BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          SB 1286 (Leno) - Peace officers:  records of misconduct
          
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          |Version: April 21, 2016         |Policy Vote: PUB. S. 5 - 1      |
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          |Urgency: No                     |Mandate: Yes                    |
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          |Hearing Date: May 9, 2016       |Consultant: Jolie Onodera       |
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          This bill meets the criteria for referral to the Suspense File.


          Bill  
          Summary:  SB 1286 would provide greater public access to peace  
          officer and custodial officer personnel records and other  
          records maintained by a state or local agency related to  
          complaints against those officers. This bill would require  
          additional information to be provided in a written notification  
          to a complaining party of the disposition of a complaint against  
          a peace officer or custodial officer, as specified.


          Fiscal  
          Impact:  
            Peace officer complaint notifications  :  Potentially  
            significant ongoing costs to state and local agencies  
            employing peace officers, the local costs of which are  
            potentially state-reimbursable (General Fund), to provide  
            additional information in written notifications on the  
            dispositions of complaints. The DOJ annual report Crime in  
            California reflects an average of over 16,000 complaints  
            reported against peace officers annually for each of the past  
            two years. The workload required to include the additional  







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            information is unknown and would vary by agency. Assuming 15  
            minutes per notice, costs are estimated in the hundreds of  
            thousands of dollars annually. 
            Custodial officer complaint notifications  :  Non-reimbursable  
            local costs (Local Costs) to agencies employing custodial  
            officers to provide additional information in written  
            notifications on the disposition of complaints. The procedure  
            to investigate complaints by members of the public against  
            custodial officers is permissive, therefore, any additional  
            costs to comply with the complaint procedures are estimated to  
            be non-reimbursable. 
            Public records requests to local agencies  :  Major ongoing  
            non-reimbursable local costs, potentially in the millions of  
            dollars (Local Funds) statewide given the large number of  
            local agencies employing officers (482 cities and 58  
            counties), to respond to a greater number of California Public  
            Records Act (CPRA) requests for personnel and other records  
            related to complaints against officers. Staff notes due to the  
            passage of Proposition 42 (2014), the Commission on State  
            Mandates concluded the CPRA program no longer constitutes a  
            reimbursable state-mandated program beginning June 4, 2014. To  
            the extent access to records via CPRA request results in fewer  
            Pitchess motions to address, could potentially reduce existing  
            local agency workload to some degree. 
            Courts  :  Potentially significant reduction in ongoing workload  
            (General Fund*) to the extent the ability of numerous entities  
            to obtain peace officer personnel records through CPRA request  
            results in fewer Pitchess motions filed with the courts.
            State agencies:   Potentially significant increase in ongoing  
            workload (General Fund/Special Fund**) to numerous agencies  
            employing peace officers including but not limited to the DOJ,  
            CDCR, CHP, DSH, CAL FIRE, University of California, and  
            California State University to respond to a greater number of  
            CPRA requests. To the extent public access to records via CPRA  
            request results in fewer Pitchess motions to address could  
            potentially reduce existing workload to some degree, however,  
            the extent of this impact is unquantifiable at this time.
           
           *Trial Court Trust Fund
          **Legal Services Revolving Fund, Motor Vehicle Account


          Background:  Existing law requires each department or agency in this state  
          that employs peace officers to establish a procedure to  
          investigate complaints by members of the public against the  








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          personnel of these departments or agencies. Departments and  
          agencies are additionally required to make a written description  
          of the procedure available to the public. (Penal Code (PC) §  
          832.5(a)(1).)
          Under existing law, departments or agencies that employ  
          custodial officers, as defined, may establish a procedure to  
          investigate complaints by members of the public against those  
          custodial officers employed by those departments or agencies,  
          provided however, that any procedure so established shall comply  
          with the provisions in the section that apply to agencies  
          employing peace officers. (PC 832.5(a)(2).)

          Existing law provides that complaints and any reports or  
          findings relating to these complaints must be retained for a  
          period of at least five years. All complaints retained may be  
          maintained either in the officer's general personnel file or in  
          a separate file designated by the agency, as specified. However,  
          prior to any official determination regarding promotion,  
          transfer, or disciplinary action by an officer's employing  
          agency, the complaints determined to be frivolous shall be  
          removed from the officer's general personnel file and placed in  
          separate file designated by the department or agency, as  
          specified. (PC § 832.5(b).)

          Existing law provides that complaints by members of the public  
          that are determined by the officer's employing agency to be  
          frivolous, as defined, 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 and Section 1043 of the Evidence Code (which governs  
          discovery and disclosure of police personnel records in legal  
          proceedings). (PC § 832.5(c).)

          Under existing law, departments and agencies are required to  
          provide written notification to the complaining party of the  
          disposition of the complaint within 30 days of the disposition.  
          (PC § 832.7(e).)

          Existing law provides that 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  








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          any criminal or civil proceeding except by discovery pursuant to  
          Sections 1043 and 1046 of the Evidence Code. Existing law  
          provides that 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, or the Attorney General's office. (PC § 832.7(a).) 

          Copley Press, Inc. v. Superior Court<1>


          The California Public Records Act (CPRA) provides generally that  
          "every person has a right to inspect any public record," except  
          as specified in that act. As described above, there is another  
          set of statutes that make peace officer personnel records  
          confidential and establish a procedure for obtaining these  
          records, or information from them. The complex interaction  
          between these interrelated statutory schemes has given rise to a  
          number of decisions interpreting various specific provisions.  
          Perhaps the most notorious of these decisions is Copley Press,  
          Inc. v. Superior Court.  

          In August of 2006, the California Supreme Court held in Copley  
          Press, Inc. v. Superior Court, that the right of access to  
          public records under the CPRA did not allow Copley Press to be  
          given access to the hearing or records of an administrative  
          appeal of a disciplinary action taken against a San Diego deputy  
          sheriff. (Copley Press, Inc. v. Superior Court, 39 Cal. 4th 1272  
          (2006).) Copley, additionally, provides that a public  
          administrative body responsible for hearing a peace officer's  
          appeal of a disciplinary matter is an "employing agency"  
          relative to that officer, and therefore exempt from disclosing  
          certain records of its proceedings in the matter under the CPRA.  
          (Id.) 

          Copley Press then filed a petition for a writ of mandate and  
          complaint for declaratory and injunctive relief. The trial court  
          denied the publisher's disclosure request under the California  
          Public Records Act. The Fourth District Court of Appeal  
          reversed. The California Supreme Court then reversed and  
          remanded the matter to the Court of Appeal. In reversing and  
          ---------------------------
          <1> Senate Committee on Public Safety analysis of SB 1286 (April  
          12, 2016)









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          remanding the matter, the California Supreme Court held that  
          "Section 832.7 [of the Penal Code] is not limited to criminal  
          and civil proceedings."  (Id. at 1284.)
          
          The Court repeated continuously throughout the opinion that  
          weighing the matter of whether and when such records should be  
          subject to disclosure is a policy matter for the Legislature,  
          not the Courts, to decide:

               Copley's appeal to policy considerations is  
               unpersuasive. Copley insists that "public scrutiny of  
               disciplined officers is vital to prevent the arbitrary  
               exercise of official power by those who oversee law  
               enforcement and to foster public confidence in the  
               system, especially given the widespread concern about  
               America's serious police misconduct problems. There  
               are, of course, competing policy considerations that  
               may favor confidentiality, such as protecting  
               complainants and witnesses against recrimination or  
               retaliation, protecting peace officers from  
               publication of frivolous or unwarranted charges, and  
               maintaining confidence in law enforcement agencies by  
               avoiding premature disclosure of groundless claims of  
               police misconduct. "? the Legislature, though  
               presented with arguments similar to Copley's, made the  
               policy decision "that the desirability of  
               confidentiality in police personnel matters does  
               outweigh the public interest in openness." ... [I]t is  
               for the Legislature to weigh the competing policy  
               considerations. As one Court of Appeal has explained  
               in rejecting a similar policy argument: "[O]ur  
               decision ... cannot be based on such generalized  
               public policy notions. As a judicial body, ... our  
               role [is] to interpret the laws as they are written."  
               (Copley Press, Inc. v. Superior Court, supra,  
               1298-1299, citations omitted, emphasis added.) 

          This bill seeks to respond to the Court's statement that it is  
          for the Legislature to weigh the aforementioned competing policy  
          considerations, and provides that the Legislature finds and  
          declares that "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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          Proposed Law:  
           This bill would provide greater public access to peace officer  
          and custodial officer personnel records and other records  
          maintained by a state or local agency related to complaints  
          against these officers. This bill would require additional  
          information to be provided in a written notification to a  
          complaining party of the disposition of a complaint against a  
          peace officer or custodial officer, as specified. Specifically,  
          this bill:
                 Requires a department or agency to provide, in the  
               written notification to the complaining party of the  
               disposition of a complaint, 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, as specified.


                 Expands the scope of the exceptions investigations or  
               proceedings concerning the conduct of peace officers or  
               custodial officers, 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.


                 Requires, notwithstanding any other law, the following  
               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, as  
               specified:


                  o         A record related to the investigation or  








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                    assessment of any use of force by a peace officer that  
                    is likely to or does cause death or serious bodily  
                    injury, including 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. 


                  o         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, 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. 


                  o         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. 


                 Provides that the records to be released 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. 


                 Requires 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  








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               officers and custodial officers, or where 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, as  
               specified.


                 Specifies that the provisions that establish discovery  
               procedures for obtaining peace officer personnel files 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.




          Related  
          Legislation:  AB 1648 (Leno) 2007 would have amended existing  
          law relating to the disclosure of information contained in  
          personnel records maintained by specified state and local  
          agencies. AB 1648 declared the intent of the Legislature to  
          overturn the California Supreme Court decision in Copley Press,  
          Inc. v. Superior Court, 39 Cal 4th1272 (2006), and restore  
          public access to peace officer records, meetings, and hearings  
          that were open to the public prior to the Copley decision. AB  
          1648 failed passage in the Assembly Committee on Public Safety.

          SB 1019 (Romero) 2007 SB 1019 would have abrogated the holding  
          in Copley and would have made specified limited information  
          available to the public upon a determination that an officer is  
          disciplined. SB 1019 failed passage in the Assembly Committee on  
          Public Safety.


          Staff  
          Comments: This bill significantly expands the exception to the  
          confidentiality provisions of existing law pursuant to PC §  
          832.7 specified for peace officer and custodial officer  
          personnel and related records. Existing law provides an  
          exception to the confidentiality of these records for  








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          investigations or proceedings conducted by a grand jury, a  
          district attorney's office, or the Attorney General's office.  
          This bill expands access of officer records for investigations  
          or proceedings conducted by the following entities: 
             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.

          As drafted, these parameters appear overly broad. As one  
          example, "any entities empowered to investigate peace officer  
          misconduct on behalf of an agency," arguably could encompass any  
          news agency or other non-governmental entity.


          This bill additionally provides for public access to the  
          following peace officer records under the CPRA:

                 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,  
               including, 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.

                 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.









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                 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.

          While it is the understanding of the Committee that the intent  
          of the aforementioned provisions is to limit access to records  
          of "sustained" findings, staff notes it is unclear whether the  
          use of "any finding" as used in this context, could potentially  
          be interpreted to include a finding that a complaint was  
          unfounded, non-sustained, or exonerated. Staff notes it could be  
          argued that what "any" contributes is a widening of the meaning  
          the sentences might otherwise have. To clarify intent and reduce  
          the fiscal impact of this measure by narrowing the types of  
          records potentially subject to CPRA disclosure, the author may  
          wish to consider an amendment to reference the word "sustained,"  
          as defined in PC § 832.5(d)(3), within this section of the bill.  


          Consistent with the comments above seeking to narrow public  
          access to complaints determined to be "sustained," the existing  
          reference to records "related to" any finding may inadvertently  
          result in the release of records of complaints that were found  
                            to be unfounded, exonerated, or non-sustained. To address this  
          concern, the author may wish to consider an amendment to specify  
          a record "pertaining to" a sustained finding may be subject to  
          public inspection pursuant to the CPRA. 



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