This blog post was authored by J. Scott Tiedemann & Lars T. Reed
On Thursday, June 27, 2019, Governor Newsom signed into law the new State Budget as well as accompanying budget trailer bills. One of the budget trailer bills, Senate Bill 94, contains clean-up language for provisions added to the California Public Records Act by last year’s Assembly Bill 748.
AB 748, which we have discussed in previous blog posts, amended the Public Records Act, starting July 1, 2019, generally to require agencies to disclose video and audio recordings of “critical incidents” involving the use of force resulting in great bodily injury or the discharge of a firearm by a peace officer or custodial officer at a person. Redaction and/or withholding of records is permitted to protect specified privacy interests. Disclosure of a record can also be delayed for between 45 days up to one year, depending on the circumstances, if disclosure would undermine an active criminal or administrative investigation.
An agency can withhold a recording if its disclosure would violate privacy interests of a person depicted in the recording and if the person’s privacy cannot be adequately protected through redaction. However, an agency must disclose the record to the subject whose privacy is sought to be protected (or to their legal representative). The question addressed by SB 94 is when that disclosure must occur. The question was raised because AB 748 included ambiguous language that could appear to require an agency to disclose a recording to a party whose privacy the agency sought to protect, even if the agency could otherwise withhold the record because it would undermine an active criminal or administrative investigation.
Under the original language of AB 748, the provision explaining how these provisions interact when they all apply was ambiguous: as written, it would require the agency to disclose a recording to the party whose privacy is implicated while simultaneously (and inconsistently) permitting the agency to withhold the recording for between 45 days to a year to protect an active investigation. SB 94 removes this inconsistency: it now only requires the agency to provide the requesting party with the estimated date for disclosure of the recording and allows the agency to withhold the record if certain conditions are met.
As a budget trailer bill, SB 94 took effect immediately upon the Governor signing the bill into law. As such, the cleaned-up language in SB 94 will already be in effect when the disclosure requirement under Government Code section 6254 begins on July 1, 2019.