This post was authored by Geoffrey S. Sheldon & Lars T. Reed.

Immediately after California Senate Bill 1421 went into effect on January 1, 2019, public agencies across California began receiving requests for public records relating to certain high-profile categories of peace officer misconduct. As we described in a previous Special Bulletin, SB 1421 does not explicitly state whether it applies to records created before the new law’s effective date. Several police labor organizations have taken the position that SB 1421 was not intended to apply retroactively to records that are in an agency’s possession but were created before January 1, 2019. This question is the subject of multiple parallel lawsuits across the state. Over the past three weeks, court rulings have begun to weigh in.

The first ruling came from Contra Costa Superior Court, where the court denied six police unions’ petitions to limit SB 1421 disclosures to records created after January 1. The court had previously issued temporary restraining orders barring release of pre-2019 records pending full consideration on the merits of the petitions. After a hearing, the court denied the unions’ petitions for injunctions, concluding that the new law only applies to public records requests received after January 1, 2019, and only requires disclosure of records maintained by a public agency at the time the agency receives a request. Therefore, the court ruled that law does not act retroactively, but nonetheless requires the release of pre-2019 records if those records are in the agency’s possession at the time it receives a request.  However, the court stayed its ruling, extending the temporary restraining order, to allow the unions time to appeal. The unions filed an appeal on February 15, 2019, and the First District Court of Appeal granted a stay of the superior court’s order that same day.

A second ruling came from Ventura County Superior Court, which ruled in favor of the Ventura County Deputy Sheriff’s Association, issuing a preliminary injunction that prevents the County from releasing records of pre-2019 incidents. The court did not issue a ruling on the merits of the legal question, but blocked the release of records pending a ruling from a higher court on whether pre-2019 records are covered by the new law.

The most recent ruling comes from Los Angeles County Superior Court, in a case brought by the Los Angeles Police Protective League against the City of Los Angeles. On Tuesday, February 19, 2019, the court ruled against the union, concluding that SB 1421 does not operate retroactively even if applied to older records, and that there is no evidence of legislative intent to preclude pre-2019 records. The Court also ruled that peace officers did not have a “vested right” to privacy that would preclude the Legislature from stripping pre-2019 records of confidentiality. The Court stayed its ruling until March 1, 2019, extending a prior temporary restraining order to allow time for the union to appeal. The same judge that heard the Police Protective League’s case is also reviewing similar petitions brought against the County of Los Angeles by the Association for Los Angeles Deputy Sheriffs and the Professional Peace Officers Association.

Because each of these rulings come from the Superior Courts, they are not binding except for the parties to each case. As of the date of this post, there is no definitive answer to whether SB 1421 requires disclosure of pre-2019 records. LCW has a designated team of attorneys closely following developments in the new law, and we will continue to post updates on new rulings as they occur. Recognizing that this area of the law will remain unsettled until there is a ruling from either a Court of Appeal or the California Supreme Court, we believe that the appellate courts will more likely than not interpret SB 1421 to require disclosure of at least some pre-2019 records that predate 2019. We therefore recommend that agencies work closely with trusted legal counsel to decide how to address public records requests made pursuant to SB 1421.