New Legislation Would Dramatically Change "Pitchess" Regime and Public Records Act; Allows Increased Public Access to Investigations and Body Camera Video

Category: Blog Posts
Date: Sep 6, 2018 02:35 PM
New Legislation Would Dramatically Change "Pitchess" Regime and Public Records Act; Allows Increased Public Access to Investigations and Body Camera Video

This Special Bulletin was authored by Paul Knothe.

On the evening of August 31, 2018, the California Legislature passed two bills intended to increase public access to information regarding use of force incidents and officer misconduct. In the event Governor Brown signs these bills into law, law enforcement agencies will need to adapt their policies, procedures and practices regarding peace officer personnel files and California Public Record Act (“CPRA”) requests beginning as soon as January 1, 2019 for some records, and July 1, 2019 as to others, as described below.

SENATE BILL 1421

Penal Code sections 832.7 and 832.8 currently make personnel records of peace officers and/or custodial officers confidential, and also prevent such records from being disclosed in any criminal, civil or administrative proceeding except pursuant what is commonly called a “Pitchess motion.”   For decades, this meant that records maintained in an officer’s general personnel file, or any other file used for a personnel purpose, including records of disciplinary investigations, could not be publically released, including in response to public records requests under the CPRA.

Assuming it is signed into law, SB 1421 will mandate disclosure of documents related to certain high-profile categories of officer misconduct: certain uses of force, sexual assault and dishonesty.

Covered Incidents

SB 1421 will amend Section 832.7 to require disclosure of records and information relating to the following types of incidents in response to a request under the CPRA , i.e., without a Pitchess motion:

  • Records relating to the report, investigation, or findings of an 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 an incident in which the use of force by a peace officer or custodial officer against a person results 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 the purposes of section 832.7 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 any other official favor, or under the color of authority.   The propositioning for, or commission of any sexual act while on duty is considered a sexual assault.
    • “Member of the public” is defined for the purposes of section 832.7 to mean any person not employed by the officer’s employing agency, and to include any participant in a cadet, explorer, or other youth program affiliated with the agency.
  • 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. Agencies should carefully word their nature and scope of investigation letters to be clear as to whether a dishonesty allegation is of a type that would give rise to a disclosure, rather than simply listing “dishonesty” as a charge without further detail.

Records of Covered Incidents that Must be Disclosed

SB 1421 specifies that the types of records of covered incidents that must be released pursuant to a CPRA request include:

  • All investigative reports.
  • Photographic, audio, and video evidence; transcripts or recording of interviews.
  • Autopsy reports.
  • All material compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, or whether the officer’s action was consistent with law and agency policy for purposes of disciplinary or administrative action, or what discipline to impose or corrective action to take.
  • Documents setting forth finding or recommended filings.
  • Copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.

SB 1421 does not specifically address the applicability of the standard CPRA exemptions, other than the law enforcement investigation exemption under Government Code section 6254(a)(1)(f) to these documents, but the mandatory language “shall not be confidential” and “shall be made available for public inspection” indicate the legislature’s intent to make these documents available under the CPRA.

Redactions

SB 1421 restricts redaction of records before disclosing, except for the following reasons:

  • To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.
  • To preserve the anonymity of complainants and witnesses.
  • To protect 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 records.
  • Where 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, custodial officer, or another person.
  • Other circumstances not listed above, where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information. This language mirrors the catch-all provision of the CPRA, and courts will likely interpret the law similarly.

Acceptable Delays

SB 1421 sets out several circumstances in which agencies may delay the mandated disclosure of records.

Active Criminal Investigations

During an active criminal investigation, disclosure may be delayed for up to 60 day from the date the force occurred or until the district attorney determines whether to file criminal charges related to the use of force, whichever is sooner. If an agency chooses to delay disclosure pursuant to this provision, it must justify that delay in writing.  It may extend the delay under certain circumstances, but is required to periodically provide, in writing, the specific basis for the delay.

Criminal Prosecutions

If criminal charges are filed related to the force incident, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial, or, if a pleas of guilty or no contest is entered, the expiration of time to withdraw that plea.

Active Administrative Investigations of Serious Force Incidents or Shootings

During an active administrative investigations of incidents involving the discharge of a firearm at a person by peace officer or custodial officer, or the use of force resulting in death or great bodily injury, an agency may delay disclosure of records  while the investigating agency determines whether the use of force violated a law or agency policy, but no longer than 180 days after the date of the employing agency’s discovery of the use of force, or allegation of use of force, by a person authorized to initiate an investigation, or 30 days after the close of any criminal investigation related to the peace officer or custodial officer’s use of force, whichever is later.  This effectively requires agencies to complete these investigations within six months, as opposed to the one year permitted under the Public Safety Officers Procedural Bill of Rights Act.

No Disclosure of Records Related to Frivolous or Unfounded Civilian Complaints

SB 1421 does not require agencies to disclose records or information related to civilian complaints that are found to be frivolous or unfounded.  The statute is silent as to whether this exception applies to administrative investigations initiated for reasons other than a civilian complaint.

ASSEMBLY BILL 748

The CPRA currently exempts from disclosure records of investigations conducted by state or local police agencies. If signed into law, AB 748 will amend the CPRA to mandate disclosure of video and audio recordings of “critical incidents” involving police agencies, as defined in the statute, except in delineated circumstances when the disclosure of the recording may be delayed, or when recordings may be redacted or withheld.

Recordings of “Critical Incidents”

Under AB 748, an audio or video recording relates to a “critical incident,” and therefore is subject to disclosure, if it depicts an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or 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 further provides that “an agency may provide greater public access to video or audio authority than the minimum standards set forth in this paragraph.” This means that, as under current law, an agency has the discretion to release more recordings, and to do so sooner than required by law.

Delay of Release of Recording for Active Investigation

AB 748 provides that, during an active criminal investigation, disclosure of a recording related to a critical incident may be delayed for up to 45 calendar days after the date the agency knew or should have known about the incident, if, based on the facts and circumstances depicted in the recording, disclosure would substantially interfere with the investigation such as by endangering a witness or confidential source.  If an agency delays disclosure for this reason, the agency is required to provide to the requester, in writing, the specific basis for the determination that disclosure would substantially interfere with the criminal investigation and an estimated date for disclosure.  Note that this means recordings may be required to be disclosed sooner than reports are required to be disclosed under SB 1421.

The agency may continue to delay disclosure of a recording of a critical incident beyond this 45-day period up to one year from the date it knew or should have known about the incident if it is able to demonstrate by clear and convincing evidence that disclosure would substantially interfere with the investigation.  The agency is required to reassess withholding and notify the requester every 30 days.  The recording must be released promptly when the specific basis for withholding is resolved.

Redacting or Withholding of Recordings Based on Subject Privacy

AB 748 permits an agency to withhold a recording related to a critical incident, without limitation as to time, if it determines that, on the facts of the particular case, the public interest in withholding the 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 a subject depicted in the recording.   The agency is required to provide in writing to the requester the specific basis for the expectation of privacy and the public interest served by withholding the recording.

The agency is only permitted to withhold the recording if it demonstrates that the reasonable expectation of privacy of the subject cannot adequately be protected through redaction and that interest outweighs the public interest in disclosure.  The statute specifically authorizes redaction technology, including blurring or distorting images or audio to obscure those specific portions of the recording that protect the interest, however, redaction shall not  interfere with the viewer’ s ability to fully, completely, and accurately comprehend the events captured in the recording.

Even if redacting is inadequate to protect the reasonable expectation of privacy of a subject, the agency must produce the recording, unredacted, to the following requesters:

  • The subject of the recording whose privacy is to be protected, or his or her authorized representative.
  • If the subject is a minor, the parent or legal guardian of the subject who is to be protected.
  • If the subject is deceased, an heir, beneficiary, designated immediate family member, or authorized legal representative.

CONCLUSION

The legislature did not designate either SB 1421 or AB 748 as emergency legislation. SB 1421 will, therefore, take effect on January 1, 2019.  AB 748 specifically delays the obligation to produce the affected audio and video recordings until July 1, 2019.  It would not be surprising to see a large influx of records requests beginning in January 2019.  Although these new requirements will pose significant burdens and costs on agencies, they may also provide an opportunity to build public trust through increased transparency.  Agencies should, therefore, conduct administrative investigations and draft disciplinary documents for the types of complaints affected by SB 1421 and AB 748 with the expectation that these records will be subject to public inspection.  Agencies should consult with their trusted legal counsel regarding not only how to bring their policies into line with the new laws, but to assist in preparing investigation reports and disciplinary notices that will meet legal requirements and survive public scrutiny.

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