As of January 1, a new law requires police and sheriffs’ departments and other California agencies employing law enforcement or custodial officers to provide public access on request to records relating to:

  • an officer’s firing a gun at anyone, whether it hits or misses, or subjecting anyone to fatal or greatly injurious force;
  • a confirmed finding by the employer or an oversight body that an officer attempted or committed a sex act with a civilian while on duty; or
  • a confirmed finding by the employer or an oversight body that an officer was dishonest in the reporting, investigation, or prosecution of a crime, or the reporting or investigation of misconduct by another officer, including a confirmed finding of “perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.”

Passage of this law by last year’s SB 1421 has led to little public discussion by those affected since then, but in recent weeks prompted at least one city—Inglewood—to authorize immediate destruction of all such records older than five years, and also motivated the San Bernardino County deputy sheriffs’ association to ask the state supreme court to declare the law to apply prospectively only—not retroactively. In reaction several press groups sought to intervene in that proceeding to argue the law’s retroactive effect.

Those legal actions expired Wednesday when the high court declined to get involved at the threshold, leaving the retroactivity issue to be contested in the trial and appellate courts before returning to it based on a developed record. But as reported on Thursday by Darwin BondGraham in the East Bay Express, the court asked the parties in an ongoing suit about disclosure of “Brady List” officers to criminal defendants to brief the question of whether and to what degree SB 1421 disclosure—to anyone who asks under the Public Records Act—moots much of the Brady List disclosure dispute.

Meanwhile the affected agencies include not only police and sheriff’s departments but all state and local agencies with investigators or agents charged with the enforcement of any law, (including those for the protection of public health, safety, consumer and financial welfare), the investigation of any reported or suspected violation of such laws, or the protection or security of any public utility, facility, transit, institution or resource—hundreds of specialized employee categories. Also affected are the employers of custodial officers, from county jailers to many if not most ranks in the Department of Corrections and Rehabilitation.

The documentation that is releasable in connection with incidents presumed accessible as stated in SB 1421 includes

  • 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.

SB 1421 provides that the only permitted redactions from these records under SB 1421 are

  • 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
  • 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.

Perhaps the most officer-protective provision of the new law states that no disclosure is required if the complaint is “frivolous”, i.e. “totally and completely without merit or for the sole purpose of harassing” the officer, or is determined to be unfounded, i.e. where “an investigation clearly establishes that the allegation is not true.”