BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 1286 (Leno) - Peace officers: records of misconduct ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: April 21, 2016 |Policy Vote: PUB. S. 5 - 1 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: May 9, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- 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 SB 1286 (Leno) PageA of? 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 SB 1286 (Leno) PageB of? 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 SB 1286 (Leno) PageC of? 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) SB 1286 (Leno) PageD of? 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." SB 1286 (Leno) PageE of? 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 SB 1286 (Leno) PageF of? 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 SB 1286 (Leno) PageG of? 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 SB 1286 (Leno) PageH of? 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. SB 1286 (Leno) PageI of? 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. -- END --