
Zachery A. Lopes is an associate with Rains Lucia Stern St. Phalle & Silver, PC’s Collective Bargaining and Litigation groups, representing the firm’s labor association clients in all collective bargaining matters and civil and administrative litigation. He also represents individual peace officers in civil litigation
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