On September 30, 2021, the Governor signed Senate Bill 16 (“SB 16”) relating to the disclosure of police officer personnel records pursuant to the California Public Records Act, Government Code section 6250 et seq. (“PRA”). Specifically, SB 16 amends Evidence Code section 1045 and Penal Code sections 832.5, 832.7, 832.12, and 832.13 to make certain police personnel records non-confidential, extend the retention period for such records, and expedite disclosure of such records. Law enforcement agencies and officers also now have additional responsibilities to review and report incidents, both prior to hiring, and even during employment. These changes become effective January 1, 2022.
BACKGROUND
Historically, police personnel records were generally exempt from disclosure unless subject to a successful Pitchess motion. Senate Bill 1421, effective January 1, 2019, amended this general rule to require disclosure pursuant to a PRA request of police personnel records related to:
- An incident regarding an officer-involved shooting;
- An incident involving use of force resulting in death or great bodily injury;
- An incident involving sustained findings of sexual assault; and
- An incident involving a sustained finding of dishonesty.
CALIFORNIA’S AMENDED LAW
Senate Bill 16, effective January 1, 2022, amends California law to provide the following:
- While public agencies may redact the records to protect witnesses, victims, and whistleblowers, public agencies are now also required to disclose police officer personnel records related to an incident involving a sustained finding of:
- A complaint that alleges unreasonable or excessive force;
- A failure to intervene against another officer using force that is clearly unreasonable or excessive;
- Officer engagement in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status; and
- An unlawful arrest or an unlawful search.
- Public agencies are required to retain records of complaints for (1) at least five years where there was no sustained finding of misconduct and (2) at least fifteen years where there was a sustained finding of misconduct. In no case may such records be destroyed while a request for production or litigation is pending related to the records.
- Public agencies are required to produce police officer personnel records “at the earliest possible time and no later than 45 days from the date of a request for their disclosure,” unless temporarily withholding is permitted because of an active criminal investigation.
- Public agencies are expressly prohibited from charging more than the “direct costs of duplication” as provided in Section 6253(b), the general Public Records Act costs limitation, to produce police personnel records.
- If an officer resigns prior to the conclusion of an investigation, the records “shall be released” as if the investigation made a sustained finding.
- Prior to hiring an officer, law enforcement agencies are now required to request and review the prior personnel files of the candidate.
- Mandates every person employed as a peace officer immediately report all uses of force to the officer’s employing agency.
Note that SB 16 has a phased-in approach. Records relating to incidents that relate to the new categories of offenses added by SB 16 that occurred before January 1, 2022, are not subject to the time limitations of the bill until January 1, 2023. However, records of incidents that occur after January 1, 2022, are immediately subject to the time limitations of the bill.
Prior to the enactment of SB 16, most complaints against police officers were only required to be retained for 5 years. Now, cities and counties will not only have to change their practice but also their records retention schedules.
Questions
Kronick attorneys are closely monitoring new laws. If you have any questions regarding this Legal Alert, please contact the following attorneys from our office or the attorney with whom you typically consult.
Olivia Clark
oclark@kmtg.com | 916.321.4290
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597
Relevant Content
If you found value in this article, you might be interested in these links: