In Becerra v. Superior Court of the City and County of San Francisco (2020) 2020 WL 486863, the First District Court of Appeal held that Senate Bill 1421– amending the Penal Code particular to peace officer records – required a public agency to disclose records in its possession related to officer-involved shootings, officer use of force resulting in great bodily injury or death, or a sustained finding of officer dishonesty or sexual assault, absent a showing by the agency that an exemption applies.
Legal Background
The California Public Records Act (CPRA) provides a right of access to public records, unless the record is expressly exempt. Peace officer records are generally exempt from public inspection pursuant to Government Code section 62554(f) and Penal Code sections 832.7 and 832.8.
Effective January 1, 2019, Senate Bill 1421 (“SB 1421”) amended Penal Code sections 832.7 and 832.8 to provide that public records related to officer-involved shootings, officer use of force resulting in great bodily injury or death, or a sustained finding of officer dishonesty or sexual assault are no longer confidential and must be made available for public inspection pursuant to the CPRA, with limited exception. The revisions provided both officer personnel records and “records maintained by any state or local agency” are subject to disclosure.
Factual Background
In early 2019, the First Amendment Coalition and local radio station KQED submitted separate CPRA requests to the California Department of Justice (“Department”) for records disclosable pursuant to SB 1421 (the “requests”). The Department partially denied the requests, agreeing to produce only non-exempt, responsive records relating to peace officers employed by the Department. The Department directed the requesters to seek records of peace officers not employed by the Department from other agencies, but did not deny that it held such records.
The requestors sued to compel the Department to disclose all records in its possession relating to peace officer conduct covered by SB 1421. The trial court granted the request and ordered the Department to produce the records. The Department challenged the trial court’s decision and sought relief to vacate the order to the extent that it required disclosure of Department records pertaining to other agencies’ officers.
Appellate Holding
The Court of Appeal reviewed the case independently and held that members of the public are entitled to inspect any public records “retained by or in the possession of…the Department, even if the record was not “prepared, owned, or used by the [Department].” As such, the Department was ordered to disclose responsive, non-exempt records of peace officers, even if the officer was employed by another agency.
The Court found that its determination was supported by both the legislative history and the legislative findings of SB 1421. The legislative history showed SB 1421 was intended to “in very limited circumstances, allow[] local law enforcement agencies and law enforcement oversight agencies to provide greater transparency.” (Emphasis in original.) The legislative findings accompanying SB 1421 provided “the public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of forces.” Considering these facts, the Court concluded, SB 1421 was intended to provide “transparency…by allowing access to officer-related records maintained either by law enforcement employers or by any state or local agency with independent law enforcement oversight authority.” Thus, the Department was required to provide responsive, non-exempt records regardless of if the record was pertained to an officer not employed by the Department and regardless of if the record was prepared by another agency.
The Court clarified that SB 1421 did not mandate that public agencies produce all records falling under its provisions. Instead, the records are only subject to disclosure when the public interest in disclosure is balanced against the public interest in nondisclosure, including certain personal privacy interests. This was supported by Penal Code sections 832.7(b)(5), (6) and (7), which allow the agency to redact specific information from the records when disclosing, and to withhold other records until the conclusion of an investigation. In short, the Court held, Government Code section 6255(a), commonly called the CPRA “catch-all exemption,” was not precluded by the enactment of SB 1421. To that end, the Court articulated examples of information that could be redacted, including, for example: “to remove personal date or information outside the name and work-related information of the officers; the protect the anonymity of complainants and witnesses; to protect confidential medical, financial” information, and so on.
In this case, the Court found that the Department had failed to carry its burden of proof to show why redactions were appropriate or why the public interest in non-disclosure outweighed disclosure where the Department only submitted a two-page declaration without specific facts on the burden involved – e.g., work hours to coordinate with subdivisions of the Department, costs in employee time recovering and reviewing records, costs to make copies.
The Court of Appeal held in favor of the requestors and ordered each party to pay its own costs on appeal.
Key Take Away
A public agency may not withhold a record in its possession because it pertains to a non-employee officer or because it was prepared by a different agency.
Questions
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.
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597
Olivia Clark
oclark@kmtg.com | 916.321.4290