Transparency in civic policing is critical for making sure that laws are enforced in a way that is admissible by the citizens. Secrecy in policy enforcement leads to illegal acts and the assumption, shared by both community and law enforcement so often, that the general public's and law enforcer's goals are not always the same. California has taken significant steps in past years to improve regulations that formerly enabled police secrecy. Enacting laws, nevertheless, is insufficient for change. To be "accountable and transparent," a law enforcement agency must uphold the policies that regulate its actions. In this blog, we’ll look at Senate Bill 1421 and Senate Bill 16, and how they have granted the public access to information that was once regarded as confidential.
Police Transparency and Accountability
One of the pillars of American democracy is the ability of the general public to know about the choices, laws, and actions performed by all sectors of the federal government. This exposure is necessary for free media, well-informed voters, as well as an awareness of laws that work and those that do not.
Transparency policies at the state and federal levels, for instance, are critical to journalists' and researchers' abilities to examine government operations and raise public awareness. These regulations also provide voters with access to information and documents that allow them to determine whether to retain, change, or abolish laws and bureaucratic institutions depending on their actual performance.
Transparency in law enforcement agencies is especially crucial since the agencies have a lot of discretionary authority and rely heavily on the public's trust. If law enforcement officers engage in misconduct or do nothing to protect people from harm, then the people have to be able to identify it and figure out how to do better policing. Furthermore, to guarantee that all citizens are protected equally, law enforcement authorities must be held accountable for their actions and practices that unfairly affect specific groups of people.
In California, for instance, county sheriffs provide concealed carry permits to handgun owners, yet these authorities rarely disclose the rates at which they grant these permits to civilians. However, by making petitions under the California Public Records Act, investigators can gain access to these records and establish whether there are particular jurisdictions where acquiring a license is more challenging than others, and also study the likelihood that these quantitative inequalities lead to consequences that significantly vary across racial and class lines and the density of the population.
Transparency regulations coexist with the First Amendment as a necessary component of a well-informed democracy. The power to "ask the authorities for a redress of problems" is dependent on our ability to identify what concerns we may have.
The Right to Know Act: California Senate Bill 1421
Former Governor of California, Jerry Brown approved Senate Bill 1421 in September 2018, altering parts of the California Penal Code to provide the public access to some custodial and peace officer (generally, peace officers) records through a California Public Records Act (PRA) petition. This was a significant break from the status quo, which could have substantial implications for policing, administration, and records keeping.
Before the adoption of Senate Bill 1421, the majority of peace officers' personnel files were regarded as confidential and could only be released under rare circumstances. IAs a matter of fact, California was regarded as among the most unforthcoming states in the country whenever it comes to the release of peace officers and disciplinary files.
An entity seeking the release of peace officers' personnel records in a civil or criminal case had to undergo the Pitchess motion protocol.
The California Supreme Court ruled in Pitchess that an accused charged with violence on a law enforcement officer is eligible to disclose certain inquiry documents to indicate if the police officer had a record of using unreasonable force and also if the accused responded in self-defense. To formalize "the rights and protocols" for a Pitchess motion, the California Legislature passed Penal Code Sections 832.7 and 832.8, and also Evidence Code Sections 1043 and 1045, in 1978.
A two-step procedure could be used to acquire peace officer files under this legislative provision.
During the first stage, the requester has to file a petition to the court, demonstrating good cause for the disclosure of the files or details requested as well as relevance to the specific topic of the ongoing action.
The second step begins if a court determines that the threshold concerns of good cause and relevance have been met. If such is the case, a court will schedule an in-camera proceeding to assess the relevant records and decide what details will be released.
Peace officer work records are now disclosable in reaction to a Public Records Act request, starting from January 1, 2019, with the passing of Senate Bill 1421, if the documents about the usage of force, substantiated accusations of police sexual assault, or proven allegations of peace officer dishonesty. There will be no call for underlying litigation, Pitchess motions, or an in-camera hearing.
Pitchess motions, despite this change in the law underpinning law enforcement information, will not go away with the passing of SB 1421. Pitchess motions are regularly more extensive than those required to be released under SB 1421.
What is The California Public Records Act?
The Public Records Act is one of the two sunshine statutes in California, introduced in 1968 to keep government agencies answerable by enabling the general public to see and duplicate information in the agency's possession. This includes law enforcement agencies.
According to the Public Records Act, "every citizen in the state of California has a fundamental and indispensable right to access information regarding the execution of the citizen's business."
And besides, the PRA's goal was to make the government's actions as transparent as possible. The California Legislature determined that public records release was vital to maintain government answerable to the public, and the provision was eventually incorporated in the state's constitution.
The PRA gives people a comprehensive right to access information, and when the state refuses to release information and is contested, the courts incline in the favor of releasing information to the public.
The PRA contains a contradiction between the people's ability to obtain records with the statute's recognition of privacy rights. Acknowledging the conflict between the two categories of rights, Congress added several exceptions to the legislation, including the exception for personnel records.
Other exceptions in this Government Code section include the health information exemption, the ongoing lawsuit exemption, the voter details exemption, the taxpayer details exemption, the library record exception, as well as the civil workers' personal details exemption.
Finally, when no other exception exists, the PRA allows for a "catchall exception," which can be used if the organization can show that the interests of the public provided by not releasing the information significantly surpass the interests of the public provided by the release of the information.
Although the agency has made a strong case, courts will uphold the exception if there is a compelling reason to safeguard confidentiality.
California SB 1421
SB 1421 amends Penal Code 832.7, effective January 1, 2019, to enable the disclosure of documents relating to three kinds of occasions:
- The application of force
- Substantiated allegations of sexual assault; and
- Substantiated allegations of dishonesty
The new Provision 832.7 preserves the status quo by preserving the clause that emphasizes the confidentiality of peace officer employment records. However, Section 832.7(b), introduces several exemptions to this broad rule. In the case of the application of force, Section 832.7(b) makes documents about the employment of force by peace officers public under the following conditions:
Any record about the inquiry of the reports, or the results of either of the following:
- An event in which a custodial or a peace officer fires a gun at someone
- An event whereby a peace or custodial officer used excessive force against someone, resulting in death or serious bodily harm
Section 832.7 further authorizes records relating to a substantiated determination that a law enforcement official sexually assaulted a civilian to be made public. Both "sexual assault" and "civilian" are defined differently in this clause.
"Sexual assault" refers to a wide range of actions, including the forceful or attempted commencement of a sexual act in the pretext of authority by a peace officer. The interpretation of sexual assault is so wide that it includes even a law enforcement officer's offer to a civilian to engage in a sexual act. For a report of a sexual assault with a civilian to be disclosed, the assault victim has to be a civilian who is not employed by the peace officer's organization.
Records relating to a victim of sexual assault who is a youth organization member linked with the law enforcement officer's organization, on the other hand, will be made public.
The last broad class of peace or custodial officer records which can be accessed through a PRA petition under SB 1421 is records relating to substantiated findings of dishonesty. Penal Code 832.8(b) clarifies “sustained” as “an ultimate determination by an investigating organization, commission, panel, a hearing officer, or an arbitrator after an investigation as well as the opportunity for an institutional petition that the acts of the peace or custodial officer had been discovered to contravene rules or department policies.”
If a peace or custodial officer is found to have been false when reporting, investigating, or prosecuting an offense or the wrongdoing of an individual or another peace or custodial officer, any records relevant to that incidence of dishonesty are subject to a PRA petition. The three occurrences are the only ones that warrant the release of records under the Public Records Act.
When one of these incidents occurs, the PRA allows for the disclosure of a wide range of records relating to that occurrence.
If the information sought in a PRA request does not pertain to either of these three incidents, they are not subject to SB 1421 but could be subject to disclosure through other ways, like a Pitchess Motion.
Even though SB 1421 only went into operation in 2019, its effects will be seen in the coming years. Public institutions should create disclosure protocols and practices for ambiguous terms, as well as a proactive method for recognizing and collecting possibly responsive records, to be ready for a rise in PRA pleas for peace and custodial officer records.
California Senate Bill 16
SB 16, which expands on Senate Bill 1421, was enacted to update police records policies mandating more releases of personnel files. This bill expanded on the three present disclosure requirements under Senate Bill 1421, and each law enforcement agency in California should anticipate requests in every proposed category.
SB 16 is part of a larger push to improve law enforcement transparency. The law was passed in 2018 and it changed the nature of peace officer work information from confidential to the public. SB 16 seeks to build on that shift by making more peace officer information available in court and available to the general public and also mandating agencies to evaluate a police officer's personnel records before hiring him or her.
Rules that Were Implemented Immediately
Starting January 1, 2022, the following new substantive and procedural provisions became applicable to the preservation and disclosure of information as per California Penal Code 832.7:
- Files relating to sustained wrongdoing must be held for a minimum of 5 years, and records relating to no sustained findings of wrongdoing must be held for at least 15 years
- If a peace officer retired as the investigations were being carried out, records relevant to that investigation should be shared
- Victims and whistleblowers will be included in the list of those whose names must be concealed
- Except if the legislation specifically permits for extra time, records must be disclosed "as soon as possible" and no further than 45 days following the date when the request for disclosure was submitted
- According to the Public Records Act, a law enforcement agency can only ask for payment for the actual cost of copying when producing the information, and not for researching or redacting information
- The attorney-client confidentiality will not prevent the revelation of factual information submitted by the government body to its lawyer or facts obtained during an investigation performed by or for the public entity's lawyer. In addition, unless the data pertains to a legal counsel between the public body and its counsel in ongoing and existing litigation, the privileges will not apply to lawyer billing information
- Before recruiting a police officer, a public entity must examine any records for Section 832.7 disclosures
SB 16 additionally establishes four new types of sustained misconduct findings that trigger disclosure. However, these provisions will not come into effect until 2023. The following are the additional disclosure categories:
- A sustained judgment in a petition alleging excessive or unjustified force
- A sustained conclusion that a peace officer did not intervene when another officer used indisputably excessive or unjustified force
- A sustained discovery by any agency or supervisory agency that a custodial or law enforcement officer engaged in activities involving discrimination and prejudice against someone on the grounds of religion, race, national origin, color, ancestry, mental disability, physical disability, medical condition, marital status, genetic information, sex, gender, age, gender identity, sexual orientation, gender expression, veteran and military status
- A sustained discovery by an oversight or law enforcement agency that the police officer committed an improper arrest or carried out an unwarranted search
Senate Bill 16 included a time limit for reviewing and producing eligible acts that took place before the 1st of January, 2022. Backlogged records, that is, newly publicly disclosed records relating to actions that happened before 2022, will not be implemented until the 1st of January, 2023. Records of occurrences that occurred on or following January 1, 2022, had to be made within the time restrictions set in Section 832.7 for every form of disclosure, particularly the supplemental categories.
This indicates that an offense committed on December 31, 2021, that resulted in a sustained determination of police misconduct will not be required to be revealed until the 1st of January, 2023. However, there isn't any "safe harbor" hold-up for an action that occurred on January 1, 2022, and resulted in a sustained determination of police misconduct.
As a result, the January 1, 2022 action must be dealt with similarly as an occurrence that involves the firing of a weapon, which was originally an SB 1421 classification. In this case, SB 16 creates an assumption that release of information must occur "as soon as reasonably possible but not any further than 45 days from the day of a plea for disclosure," unless another clause in Section 832.7 allows for a delay, because of an ongoing administrative or criminal investigation.
Types of Records the Public Still Has No Access to
The public can only view information regarding police wrongdoing that falls into one of the categories indicated above: sexual assault, significant use of force, or investigation dishonesty. Other forms of police wrongdoing are still being kept from the public.
Also, even if you can obtain investigation information for significant uses of force irrespective of whether the law enforcement agency found that the usage of force was justified, the public can only obtain information for accusations of sexual assault or job-related deceit if the authority found that the law enforcement officer was subject to disciplinary action in infringement of rules and the moment to appeal what the investigation found has passed. Additionally, the agency also has the authority to revise or suppress certain sensitive information, such as the identities of witnesses or even the police officer's details.
The phrase "record" should encompass all documentation about the event, along with any agency statements, recordings of its inquiries, photographic as well as video footage, and also the law enforcement agency's disciplinary judgments.
You can seek a specific kind of record, such as a disciplinary ruling or even a report from an autopsy. You can also request specific forms of records. This could enable you to receive an answer to the appeal much faster. Agencies must also collaborate with you to locate materials that are relevant to your requests.
Submitting a Request for Information
To file a petition, submit it to the law enforcement agency by letter, email, or fax. Certain agencies designate specific divisions or individuals whose role it is to reply to Public Records Act requests on their websites or by phone, so visit their websites or contact them for additional information. Always retain a duplicate of your petition so you can prove when and what you filed.
You can use an Incident-Based Request Template to obtain records connected to a specific occurrence, such as the investigation records for a particular police shooting, a certain arrest in which you feel a police officer may have submitted a falsified report, or to determine if a sexual assault allegation against a law enforcement officer was substantiated.
You can also use an Officer Based Request if you wish to uncover any public information of wrongdoing involving a certain officer or if they had been implicated in previous severe usage of force.
How Much Does it Cost to Make a Request?
An agency can only charge for any "direct costs" of copying information or the costs for creating specific documents when you request it to make a document that the agency does not readily have.
In your original request, you must always request the law enforcement agency to waive the costs, but they're not obligated to do just that. You could also check the records by visiting the institution during normal office hours, which is free.
What Should You Do If the Police Department Does Not Respond?
Each agency is compelled by the law to reply and release relevant, non-confidential information that they would not be able to withhold. When they have information that they have to publicize and don't, they will be in contravention of the laws. You should contact the organization in writing first and then proceed to seek the records. If they do not answer again, you can bring a case in the California Superior Court to assert your entitlement to these details. The agency may be forced to reimburse your attorneys' costs should you succeed in your case.
Find a Sacramento Criminal Defense Attorney Near Me
Launching an investigation into a peace officer's misconduct, or trying to acquire evidence for the counsel to present during trial, could be complicated and time-consuming. Luckily, the police transparency laws offer effective ways for the defense counsel to conduct investigations. At the Foos Gavin Law Firm, we can counsel you about the chances of obtaining law enforcement personnel records as well as the methods you need to follow to ensure you obtain the details you need. Call us today at 916-779-3500 to set up an appointment with us.