California Agencies Should Expect to Receive Requests in All New Categories
New police records rules mandating additional disclosures of personnel records will go into effect next year with SB 16, which builds on the landmark SB 1421. The new law adds numerous categories to the four existing disclosure mandates, and every California law enforcement agency should expect to receive requests in each new category. Some of SB 16’s provisions will take effect immediately, while others won’t take effect until January 1, 2023. Immediate Implementation Beginning January 1, 2022, the following new procedural and substantive rules will apply to the retention and production of records currently mandated for disclosure under Penal Code Section 832.7:
- Records with no sustained finding of misconduct must be retained for at least 5 years and records related to sustained misconduct must be retained for a minimum of 15 years.
- Records relating to an incomplete investigation must be released if an officer resigned during the investigation.
- Whistleblowers and victims will be added to the list of persons whose identities are required to remain confidential.
- Records shall be provided at the “earliest possible time” and no later than 45 days from the date of a request for their disclosure, unless the law specifically allows more time to respond.
- An agency may charge only the direct cost of duplication for the production of these records, in line with the Public Records Act, and may not charge for searching or redacting records.
- Attorney-client privilege will not prohibit the disclosure of factual information provided by the public entity to its attorney or factual information discovered in any investigation conducted by, or on behalf of, the public entity’s attorney. Additionally, the privilege will not cover attorney billing records unless the records relate to a legal consultation between the public entity and its attorney in active and ongoing litigation.
- A public agency hiring a peace officer must review any files for Section 832.7 disclosure before hiring the officer.
Delayed Implementation SB 16 also adds four new categories of sustained findings of misconduct that trigger disclosure. The new categories of disclosure are:
- a sustained finding involving a complaint that alleges unreasonable or excessive force;
- a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive;
- a sustained finding made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings and gestures involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status; and,
- a sustained finding made by any law enforcement agency or oversight agency that the peace officer made an unlawful arrest or conducted an unlawful search.
The bill contains a grace period for review and production of qualifying acts that occur before January 1, 2022. Implementation for backlogged records, i.e. the newly disclosable records related to acts occurring before 2022, is delayed under January 1, 2023. For all categories of disclosure—including the new categories—records of incidents that occur on or after January 1, 2022 must be produced within the time constraints established in Section 832.7. This means, for example, that an act that occurs on Dec. 31, 2021 and results in a sustained finding of excessive use of force is not mandated to be disclosed until January 1, 2023. However, an act that occurs on January 1, 2022 and results in a sustained finding of excessive use of force has no “safe harbor” delay. Therefore the January 1, 2022 act must be handled under the same timing provisions as an incident involving the discharge of a firearm, an original SB 1421 category. In that case, there is now, with SB 16, a presumption that disclosure must “at the earliest possible time and no later than 45 days from the date of a request for their disclosure” unless some other provision in Section 832.7 permits delay, for example, under Section 832.7(b)(8), due to an active criminal or administrative investigation. Questions and Preparation There is some ambiguity in the drafting of SB 16’s delayed implementation provisions. Given this ambiguity and the extensive changes that SB 16 brings, agencies need to immediately begin to prepare for implementation.