Governor’s Signatures End 40 Years of Police Performance Secrecy

  • 10/05/2018
  • Reporters Desk

By Terry Francke, General Counsel    

As reported in the Los Angeles Times and elsewhere, Gov. Jerry Brown signed, without comment, two bills in a move representing a revolution in law enforcement transparency after four decades of secrecy blanketing police and correctional officer performance in violent situations.

Co-sponsored by the California News Publishers Association (CNPA) and the ACLU, SB 1421 and AB 748 will for the first time require public access to records, including video recordings, of officer involvement in violent encounters with suspects and others they deal with.

CNPA announced the legislative milestone to its members thus:

The new laws will help news reporters cover serious incidents involving law enforcement in their communities, including police shootings, and will allow the public at large to demand access to 911 calls, surveillance footage gathered as evidence, body and dash camera footage, and other video and audio footage related to a shooting or serious use of force that causes injury to a citizen.

The new laws also require police agencies to release documents in a police officer’s personnel record to help the public determine how the agency investigated a critical incident and disciplined the officer, if warranted. These new laws will benefit public defenders and prosecutors who must rely on police testimony in court in convicting individuals, improving the integrity of the criminal justice system in the state.

SB 1421 will require, “notwithstanding any other law,” disclosure of, in the words of the Legislative Counsel’s Digest, “certain peace officer or custodial officer personnel records and records relating to specified incidents, complaints, and investigations involving peace officers and custodial officers to be made available for public inspection pursuant to the California Public Records Act.”

That information will include a record “relating to the report, investigation, or findings of any of the following:

  • “An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
  • “An incident in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury.
  • “(A)n incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.”

More specifically disclosure will include:

  • All investigative reports;
  • Photographic, audio, and video evidence;
  • Transcripts or recordings of interviews; autopsy reports;
  • All materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, or whether the officer’s action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take;
  • Documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.

Records so disclosed could 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
  • “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.”

The law will allow the delay of disclosure of records relating to an open investigation or court proceeding, subject to certain limitations. And a provision that might reduce the rate of disclosure under the bill states: “A record of a civilian complaint, or the investigations, findings, or dispositions of that complaint, shall not be released pursuant to this section if the complaint is frivolous … or if the complaint is unfounded.”

AB 748 will require a video or audio recording that relates to an incident involving a peace officer’s use of force, or involving a violation of law or agency policy by a peace officer, to be made public, but withheld for 45 calendar days, subject to extensions, if disclosure would substantially interfere with an active investigation.

It will also allow the recording to be withheld if the public interest in withholding the video or audio recording clearly outweighs the public interest in disclosure because the release of the recording would, based on the facts and circumstances depicted in the recording, violate the reasonable expectation of privacy of a person depicted in the recording, in which case the bill will allow the recording to be redacted to protect that interest.

If the agency demonstrates that the depicted person’s reasonable expectation of privacy cannot not adequately be protected through redaction, the bill will require that the recording be promptly disclosed to a subject in the recording or his or her immediate family, if deceased.

It is the hope that this marks the beginning of the end of union-demanded rules allowing and even requiring the employers of California peace officers — police and sheriff’s departments and less obvious state and local agencies with sworn officers — to keep all law enforcement personnel records secret until and unless the employer is sued or the officer is prosecuted. This secrecy in effect protects the most unfit, corrupt and downright dangerous public safety agents from public scrutiny, and correspondingly shields those responsible for their hiring and retention from public accountability. The overwhelming majority who deserve their badges and our trust may well be quietly welcoming this news, even if they dare not celebrate it.

Terry Francke previously served 14 years as executive director and general counsel to the California First Amendment Coalition, after a 10-year post as legal counsel for the California Newspaper Publishers Association. He has served as an advisory panel member to the National Center on Courts and the Media; taught journalism law at the Department of Communication at Stanford University; and served as an expert contributor to the 1994 major revisions to the Ralph M. Brown Act and the 2004 ballot proposition making open government a basic right of citizens under the California Constitution.

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