Amended in Senate April 21, 2016

Senate Bill No. 1286

Introduced by Senator Leno

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(Coauthors: Senators Mitchell and Moorlach)

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February 19, 2016

An act to amend Sections 1043 and 1045 of the Evidence Code, begin delete to amend Section 3304.5 of the Government Code, end delete and to amend Sections 832.5 and 832.7 of the Penal Code, relating to peace officers.

LEGISLATIVE COUNSEL’S DIGEST

SB 1286, as amended, Leno. Peace officers: records of misconduct.

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(1) The Public Safety Officers Procedural Bill of Rights Act provides a set of rights and procedural protections to specified public safety officers. That act requires an administrative appeal instituted by a public agency under the act to be conducted in conformance with rules and procedures adopted by the local public agency. Existing law also establishes the Administrative Procedure Act, and requires enumerated state agencies to hold hearings under that act that are conducted by administrative law judges.

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This bill would, notwithstanding any confidentiality afforded the personnel records of peace officers or custodial officers, authorize a municipality or local public agency that employs peace officers or custodial officers to hear and adjudicate administrative appeals, or to empower a body to hear and adjudicate those appeals, in proceedings that are open to the public and in which some or all documents filed are available for public inspection.

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(2)

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begin insert (1) end insert  Existing law requires a department or agency that employs peace officers to establish a procedure to investigate complaints by members of the public against those officers. Existing law authorizes a department or agency that employs custodial officers to establish a similar procedure for its officers. Existing law establishes retention requirements and access privileges, as specified, for those complaints and related reports or findings. Existing law requires the department or agency to provide written notification to the complaining party of the disposition of a complaint made pursuant to those provisions within 30 days of the disposition.

This bill would require that notification to include, at a minimum, the charges framed in response to the complaint, the agency’s disposition with respect to each of those charges, any factual findings on which the agency based its dispositions, and any discipline imposed or corrective action taken. By increasing the duties of local officials, the bill would impose a state-mandated local program.

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(3)

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begin insert (2) end insert  The California Public Records Act requires a state or local agency, as defined, to make public records available for inspection, subject to certain exceptions. Existing law provides that peace officer or custodial officer personnel records, as defined, and records maintained by any state or local agency relating to complaints against peace officers and custodial officers, or information obtained from these records, are confidential and prohibits the disclosure of those records in any criminal or civil proceeding except by discovery. Existing law describes exceptions to this policy for investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.

This bill would expand the scope of the exceptions to apply to, among other things, investigations or proceedings conducted by civilian review agencies, inspectors general, personnel boards, police commissions, civil service commissions, city councils, boards of supervisors, or any entities empowered to investigate peace officer misconduct on behalf of an agency, conduct audits of peace officer discipline on behalf of an agency, adjudicate complaints against peace officers or custodial officers, hear administrative appeals, or set policies or funding for the law enforcement agency. The bill would also require an entity described in those exceptions to comply with specified confidentiality provisions.

This bill would require, notwithstanding any other law, certain peace officer or custodial officer personnel records and records relating to complaints against peace officers and custodial officers to be available for public inspection pursuant to the California Public Records Act. The bill would provide that this information includes but is not limited to, the framing allegation or complaint, the agency’s full investigation file, any evidence gathered, and any findings or recommended findings, discipline, or corrective action taken. The bill would require records disclosed pursuant to this provision to be redacted only 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 officers and custodial officers, to preserve the anonymity of complainants and witnesses, or to protect confidential medical, financial, or other information in which disclosure would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about misconduct by peace officers and custodial officers, or begin delete where end delete begin insert if end insert there is a specific, particularized reason to believe that disclosure would pose a significant danger to the physical safety of the peace officer, custodial officer, or others. begin insert The bill would authorize an agency to withhold a record that is disclosable pursuant to these provisions during an investigation into the use of force until the peace officer’s employing agency determines whether the use of force violated a law or agency policy end insert begin insert or until the district attorney with jurisdiction over the use of force determines whether to file criminal charges for the use of force, whichever is later, and would prohibit an agency from withholding those records for longer than 180 days from the date of the use of force. end insert

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(4)

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begin insert (3) end insert  Existing law establishes discovery procedures for obtaining peace officer and custodial officer personnel files and files relating to complaints against peace officers and custodial officers.

This bill would specify that those provisions do not bar or limit access in any proceeding to peace officer or custodial officer personnel records or records relating to complaints against peace officers and custodial officers, and would provide that those provisions do not require a party to a proceeding pending in a court or administrative agency to seek records through alternate means before filing a motion pursuant to the discovery provisions described above.

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(5)

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begin insert (4) end insert  The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

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(6)

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begin insert (5) end insert  The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) Peace officers help provide one of our state’s most
fundamental government services -- keeping our communities
safe. These working men and women risk their lives daily in order
to protect the people of California. The public greatly appreciates
peace officers’ hard work and dedication to public safety. The
good names of these public servants should not be tarnished by
the actions of those amongst their ranks who may engage in
wrongdoing.

(b) 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. Its misuse
can lead to grave constitutional violations, harms to liberty, and
the inherent sanctity of human life, as well as significant public
unrest.

(c) 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.

(d) The public has a strong, compelling interest in law
enforcement transparency because it is essential to having a just
and democratic society.

SEC. 2.  

Section 1043 of the Evidence Code is amended to read:

1043.  

(a) If discovery or disclosure is sought of peace officer
or custodial officer personnel records or records maintained
pursuant to Section 832.5 of the Penal Code and for which that
section or Section 832.7 of the Penal Code bar or limit disclosure,
or information from those records, the party seeking the discovery
or disclosure shall file a written motion with the appropriate court
or administrative body upon written notice to the governmental
agency that has custody and control of the records. The written
notice shall be given at the times prescribed by subdivision (b) of
Section 1005 of the Code of Civil Procedure. Upon receipt of the
notice the governmental agency served shall immediately notify
the individual whose records are sought.

(b) The motion shall include all of the following:

(1) Identification of the proceeding in which discovery or
disclosure is sought, the party seeking discovery or disclosure, the
peace officer or custodial officer whose records are sought, the
governmental agency that has custody and control of the records,
and the time and place at which the motion for discovery or
disclosure shall be heard.

(2) A description of the type of records or information sought.

(3) Affidavits showing good cause for the discovery or
disclosure sought, setting forth the materiality thereof to the subject
matter involved in the pending litigation and stating upon
reasonable belief that the governmental agency identified has the
records or information from the records.

(c) A hearing upon a motion for discovery or disclosure shall
not be held without full compliance with the notice provisions of
this section except upon a showing by the moving party of good
cause for noncompliance, or upon a waiver of the hearing by the
governmental agency identified as having the records.

(d) A party to a proceeding pending in a court or administrative
agency is not required to seek records through alternate means
before filing a motion pursuant to this section.

SEC. 3.  

Section 1045 of the Evidence Code is amended to read:

1045.  

(a) This article does not affect the right of access to
records of complaints, or investigations of complaints, or discipline
imposed as a result of those investigations, concerning an event
or transaction in which the peace officer or custodial officer, as
defined in Section 831.5 of the Penal Code, participated, or which
he or she perceived, and pertaining to the manner in which he or
she performed his or her duties, provided that information is
relevant to the subject matter involved in the pending litigation.

(b) In determining relevance, the court shall examine the
information in chambers in conformity with Section 915, and shall
exclude all of the following from disclosure:

(1) Information consisting of complaints concerning conduct
occurring more than five years before the event or transaction that
is the subject of the litigation in aid of which discovery or
disclosure is sought.

(2) In any criminal proceeding the conclusions of any officer
investigating a complaint filed pursuant to Section 832.5 of the
Penal Code.

(3) Facts sought to be disclosed that are so remote as to make
disclosure of little or no practical benefit.

(c) In determining relevance where the issue in litigation
concerns the policies or pattern of conduct of the employing
agency, the court shall consider whether the information sought
may be obtained from other records maintained by the employing
agency in the regular course of agency business that would not
necessitate the disclosure of individual personnel records.

(d) Upon motion seasonably made by the governmental agency
that has custody or control of the records to be examined or by the
officer whose records are sought, and upon good cause showing
the necessity thereof, the court may make any order that justice
requires to protect the officer or agency from unnecessary
annoyance, embarrassment, or oppression.

(e) The court shall, in any case or proceeding permitting the
disclosure or discovery of any peace officer or custodial officer
records requested pursuant to Section 1043, order that the records
disclosed or discovered may not be used for any purpose other
than a court proceeding pursuant to applicable law.

(f) This article does not bar or limit access in any proceeding
to peace officer or custodial officer personnel records or records
maintained pursuant to Section 832.5 of the Penal Code for which
Sections 832.5 or 832.7 of the Penal Code do not prohibit
disclosure.

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SEC. 4.  

Section 3304.5 of the Government Code is amended
to read:

3304.5.  

(a) An administrative appeal instituted by a public
safety officer under this chapter shall be conducted in conformance
with rules and procedures adopted by the local public agency.

(b) Notwithstanding any confidentiality given to the personnel
records of peace officers or custodial officers under this chapter
or under the provisions governing regulation of peace officers
contained in Chapter 4.5 (commencing with Section 830) of Title
3 of Part 2 of the Penal Code, a municipality or local public agency
that employs peace officers may hear and adjudicate an
administrative appeal under this chapter, or the municipality or
local public agency may empower a body to hear and adjudicate
those appeals, in proceedings that are open to the public and in
which some or all documents filed are available for public
inspection.

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Section 832.5 of the Penal Code is amended to read:

832.5.  

(a) (1) A department or agency in this state that
employs peace officers shall establish a procedure to investigate
complaints by members of the public against the personnel of these
departments or agencies, and shall make a written description of
the procedure available to the public.

(2) A department or agency that employs custodial officers, as
defined in Section 831.5, may establish a procedure to investigate
complaints by members of the public against those custodial
officers employed by these departments or agencies, provided
however, that any procedure so established shall comply with the
provisions of this section and with the provisions of Section 832.7.

(b) Complaints and any reports or findings relating to these
complaints shall be retained for a period of at least five years. All
complaints retained pursuant to this subdivision may be maintained
either in the peace officer’s or custodial officer’s general personnel
file or in a separate file designated by the department or agency
as provided by department or agency policy, in accordance with
all applicable requirements of law. However, prior to any official
determination regarding promotion, transfer, or disciplinary action
by an officer’s employing department or agency, the complaints
described by subdivision (c) shall be removed from the officer’s
general personnel file and placed in begin insert a end insert separate file designated by
the department or agency, in accordance with all applicable
requirements of law.

(c) Complaints by members of the public that are determined
by the peace officer’s or custodial officer’s employing agency to
be frivolous, as defined in Section 128.5 of the Code of Civil
Procedure, or unfounded or exonerated, or any portion of a
complaint that is determined to be frivolous, unfounded, or
exonerated, shall not be maintained in that officer’s general
personnel file. However, these complaints shall be retained in
other, separate files that shall be deemed personnel records for
purposes of the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and Section 1043 of the Evidence Code.

(1) Management of the peace officer’s or custodial officer’s
employing agency shall have access to the files described in this
subdivision.

(2) Management of the peace officer’s or custodial officer’s
employing agency shall not use the complaints contained in these
separate files for punitive or promotional purposes except as
permitted by subdivision (f) of Section 3304 of the Government
Code.

(3) Management of the peace officer’s or custodial officer’s
employing agency may identify any officer who is subject to the
complaints maintained in these files that require counseling or
additional training. However, if a complaint is removed from the
officer’s personnel file, any reference in the personnel file to the
complaint or to a separate file shall be deleted.

(d) As used in this section and Section 832.7, the following
definitions apply:

(1) “Exonerated” means that the investigation clearly established
that the actions of the peace officer or custodial officer that formed
the basis for the complaint are not violations of law or department
policy.

(2) “General personnel file” means the file maintained by the
agency containing the primary records specific to each peace
officer’s or custodial officer’s employment, including evaluations,
assignments, status changes, and imposed discipline.

(3) “Sustained” means that the investigation disclosed sufficient
evidence to prove, by a preponderance of evidence, the truth of
the allegation in the complaint or that the actions of the peace
officer or custodial officer violated law or department policy.

(4) “Unfounded” means that the investigation clearly established
that the allegation is not true.

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(e) (1) A municipality, county, or agency that employs peace
officers may do both of the following:

(A) Hold hearings to hear complaints by members of the public,
consider evidence, and adjudicate the complaints or recommend
adjudications.

(B) Establish a body to hold the hearings described in
subparagraph (A).

(2) Notwithstanding any confidentiality given to the general
personnel file or other personnel records of peace officers or
custodial officers, the hearings described in paragraph (1) may be
open to the public.

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Section 832.7 of the Penal Code is amended to read:

832.7.  

(a) Except as set forth in subdivision (c), peace officer
or custodial officer personnel records and records maintained by
any state or local agency pursuant to Section 832.5, or information
obtained from these records, are confidential and shall not be
disclosed in any criminal or civil proceeding except by discovery
pursuant to Sections 1043 and 1046 of the Evidence Code.

(b) (1) This section shall not apply to investigations or
proceedings concerning the conduct of peace officers or custodial
officers, or an agency or department that employs those officers,
conducted by a grand jury, a district attorney’s office, the Attorney
General’s office, civilian review agencies, inspectors general,
personnel boards, police commissions, civil service commissions,
city councils, boards of supervisors, or any entities empowered to
investigate peace officer misconduct on behalf of an agency,
conduct audits of peace officer discipline on behalf of an agency,
adjudicate complaints against peace officers or custodial officers,
hear administrative appeals pursuant to Section 3304.5 of the
Government Code, or set policies or funding for the law
enforcement agency.

(2) An entity allowed access to the personnel and complaint
records of peace officers or custodial officers under this subdivision
shall comply with the confidentiality provisions of this section.

(c) (1) Notwithstanding any other law, all of the following
peace officer or custodial officer personnel records and records
maintained by any state or local agency pursuant to Section 832.5
shall be available for public inspection pursuant to the California
Public Records Act (Chapter 3.5 (commencing with Section 6250)
of Division 7 of Title 1 of the Government Code):

(A) A record related to the investigation or assessment of any
use of force by a peace officer that is likely to or does cause death
or serious bodily injury, begin delete including end delete begin insert including, end insert but not limited to,
the discharge of a firearm, use of an electronic control weapon or
conducted energy device, and any strike with an impact weapon
to a person’s head.

(B) A record related to any finding by a law enforcement agency
or oversight agency that a peace officer or custodial officer engaged
in sexual assault, an excessive use of force, an unjustified search,
detention or arrest, racial or identity profiling, as defined in
subdivision (e) of Section 13519.4, discrimination or unequal
treatment on the basis of race, color, ethnicity, national origin, age,
religion, gender identity or expression, sexual orientation, or mental
or physical disability, or any other violation of the legal rights of
a member of the public.

(C) A record related to any finding by a law enforcement agency
of job-related dishonesty by a peace officer or custodial officer,
including, but not limited to, perjury, false statements, filing false
reports, or destruction or concealment of evidence.

(2) Records that shall be released pursuant to this subdivision
include, but are not limited to, the framing allegation or complaint,
the agency’s full investigation file, any evidence gathered, and
any findings or recommended findings, discipline, or corrective
action taken.

(3) A record disclosed pursuant to this section shall be redacted
only 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 begin insert officers end insert and
custodial officers, to preserve the anonymity of complainants and
witnesses, or to protect confidential medical, financial, or other
information in which disclosure would cause an unwarranted
invasion of personal privacy that clearly outweighs the strong
public interest in records about misconduct by peace officers and
custodial officers, or where there is a specific, 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 others.

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(4) An agency may withhold a record that is disclosable
pursuant to paragraph (1) during an investigation into the use of
force until the peace officer’s employing agency determines
whether the use of force violated a law or agency policy or until
the district attorney with jurisdiction over the use of force
determines whether to file criminal charges for the use of force,
whichever is later, but shall not withhold a record that is
disclosable pursuant to paragraph (1) for longer than 180 days
from the date of the use of force.

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(d) Notwithstanding subdivisions (a) and (c), a department or
agency shall release to the complaining party a copy of his or her
own statements at the time the complaint is filed.

(e) Notwithstanding subdivisions (a) and (c), a department or
agency that employs peace officers or custodial officers may
disseminate data regarding the number, type, or disposition of
complaints (sustained, not sustained, exonerated, or unfounded)
made against its officers if that information is in a form which
does not identify the individuals involved.

(f) Notwithstanding subdivisions (a) and (c), a department or
agency that employs peace officers or custodial officers may release
factual information concerning a disciplinary investigation if the
officer who is the subject of the disciplinary investigation, or the
officer’s agent or representative, publicly makes a statement he or
she knows to be false concerning the investigation or the imposition
of disciplinary action. Information may not be disclosed by the
peace officer’s or custodial officer’s employer unless the false
statement was published by an established medium of
communication, such as television, radio, or a newspaper.
Disclosure of factual information by the employing agency
pursuant to this subdivision is limited to facts contained in the
officer’s personnel file concerning the disciplinary investigation
or imposition of disciplinary action that specifically refute the false
statements made public by the peace officer or custodial officer
or his or her agent or representative.

(g) (1) The department or agency shall provide written
notification to the complaining party of the disposition of the
complaint within 30 days of the disposition. The notification shall
include, at a minimum, the charges framed in response to the
complaint, the agency’s disposition with respect to each of those
charges, any factual findings on which the agency based its
dispositions, and any discipline imposed or corrective action taken.

(2) The notification described in this subdivision shall not be
conclusive or binding or admissible as evidence in any separate
or subsequent action or proceeding brought before an arbitrator,
court, or judge of this state or the United States.

(h) This section does not affect the discovery or disclosure of
information contained in a peace officer’s or custodial officer’s
personnel file pursuant to Section 1043 of the Evidence Code.

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begin insert SEC. 6. end insert   

The Legislature finds and declares that Section 6 of
this act, which amends Section 832.7 of the Penal Code, furthers,
within the meaning of paragraph (7) of subdivision (b) of Section
3 of Article I of the California Constitution, the purposes of that
constitutional section as it relates to the right of public access to
the meetings of local public bodies or the writings of local public
officials and local agencies. Pursuant to paragraph (7) of
subdivision (b) of Section 3 of Article I of the California
Constitution, the Legislature makes the following findings:

The public has a strong, compelling interest in law enforcement
transparency because it is essential to having a just and democratic
society.

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begin insert SEC. 7. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs that may be incurred by a local agency or school district
because, in that regard, this act creates a legislative mandate that
is within the scope of paragraph (7) of subdivision (b) of Section
3 of Article I of the California Constitution.

However, if the Commission on State Mandates determines that
this act contains other costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.