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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