New Legislation Changes Scope of Public Records Act Requests Regarding Law Enforcement Personnel Files and Media Records

On September 30, 2018, Governor Edmund G. Brown announced that he signed AB 1912 and SB 1421 into law. This series of legislation targets records managed by local police departments, expanding the types of records that the law enforcement must legally disclose in response to a California Public Records Act (“PRA”) request.

SB 1421

Senate Bill 1421 focuses on records regarding individual law enforcement officers. The bill requires that personnel records and records relating to specified incidents, complaints, and investigations involving officers are made available for public inspection pursuant to the PRA. Records such as investigative reports, photo/audio/video evidence, autopsy reports, and documents setting forth findings are all subject to disclosure. Affected incidents include:

  • An incident involving the discharge of a firearm at a person by an officer;
  • An incident in which the use of force by an officer resulted in death or great bodily injury;
  • Any record relating to an incident in which a sustained finding was made regarding sexual assault by an officer involving a member of the public; and
  • Any record relating to an incident in which a sustained finding was made relating to perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.

There are a number of exceptions to the disclosure requirement, including:

  • personal data or information, such as a home address, telephone number, or identities of family members;
  • to preserve the anonymity of complainants and witnesses;
  • to protect confidential medical, financial, or other information in which disclosure would cause an unwarranted invasion of personal privacy;
  • where there is a specific, particularized reason to believe that disclosure would pose a significant danger to the physical safety of the officer; and
  • where the public interest served by nondisclosure clearly outweighs the public interest served by disclosure.

Importantly, this bill specifically disclaims any attempt to amend the discovery procedure of obtaining police records established under Pitchess v. Superior Court (1974) Cal.3d 531.

AB 748

This bill requires law enforcement agencies to disclose video or audio recordings that relate to “critical incidents” that were previously exempt from PRA disclosure as records related to investigations conducted by law enforcement. A “critical incident” includes:

  • An incident involving the discharge of a firearm at a person by an officer.
  • An incident in which the use of force by an officer against a person resulted in death or in great bodily injury.

Law enforcement agencies, however, are permitted to withhold such records for 45 days if the disclosure would substantially interfere with an active investigation. This timeframe may be extended. Additionally, if the public interest in disclosure is outweighed by the reasonable expectation of privacy of a subject in the recording, the recording may be redacted to protect that interest. If the recording cannot be redacted, the recording may be withheld from the public; however, the recording must still be disclosed to the subject of the recording, or his or her parents or heirs as specified in the statute.

Impact on local agencies

Local agencies should rethink their PRA disclosure procedure in response to this legislation. In the event of a PRA request, agencies should consult with legal counsel to determine whether the agency must disclose the requested record, what is the specific timeframe applicable to disclose the record, and to determine whether an exception to disclosure applies.

Questions

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Mona G. Ebrahimi

mebrahimi@kmtg.com | 916.321.4597

Omer A. Khan

okhan@kmtg.com | 916.321.4332