On January 7, 2020, Assemblyman Jordan Cunningham (R-San Luis Obispo) reintroduced Assembly Bill 1599, which proposes to expand upon Senate Bill 1421 by making more records relating to officer-involved sexual assault available to the public. SB 1421 changed the status quo by amending Government Code section 832.7 to generally allow disclosure of records related to certain categories of officer misconduct: (1) officer-involved shootings; (2) certain uses of force; (3) sustained findings of sexual assault involving a member of the public; and (4) sustained findings of certain types of dishonesty. We described this legislation in detail in a previous Special Bulletin.
Despite SB 1421’s attempt to streamline disclosure of such records, language contained within Penal Code section 832.8(b) has created some complexities with regard to how public agencies handle California Public Records Act (PRA”) requests. Specifically, Penal Code section 832.8(b) defines “sustained” as “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code that the actions of the peace officer or custodial officer were found to violate law or department policy.”
Compliance with a PRA request for records relating to sustained findings of sexual assault seems straightforward where imposed discipline has been upheld after an administrative hearing. It is also clear that if the investigation is ongoing, or an administrative appeal of imposed discipline is pending, then the allegations have not yet been “sustained” and disclosure is not yet warranted. However, what if a peace officer decides to resign prior to the completion of an investigation or prior to discipline, in an effort to dodge a negative mark on their record? *Cue AB 1599.* AB 1599 seeks to “increase police transparency” and expand upon SB 1421 by modifying the language of Penal Code section 832.8(b). It would make available for public inspection “personnel records pertaining to a peace officer or custodial officer accused of sexual assault involving a member of the public when the peace officer or custodial officer resigns before the employing agency has concluded its investigation into the sexual assault…” Thus, records previously which at least arguably may not have been subject to disclosure would now clearly be subject to disclosure to the public pursuant to a PRA request.
AB 1599 and its proposed changes to the existing law are still in its preliminary stages. Until further legislative guidance on SB 1421 has been provided and AB 1599 becomes law (or not), we recommend public agencies seek case-specific legal advice to decide whether they will disclose records regardless of whether a “sustained finding” has been made regarding officer-involved sexual assault, or whether a peace officer has resigned prior to the completion of an investigation.
We authored prior blog posts on SB 1421 which can be found here:
In the meantime, stay tuned for upcoming updates on AB 1599.