For decades, California’s peace officer personnel record confidentiality laws have provided the some of the most robust protections for officer personnel records in the nation. In recent years, however, public opinion has shifted in favor of transparency and accountability – especially with respect to incidents involving hot-button issues such as use of force, and race.
Under these confidentiality laws, known as the Pitchess statutes after the court decision that birthed them, a party in criminal or civil litigation, or an administrative hearing, cannot obtain officers’ personnel records without a court order finding good cause for their disclosure under specific standards of relevance. Further, because of the Pitchess statutes these records were not available to the general public under the California Public Records Act, the state’s equivalent to the Freedom of Information Act.
SB 1421, which went into effect January 1, 2019, represented a sea change – removing Pitchess protection from records pertaining to officer-involved shootings, uses of force resulting in death or great bodily injury, sustained findings of dishonesty in investigations, and sustained findings of sexual assault.[1] These records include all investigative reports; audio, photo, and video evidence; interviews; autopsy reports; all materials presented for review to determine whether to file criminal charges against an officer or for potential discipline; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident.
Following even more tumult and public scrutiny of law enforcement agencies, including scrutiny arising from the death of George Floyd, Governor Gavin Newsom signed SB 16 on September 30, 2021. This law, effective January 1, 2022, creates even more significant change. Most significantly, SB 16 removes Pitchess protection from the following types of records:
In addition to those cases where a sustained finding is actually completed through an investigation and an opportunity for appeal, SB 16 also makes accessible to the public any records of these four categories, plus records of the dishonesty and sexual misconduct categories under SB 1421, even where the officer resigned during the investigation.
Further, SB 16 expressly forbids agencies from relying on the attorney-client privilege to shield factual information provided to or discovered by lawyers in these types of investigations, as opposed to the lawyers’ opinions or impressions, and some billing records related to the work done by lawyers.
SB 16 resolves one question raised by SB 1421, and, against the grain of the rest of the legislation, resolves that question in favor of officer confidentiality. The prior legislation left agencies unsure of what to do about records of incidents involving multiple officers, not all of whom were found to have engaged in conduct that would place the records outside of Pitchess protection as to them. SB 16 establishes that if an officer committed misconduct that would not itself place the records outside of Pitchess protection, information about those allegations would remain confidential; however, factual information about that officer that was relevant to a finding against another officer that is open to the public must be released.
Agencies will have some time to prepare to comply with this change in the law. Although SB 16 takes effect January 1, 2022, it provides that the timelines for releasing records created before that date in the four new public categories go into effect January 1, 2023. This is likely a relief for agencies since many were hit with requests for all records in their possession covered by SB 1421 at the stroke of midnight on January 1, 2019.
SB 16 also expands California law enforcement agencies’ obligations to retain, and even create, records. California law already required agencies to establish procedures to investigate complaints by members of the public, and to keep for 5 years any records of these complaints, including related findings or reports regarding the complaints. SB 16 leaves this five-year retention requirement in place for complaints that do not result in sustained findings of misconduct, but requires that records of complaints that result in sustained findings be maintained for a minimum of fifteen years. For records that already exist, these 5-and 15-year clocks begin running on January 1, 2022, rather than the date the records are created. The new law also prohibits agencies from destroying any record while a request related to that record is being processed, or while any process or litigation is ongoing to determine whether that record is to be released.
With respect to admissibility, the Pitchess statutes previously required courts in criminal or civil cases to exclude evidence of complaints concerning conduct by officers that occurred more than five years before the event that is the subject of litigation. SB 16 removes the five-year limitation.
SB 16 also adds a requirement that officer “immediately” report all uses of force by that officer to his or her employing agency, but the new statute does not contain a definition of “use of force.” Significant uses of force obviously qualify, but questions remain as to whether lower levels such as control holds would necessitate this reporting.
Finally, SB 16 now obligates agencies to include in their hiring process for lateral officers a step that most agencies were already undertaking. Under existing law, officers who apply for lateral positions with other agencies are required to give written permission for the hiring agency to view his or her personnel file with any California agency that has employed them previously. SB 16 adds the requirement that the hiring agency must request and review that file.
High-profile events have placed law enforcement agencies under a microscope like never before. California’s new personnel record transparency laws provide information to any interested member of the public that was previously guarded closely and available only to parties who could prove a particular need to know. Agencies should work closely with their legal advisors to ensure they are complying with both the public’s right to information and officers’ confidentiality rights, and are not leaving themselves open to liability for violating either.
This article was originally published in the 2022 May/June version of Sheriff and Deputy
[1] The statute defines “sexual assault” 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 the color of authority. For purposes of this definition, the proposition for or commission of any sexual act while on duty is considered a sexual assault.”