Peace Officer Records – Internal and Administrative Investigations
As of January 1, 2019, certain internal and administrative investigations of peace officers will no longer be confidential and must be produced pursuant to the Public Records Act. In passing Senate Bill 1421, the California Legislature stated:
“Peace officers help to provide one of our state’s most fundamental government services. To empower peace officers to fulfill their mission, the people of California vest them with extraordinary authority — the powers to detain, search, arrest, and use deadly force. Our society depends on peace officers’ faithful exercise of that authority. Misuse of that authority can lead to grave constitutional violations, harms to liberty and the inherent sanctity of human life, as well as significant public unrest.
The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.”
Before SB 1421, the California Public Records Act required a state or local agency, as defined, to make public records available for inspection, subject to certain exceptions. Existing law required any peace officer or custodial officer personnel records, and any records maintained by any state or local agency relating to complaints against peace officers and custodial officers, or any information obtained from these records, to be confidential and prohibited the disclosure of those records in any criminal or civil proceeding, except by discovery. Existing law described exceptions to this requirement for investigations or proceedings concerning the conduct of peace officers or custodial officers, and for an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office. But now, SB 1421, by amending Penal Code section 832.7, requires certain peace officer or custodial officer personnel records and records relating to specified incidents, complaints, and investigations involving peace officers and custodial officers to be made available for public inspection pursuant to the California Public Records Act.
That means simply that certain internal investigations are no longer confidential. That further means that, upon request, those complete investigative and administrative files must be produced. The categories of investigations that are no longer confidential are the following:
An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
An incident in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury.
Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.
Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.
(PC 832.7(b)(1)(A), (B), and (C).)
The records that are now required to be produced, with respect to the above-listed categories of incidents are comprehensive:
Records that shall be released pursuant to this subdivision include all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all 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 findings or recommended findings; and 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.
The amendments also create some timing requirements. All disclosures are, of course, subject to the normal PRA requirements (10 calendar days – Govt. Code section 6253(c)), but there are some exceptions. During an active criminal investigation, disclosure may be delayed for up to 60 days from the date the use of force occurred or until the district attorney determines whether to file criminal charges related to the use of force, whichever occurs sooner. But, if an agency delays disclosure then the agency shall provide, in writing, the specific basis for the agency’s determination that the interest in delaying disclosure clearly outweighs the public interest in disclosure. This writing shall include the estimated date for disclosure of the withheld information. After 60 days from the use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against an officer who used the force. But if an agency delays disclosure in this way, the agency shall, at 180-day intervals, provide, in writing, the specific basis for the agency’s determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. The writing shall include the estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner. (PC 832.7(7)(A)(i)and(ii).)
With respect to an administrative investigation, the agency may delay the disclosure of records or information until the investigating agency determines whether the use of force violated a law or agency policy, but no longer than 180 days after the date of 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 peace officer or custodial officer’s use of force, whichever is later.
There are a few other built-in exceptions, such as when disclosure would impact a privilege or compromise a pending investigation, and if criminal charges are filed related to the incident in which force was used, 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 the plea. (PC 832.7(7)(A)(iv) and (B).)
There are certain other caveats and detailed requirements, but police agencies must become aware of the new transparency requirements and realize that internal and administrative investigations in the enumerated categories are now no longer confidential and, in essence, the entire investigations must be produced upon request. This is a significant change to the laws we are used to, and upon which officers and departments rely upon for confidentiality of peace officer records.
Video and Audio Recordings
AB 747 amends Govt. Code section 6254(f) to affect the release of video and audio recordings of certain “critical incidents” that were previously exempt from disclosure pursuant to a Public Records Act request. Commencing July 1, 2019, the amendments will allow a video or audio recording that relates to a critical incident, as specified below, to be withheld for 45 calendar days ONLY if disclosure would substantially interfere with an active investigation, subject to certain extensions. The amendments allow the recording to be withheld only if the public interest in withholding video or audio recording clearly outweighs the public interest in disclosure because the release of the recording would, based on the facts and circumstances depicted in the recording, violate the reasonable expectation of privacy of a subject depicted in the recording, in which case the amendments allow the recording to be redacted to protect that interest. Otherwise, video and audio recordings must be produced. If the agency demonstrates that the reasonable expectation of privacy of a subject depicted in the recording cannot adequately be protected through redaction, the recording must be promptly disclosed to a subject of the recording, his or her parent, guardian, or representative, as applicable, or his or her heir, beneficiary, immediate family member, or authorized legal representative, if deceased.
A video or audio recording relates to a critical incident if it depicts an incident involving the discharge of a firearm at a person by a peace officer or custodial officer or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury. (GC 6254(f)(4)(C).)
Generally, the agency cannot delay the release longer than 45 days after the agency knew, or reasonably should have known, about the incident. If the release would substantially interfere with active criminal or administrative investigations, then the agency can continue to delay release up to one year. After that, the agency must demonstrate, by clear and convincing evidence, that the disclosure would actually substantially interfere with such ongoing investigations. The agency must also reassess this determination every 30 days. If the basis for withholding release is resolved, then the recording shall be disclosed promptly. Certain redactions may be made to protect some expectations of privacy, but the redactions shall not interfere with the viewer’s ability to fully, completely, and accurately comprehend events capture in the recording. In certain situations, the agency can withhold release if redaction cannot protect the reasonable expectation of privacy and that expectation outweighs public interest in disclosure. (GC 6254(f)(4)(B).) But it still must be released to the subject of the recording whose privacy is to be protected, or that person’s parent/legal guardian, or heir, beneficiary, designated immediate family member, or authorized legal representative of deceased subject whose privacy is to be protected.
Body worn camera recordings, dash cam footage, building surveillance recordings, and audio recordings of any type come within the scope of these changes. Whenever an officer discharges her/his firearm at anyone or uses force against a person resulting in death or great bodily injury, upon request, subject to certain enumerated exceptions, some of which are described above, the video and audio recordings must be produced within 10 calendar days of a request, unless the agency delays, as appropriate for 45 days. Agencies should become familiar with the changes to Government Code section 6254(f)(4) immediately and amend procedures accordingly to be compliant with the new disclosure laws.
Mitch Dean can be reached at 858-755-5666, ext. 7221, or firstname.lastname@example.org