This post was authored by J. Scott Tiedemann & Lars T. Reed.

On January 1, 2019, California Senate Bill 1421 went into effect. The new law allows members of the public to obtain certain peace officer personnel records that were previously available only through the Pitchess procedure by making a request under the California Public Records Act (“CPRA”).

We described this legislation in detail in a previous Special Bulletin. In short, SB 1421 amends Government Code Section 832.7 to mandate disclosure of records and information related to certain high-profile categories of officer misconduct: officer-involved shootings, certain uses of force, sustained findings of sexual assault, and sustained findings of certain types of dishonesty.

Immediately after the new law went into effect on January 1, public agencies across California began receiving broad CPRA requests for records covered by SB 1421. Below are our answers to some frequently asked questions and general tips for how to respond to SB 1421 requests.

For case-specific questions, agencies should consult legal counsel to ensure compliance with all relevant laws.  To that end, LCW has dedicated a team of lawyers to help clients deal with these time-sensitive and complex requests.

Does SB 1421 apply to records from before January 1, 2019?

SB 1421 does not explicitly state whether it applies to records created before the law’s effective date, January 1, 2019, and this question is the subject of some ongoing litigation.

In at least one case, a superior court judge has issued a temporary stay directing a public agency to refrain from retroactively enforcing SB 1421 pending a more detailed hearing. In addition, two police unions separately petitioned the California Supreme Court for a writ barring retroactive application of SB 1421 to records predating January 1, 2019. On January 2, 2019, the Supreme Court denied both of those writ petitions without commenting on the merits of their legal arguments. None of these cases have any binding effect as precedent, so the question whether SB 1421 applies retroactively remains unanswered for the moment. It seems likely that the courts will eventually provide some clarification as litigation continues, but the clarification likely will not come in time to help agencies with the first round of requests that they have already received.

In the meantime, pending guidance from the courts or clarifying legislation, we recommend that agencies seek case-specific legal advice to decide whether they will disclose records regardless of when the records were created, or only disclose responsive records that are created after January 1, 2019.  Recognizing that there may be some room for debate, we believe that it is more likely than not courts will interpret SB 1421 to require disclosure of at least some records that predate 2019.

Each approach carries with it some risk, so agencies should carefully weigh the risks and potential benefits.  In mitigation of some of the risks associated with releasing personnel records predating 2019, agencies should consider providing advance notification to the affected peace officers and their labor unions to afford them the opportunity to seek judicial relief from the anticipated disclosure.

How soon must an agency respond to a request for records?

Under the CPRA, an agency generally has 10 days from the receipt of a request for public records to determine whether any part of the request seeks copies of disclosable records in the agency’s possession. However, in “unusual circumstances” the agency may extend this deadline by up to 14 days by providing a written notice to the requesting party. For purposes of the CPRA, “unusual circumstances” means any of the following:

• The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
• The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
• The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
• The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

For “blanket” requests that seek a wide range of records or information covered by SB 1421, a public agency may have cause to invoke one or more of these grounds, but the determination should be made on a case-by-case basis.

If and when an agency determines that a CPRA request seeks disclosable records, it should “promptly” make those records available or provide copies of them. The CPRA does not set a specific time frame for the actual disclosure of records; this will vary depending on the circumstances of any given request, including the size and scope of the request and the possible need to redact nondisclosable information.

Is SB 1421 limited to records of administrative investigations?

No. SB 1421 applies to “peace officer or custodial officer personnel records” and all other “records maintained by any state or local agency” relating to a covered incident. This includes, but is not limited to, all of the following:

• Investigative reports.
• Photographic, audio, and video evidence; transcripts or recording of interviews.
• Autopsy reports.
• Materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, or whether the officer’s action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take.
• Documents setting forth finding or recommended findings.
• Copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.

May an agency delay the disclosure of records relating to ongoing cases?

Possibly, depending on the nature of the case. SB 1421 sets out several circumstances in which agencies may delay the mandated disclosure of records.

Internal investigations into sexual assault or dishonesty

Records pertaining to alleged sexual assault or dishonesty by an officer are only subject to disclosure under SB 1421 if the allegations are sustained by a law enforcement or oversight agency. Under Penal Code section 832.8(b), “sustained” means “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.”  Thus, if the investigation is ongoing, or an appeal from discipline is pending, then the allegations have not been sustained and the records are not yet subject to disclosure.

Criminal investigations related to a use of force incident

During an active criminal investigation related to an officer-involved shooting or the use of force resulting in death or great bodily injury, an agency may delay disclosure for up to 60 days from the date the force occurred or until the district attorney determines whether to file criminal charges related to the use of force, whichever is sooner. The agency may extend the delay further if disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. If disclosure is delayed under one of these provisions, then the agency must comply with several requirements for specific written notice to the requesting party.

Criminal prosecutions related to a use of force incident

If criminal charges are filed related to a use of force incident, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial, or, if a plea of guilty or no contest is entered, the time to withdraw that plea has expired.

Administrative investigations related to a use of force incident

During an administrative investigation of a use of force incident, an agency may delay disclosure of records while the investigating agency determines whether the use of force violated a law or agency policy. The delay is limited to 180 days after the employing agency’s discovery of the use of force, or allegation of use of force, by a person authorized to initiate an investigation, or 30 days after the close of any criminal investigation related to the use of force, whichever is later.

May a public agency provide redacted versions of requested records?

Possibly, if the redactions are for one of a set of specific reasons outlined in SB 1421:

• To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.
• To preserve the anonymity of complainants and witnesses.
• To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about misconduct and serious use of force by peace officers and custodial officers.
• Where there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.
• Other circumstances not listed above, where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information. This language mirrors the catch-all provision of the CPRA, and courts will likely interpret the law similarly.

In particular, it is likely that many records within the scope of SB 1421 contain privileged documents, such as attorney-client communications. Given the high volume of anticipated records requests and the large amount of potentially disclosable files, responding agencies should take particular care in examining responsive records to avoid inadvertently giving away privileged materials.

SB 1421 dramatically increases public access to peace officer personnel records and other public records. But there are a number of issues left unclear and compliance with the new law will require a careful balancing of the public right to access public records against the privacy interests of officers, crime victims, complainants, witnesses and other third parties. Agencies that receive CPRA requests pursuant to SB 1421 should work closely with trusted legal counsel to navigate successfully between these competing interests when responding to the requests.