New Laws Affecting Public Access to Police Records: SB1421 And AB748
The Legislature has responded to public pressure calling for increased transparency into local policing by passing two new laws that mandate disclosure of records related to officer misconduct and use of force incidents. With Governor Brown’s signature, SB1421 and AB 748 will change how police departments respond to requests for certain personnel records and recordings of use of force incidents that were previously exempt from disclosure.
SB1421 – Peace Officer Personnel Files
Previously, a person seeking to inspect a peace officer’s personnel records, including records of citizen complaints against a peace officer, was required to file a Pitchess motion in court. SB 1421 carves an exception from that process for records related to serious use of force incidents and records related to a sustained finding of sexual assault or dishonesty. A law enforcement agency may redact the records to protect the personal data or information of an officer but may not redact the officer’s name or work-related information. The agency may also redact confidential medical, financial, or other information when there is a specific, articulable, and particularized reason to believe that disclosure of the information would place the officer or another person in danger.
For records related to use of force, a responding law enforcement agency may elect to withhold the record for up to 180 days during the administrative investigation into the incident or up to 60 days during a criminal investigation. Additional delay is permissible in limited circumstances when disclosure would interfere with the successful completion of an ongoing investigation. The burden will be on the withholding law enforcement agency to justify delay in disclosure.
AB748 – Audio and Video Recordings
Many law enforcement agencies withhold video and audio recordings of serious use of force incidents as investigatory records under Government Code Section 6254(f). AB748 adds an exception to the investigatory record exemption to now require disclosure of recordings related to a “critical incident.” Critical incident is defined as an incident involving the discharge of a firearm at a person by a peace officer or an incident in which the use of force resulted in death or great bodily injury. A law enforcement agency may redact the recordings if the agency demonstrates that the public interest in disclosure is outweighed by a person’s reasonable expectation of privacy. Agencies should consider using redaction technology to redact, blur, or distort the recording to protect the privacy interest while still allowing disclosure. An agency may only withhold a video or audio recording in its entirety if the agency demonstrates that the privacy interest cannot be adequately protected by use of redaction technology.
A law enforcement agency may withhold the release of a recording for 45 days if the agency determines the disclosure would substantially interfere with an active criminal or administrative investigation. As with the personnel records affected by SB1421, any delay beyond the initial time period will impose a significant burden on the agency to justify the delay. The law enforcement agency will be required to reevaluate the nondisclosure and state its justification to the requestor in writing at regular intervals.
Neither SB1421 or AB748 define the term “great bodily injury” which may cause some confusion among law enforcement agencies over which records are covered under the new laws. Great bodily injury is a term used several places in the California Penal Code to mean a “significant or substantial physical injury.” (Pen. Code §§ 195.5, 12022.7, and 16600.) What exactly constitutes a significant or substantial physical injury is a determination the law enforcement agency will need to make when deciding whether to release a particular record or not.
Additionally, the timeline for disclosure under each of the two new laws and the findings required are not identical. A law enforcement agency receiving a request for public records, especially a request related to a serious use of force incident, will likely have to make several different determinations under public records laws in a relatively short period of time.