SENATE THIRD READING

STR Bill Id:SB 776

Author:(Skinner)

As Amended Ver:August 30, 2020

Majority vote

SUMMARY:

Expands the categories of personnel records of peace officers and custodial officers that are subject to disclosure under the California Public Records Act (CPRA) and establishes civil penalties for untimely disclosure.

Major Provisions

1. Requires, commencing July 1, 2021, disclosure of an incident involving use of force to make a member of the public comply with an officer, force that is unreasonable, or excessive force.
2. Adds, commencing July 1, 2021, a new category of disclosure for records relating to sustained findings of an incident involving prejudice or discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
3. Requires, commencing July 1, 2021, disclosure of records relating to sustained findings of unlawful arrests and unlawful searches.
4. Expands the purpose of required redaction to include preserving the anonymity of victims.
5. Expands the category of frivolous and unfounded complaints, or the investigations, findings, or dispositions of those complaints that shall not be released pursuant to this section to include any complaint, not just civilian complaints.
6. Incorporates misconduct allegations into the disclosure delay provisions pertaining to records of an incident that are the subject of an active criminal or administrative investigation.
7. Requires that the foregoing records be released when an officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.
8. Specifies that persons who request records subject to disclosure are responsible for the cost of duplication, but not the cost of editing and redacting the records.
9. Provides that except to the extent temporary withholding for a longer period is permitted because of an active criminal or administrative investigation, as specified, records subject to disclosure shall be provided at the earliest possible time and no later than 45 days from the date of request for their disclosure.
10. Imposes a civil fine not to exceed $1,000 per day for each day beyond 30 days that records subject to disclosure are not disclosed.
11. Provides that a member of the public who files suit for records found to have been improperly withheld or improperly redacted is entitled to twice the party’s reasonable costs and attorney fees, to be paid by the public agency.
12. Requires retention of all complaints and any reports currently in the possession of the agency for at least 30 years if there is a sustained finding of misconduct.
13. Removes the requirement that a court, in determining the relevance of and whether to disclose records of complaints of officer misconduct, exclude disclosure of information of misconduct that occurred more than five years before the event or transaction that is the subject of the litigation for which discovery or disclosure is sought.
14. Requires each department or agency to request and review a peace officer’s personnel file prior to hiring the officer.
15. Requires every person employed as a peace officer to immediately self-report all uses of force by the officer to the officer’s department or agency.
16. Double joints this bill with SB 731 (Bradford) and SB 1220 (Umberg), both of the current legislative session, to avoid chaptering issues.

COMMENTS:

According to the Author:

After forty years of prohibiting public access to any and all police records, SB 1421, passed in 2018, finally gave Californians the right to obtain a very limited set of records on police misconduct. While SB 1421 was a hard fought breakthrough, California remains an outlier when it comes to the public’s right to know about those who patrol our streets and enforce our laws. At least twenty other states have far more open access, with states like New York, Ohio and others having essentially no limitations on what records are publicly available. This bill, SB 776, opens California’s door further and would make public law enforcement records on additional uses of force, wrongful arrests or wrongful searches, and for the first time, records related to an officer’s biased or discriminatory actions. Additionally, SB 776 ensures that officers with a history of misconduct can’t just quit their jobs, keep their records secret, and move on to continue bad behavior in another jurisdiction. SB 776 also establishes civil penalties for agencies that fail to release records in a timely manner and mandates that agencies can only charge for the cost of duplication."

Arguments in Support:

According to the American Civil Liberties Union of California, "[SB 776] expands the types of peace officer misconduct records that would be available to the public in an effort to further improve and expand law enforcement transparency and accountability.

"The California legislature significantly improved law enforcement transparency with the passage of SB 1421 (Skinner, Chapter 988, Statutes of 2018). That bill expanded Penal Code 832.7 by piercing the secrecy that shrouds deadly uses of force and serious officer misconduct by providing public access to information about these critical incidents, such as when an officer shoots, kills, or seriously injures a member of the public, is proven to have sexually assaulted a member of the public, or is proven to have planted evidence, committed perjury, or otherwise been dishonest in the reporting, investigation, or prosecution of a crime. Access to records of how departments handle these serious uses – and abuses – of police power is necessary to allow the public to make informed judgments about whether existing processes and infrastructures are adequate.

"Following the killings of George Floyd, Breonna Taylor, Ahmaud Arbery, Sean Monterrosa, Erik Salgado, Andres Guardado, and many others, people across the nation are asking elected officials to divest from police, increase accountability and oversight, and reinvest in communities. SB 776 is one of several attempts by the Legislature to strengthen accountability by increasing the law enforcement records available to the public.

[…]

"Notably, the bill also seeks to address the issue of peace officers resigning during an investigation in attempt to stop a sustained finding of misconduct. SB 776 would require the release of records relating to investigations in these categories, although the peace officer resigned before the investigating agency concluded its investigation. This is critically important because resigning to avoid a finding of misconduct is a major loophole that peace officers often use to avoid accountability, frequently to be hired by another law enforcement agency.

"Lastly, the bill would provide safeguards for families that seek to uncover these public records on their own but are prevented due to extraordinary costs placed by the agency to produce these public documents. The bill makes clear that an agency cannot include costs of editing or redacting these records and can charge only reasonable fees for duplication. To increase accountability on the producing law enforcement agencies, the bill also imposes a civil fine of $1,000 per day for each day the records are not disclosed 30 days after the initial request.

"This bill continues to chip away at the multiple levels of policy secrecy in California, building upon the initial gains of SB 1421…."

Arguments in Opposition:

1. According to the Peace Officers Research Association of California, "SB 776 is over-broad and places an innocent officer’s career and personal life in jeopardy. PORAC would be willing to discuss expanding the use of force disclosures to other types of injuries, in addition to death and GBI. Perhaps, re-defining ‘serious injury’ to include more types of injuries would be helpful, in lieu of the current language which applies to all uses of force.

"Regarding the release of not-sustained dishonesty or sexual assault investigations, PORAC is very opposed. Peace officers should not have to defend themselves with the public, or with their family and friends, if the investigation has already shown that they did their jobs correctly. We would ask that only sustained complaints be released.

PORAC is willing to discuss the expansion of what is released when using force. We also support the mandatory reporting of an officer who retires in lieu of an investigation for certain serious allegations. Lastly, PORAC continues to support the release of sustained investigations for dishonesty and sexual assault when added to the potential of creating a POST certificate revocation system, as is being proposed by SB 731 by Senator Bradford. Combined with this measure, an officer who has sustained serious misconduct will not only have the misconduct made public, but will likely never work as a peace officer in California again…"

1. According to the California Law Enforcement Association of Records Supervision, "SB 776 will place a substantial burden on records management personnel to comply with a very labor-intensive and cost-prohibitive task, even as rising costs and inadequate revenues have tightened our records management budgets.

"Under current law, agencies retain officer personnel files for five years after they leave the agency for another agency or retire. This provision would be deleted under SB 776, and agencies would be required to retain personnel records of a peace officers in perpetuity even if they no longer work for that agency. As contemplated by SB 776, each agency will be required to construct a system of indefinitely storing these personnel records."

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, costs (General Fund (GF)/Legal Services Revolving Fund) in the low millions of dollars annually to the Department of Justice (DOJ) in staff and infrastructure to review, redact and litigate CPRA cases related to an expanded universe of law enforcement personnel records.

VOTES:

SENATE FLOOR: 30-6-3

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NO: Borgeas, Dahle, Grove, Moorlach, Morrell, Nielsen

ABS, ABST OR NV: Bates, Jones, Portantino

ASM PUBLIC SAFETY: 6-2-0

YES: Jones-Sawyer, Bauer-Kahan, Kamlager, Quirk, Santiago, Mark Stone

NO: Lackey, Diep

ASM APPROPRIATIONS: 12-6-0

YES: Gonzalez, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Quirk, Robert Rivas

NO: Bigelow, Megan Dahle, Diep, Fong, Petrie-Norris, Voepel

UPDATED:

VERSION: August 30, 2020

CONSULTANT: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0003546

 UNFINISHED BUSINESS  

Bill No: SB 776

Author: Skinner (D)

Amended: 8/30/20

Vote: 21

PRIOR VOTES NOT RELEVANT

ASSEMBLY FLOOR: Not available

SUBJECT: Peace officers: release of records

SOURCE: Author

DIGEST:

This bill expands the categories of police personnel records that are subject to disclosure under the California Public Records Act (CPRA).

Assembly Amendments delete the prior content of this bill and replace it with new provisions detailed below.

Existing law:

1. Provides pursuant to the CPRA that all records maintained by local and state governmental agencies are open to public inspection unless specifically exempt. (Gov. Code, §§ 6250 et seq.) Defines "public records" to include any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code, § 6252, subd. (e).)
2. Requires an agency to justify withholding any record by demonstrating that the record in question is exempt under express provisions of the CPRA or that on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (Gov. Code, § 6255, subd. (a).)
3. Authorizes any person to institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter. (Gov. Code, § 6258.) Provides that if the plaintiff prevails in an action under the CPRA, the judge must award court costs and reasonable attorneys’ fees to the plaintiff. (Govt. Code, § 6259, subd. (d).)
4. Requires the complaints and any reports or findings relating to these complaints shall be retained for a period of at least five years. (Pen. Code, § 832.5, subd. (b).)
5. Provides that complaints by members of the public that are determined by the peace or custodial 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 CPRA. (Pen. Code, § 832.5, subd. (c).) Defines “frivolous” as “totally and completely without merit or for the sole purpose of harassing an opposing party.” (Civ. Code, § 128.5, subd. (b)(2).) Defines “unfounded” as “mean[ing] that the investigation clearly established that the allegation is not true.” (Pen. Code, § 832.5, subd. (d)(2).)
6. States that except as specified, peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to citizens' complaints against personnel are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or any agency or department that employ these officers, conducted by a grand jury, a district attorney's office, or the Attorney General's office. (Pen. Code, § 832.7, subd. (a).)
7. Provides that the following peace officer or custodial records maintained by their agencies shall not be confidential and shall be made available for public inspection pursuant to the CPRA:
   1. A record relating to the report, investigation, or findings of any of the following:
      1. An incident involving the discharge of a firearm at a person by a peace officer or custodial officer; or
      2. 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;
   2. Any record relating to an 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; and,
   3. Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence. (Pen. Code, § 832.7, subd. (b).)
8. States that an agency shall redact a disclosed record for specified purposes, including anonymity of witnesses and complainants. (Pen. Code, § 832.7, subd. (b)(5)(A)-(D).)
9. Provides also that an agency may redact a record disclosed “where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information.” (Pen. Code, § 832.7, subd. (b)(6).) Allows an agency to temporarily withhold records of incidents involving an officer’s discharge of a firearm or use of force resulting in death or great bodily injury by delaying disclosure when the incidents are the subject of an active criminal or administrative investigation. (Pen. Code, § 832.7, subd. (b)(7).)

This bill:

1. Expands the scope of personnel records related to use of force to include the use of force to make a person comply with an officer, unreasonable, and excessive force, in addition to force resulting in death or great bodily injury to a person.
2. Adds a new category of disclosure for sustained records of misconduct relating to an incident involving prejudice or discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
3. Requires disclosure of records relating to sustained findings of unlawful arrests and unlawful searches.
4. Entitles a prevailing party to twice the party’s reasonable costs and attorneys’ fees.
5. Imposes a civil fine not to exceed $1,000 per day for each day beyond 30 days that records subject to disclosure are not disclosed.
6. Codifies existing California Supreme Court case-law requiring law enforcement agencies to cover the costs of editing records.
7. Clarifies that the identity of victims may be redacted in addition to witnesses and complainants.
8. Specifies that personnel records that involved sustained conduct under this section must be maintained for 30 years, and retains the existing requirement that all other records must be retained for five years for all other personnel records.
9. Eliminates the limitation on judges to only consider misconduct complaints against officers from the previous five years when determining relevancy for admissibility in criminal proceedings.
10. Requires officers to self-report uses of force.
11. Delays the implementation of this law until July 1, 2021, to give law enforcement agencies time to review and prepare existing records made subject to disclosure by this bill. This delay does not limit the mandate to disclose all responsive records to records created prior to July 1, 2021.

Background

California law has long kept secret records held by law enforcement agencies after making police personnel records completely confidential in 1978 — a benefit provided only to this class of public employee. In 2018, the Legislature passed SB 1421 (Skinner, Chapter 988), which represented a paradigm shift in how local and state police agencies must disclose information when police use of force, or are subject to sustained findings of misconduct related to sexual assault and dishonesty.

When SB 1421 went into effect on January 1, 2019, every single law enforcement agency in California received a request for records made disclosable by the new law. Many of the requests sought a comprehensive release of all existing and relevant records from the agencies. Despite changes to the law, agencies across the state have taken actions that have delayed or denied the public access to records for which disclosure should be mandated. For example, cities such as Downey, Inglewood, Fremont and Morgan Hill destroyed records before January 1, 2019, to avoid producing responsive documents.

Additional attempts to thwart disclosure have taken numerous forms. By March 2019, the Los Angeles Times reported that 170 agencies were in active litigation or refusing to disclose records arguing, among other things, that the law did not apply to records created before 2019. This litigation has created substantial delays in access, and has encouraged agencies to fight in court rather than invest in resources to disclose the records. Agencies are also setting up roadblocks to disclosure. For example, the City of Anaheim demanded a $3,000 deposit before it would begin the process to disclose records to a mother about the death of her unarmed son at the hands of police.

This bill seeks to respond to agencies flouting of the law by allowing a court to impose civil penalties on an agency for delaying disclosure of SB 1421 records, and increasing attorney’s fees for litigation over those records to discourage violations of the law and increase compliance.

Even though California has radically shifted its confidential treatment of police records, it remains an outlier when it comes to the public’s right to know about police misconduct and use of force. At least 20 other states have far more open access, including New York, which completely eliminated it statutory scheme for confidentiality in police personnel records this summer. California’s law remains narrowly focused in disclosing only specified categories of misconduct and uses of force. By expanding the categories of disclosure, the bill adds on to SB 1421’s structure of mandating disclosure about the most important incidents, including all uses of force, wrongful arrests and wrongful searches, and records related to an officer’s biased or discriminatory actions.

Unlike the recent New York legislation, this bill takes a modest approach to broadening the categories of personnel records that become subject to disclosure under the public records act. This bill expands the categories in three moderate ways. First it expands the use of force disclosures that are currently permissible to include uses of force by peace or custodial officers that are used to make a person comply, unreasonable force, and excessive force. Second, the bill allows for release of sustained findings of unlawful searches and unlawful arrests. Finally the bill permits the release of records that show racist or discriminatory conduct that has been sustained by the agency are also subject to disclosure. On top of all of this, the bill contains significant privacy protections that permit the redaction of the identifying information of victims, witnesses, and complainants. Had the New York approach been taken, this bill would have simply eliminated Penal Code Section 832.7 completely and all peace officer personnel records would be public records, with no limitations or protections. This bill is a modest expansion of existing law.

In the flurry of litigation over SB 1421, one court of appeal discussed an open legal question regarding interpretation of the law: whether the Public Record Act’s discretionary (i.e. voluntary) exemptions can be asserted to withhold records that are mandated for disclosure by SB 1421. In Bacerra v. Superior Court, 44 Cal. App. 5th 897 (2020), the court recognized that the interest behind exemptions in the PRA could be asserted through the balancing test language in 832.7(b)(6). Through that exemption, an agency may redact records as necessary based on another law that protects that information from disclosure. However, the court also said the discretionary exemptions in the PRA do not swallow SB 1421’s mandate to disclose specified documents and information.

In the Assembly, this bill was amended to remove a proposed section that clarified the application of the attorney-client privilege to SB 1421 records. This provision would have specifically incorporated the privilege into the 832.7 disclosure scheme. By removing the provision altogether, the law remains as the court pointed to in Bacerra — the privilege may be asserted through the 832.7(b)(6) balancing test and privileged information must be segregated from non-privileged information, which includes facts discovered through an investigation.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Assembly Appropriations Committee, costs (General Fund (GF)/Legal Services Revolving Fund) of $5.6 million dollars in fiscal year (FY) 2020-21 and $10 million dollars annually thereafter to the Department of Justice in staff and infrastructure to review, redact and litigate CPRA cases related to an expanded universe of law enforcement personnel records. Possible non-reimbursable costs possibly in the millions of dollars, to local public entities statewide, including cities, counties and special districts to review and redact peace officer personnel records. Costs will also likely include significant court and expert costs and attorneys’ fees. Local costs related to compliance with the CPRA are non-reimbursable pursuant to Proposition 40 (2012).

SUPPORT: (Verified 8/29/20)

Alliance for Boys and Men of Color

American Association of Independent Music

American Civil Liberties Union – California

American Federation of Musicians

Artist Rights Alliance

Asian Americans Advancing Justice – California

Asian Solidarity Collective

Black Music Action Coalition

California Attorneys for Criminal Justice

California Innocence Coalition

California League of Conservation Voters

California Newspaper Publishers Association

California Pan - Ethnic Health Network

California Public Defenders Association

Californians for Safety and Justice

Child Care Law Center

Cities of Alameda and Oakland

Community Advocates for Justice and Moral Governance

Courage California

Disability Rights California

Drug Policy Alliance

East Bay for Everyone

Ella Baker Center for Human Rights

First Amendment Coalition

Friends Committee on Legislation of California

Fund Her

Latino Coalition for a Healthy California

League of Women Voters of California

Music Artists Coalition

National Association of Social Workers, California Chapter

Peace and Freedom Party of California

Pillars of the Community

Recording Industry Association of California

San Francisco District Attorney’s Office
San Francisco Public Defender

Screen Actors Guild – American Federation of Television and Radio Artists

Smart Justice California

Songwriters of North America

Think Dignity

Voices for Progress

We the People – San Diego

Western Center for Law and Poverty

OPPOSITION: (Verified 8/30/20)

California Law Enforcement Association of Records Supervisors
California Police Chiefs Association

California Peace Officers Association
California State Sheriffs' Association

Cities of Clovis, Cypress, Elk Grove, Fountain Valley, Kerman, Kingsburg, Murrieta, Torrance, and Tustin

League of California Cities

Prepared by: Gabe Caswell / PUB. S. /

8/31/20 23:23:36

**** END ****

SENATE THIRD READING

STR Bill Id:SB 776

Author:(Skinner)

As Amended Ver:August 25, 2020

Majority vote

SUMMARY:

Expands the categories of personnel records of peace officers and custodial officers that are subject to disclosure under the California Public Records Act (CPRA) and establishes civil penalties for untimely disclosure.

Major Provisions

1. Requires disclosure of every incident involving use of force to make a member of the public comply with an officer, force that is unreasonable, excessive force, or force that results in great bodily injury or death.
2. Removes the requirement that a record related to dishonesty other than perjury be found to be sustained in order to be subject to disclosure.
3. Adds a new category of disclosure for records relating to sustained findings of an incident involving prejudice or discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
4. Requires disclosure of records relating to sustained findings of unlawful arrests and unlawful searches.
5. Expands the purpose of required redaction to include preserving the anonymity of victims.
6. Expands the category of frivolous and unfounded complaints, or the investigations, findings, or dispositions of those complaints that shall not be released pursuant to this section to include any complaint, not just civilian complaints.
7. Incorporates misconduct allegations into the disclosure delay provisions pertaining to records of an incident that are the subject of an active criminal or administrative investigation.
8. Requires that the foregoing records be released when an officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.
9. Specifies that persons who request records subject to disclosure are responsible for the cost of duplication, but not the cost of editing and redacting the records.
10. Provides that except to the extent temporary withholding for a longer period is permitted because of an active criminal or administrative investigation, as specified, records subject to disclosure shall be provided at the earliest possible time and no later than 45 days from the date of request for their disclosure.
11. Imposes a civil fine not to exceed $1,000 per day for each day beyond 30 days that records subject to disclosure are not disclosed.
12. Provides that a member of the public who files suit for records found to have been improperly withheld or improperly redacted is entitled to twice the party's reasonable costs and attorney fees, to be paid by the public agency.
13. Requires retention of all complaints and any reports currently in the possession of the agency for at least 30 years if there is a sustained finding of misconduct.
14. Removes the requirement that a court, in determining the relevance of and whether to disclose records of complaints of officer misconduct, exclude disclosure of information of misconduct that occurred more than five years before the event or transaction that is the subject of the litigation for which discovery or disclosure is sought.
15. Requires each department or agency to request and review a peace officer's personnel file prior to hiring the officer.
16. Requires every person employed as a peace officer to immediately self-report all uses of force by the officer to the officer's department or agency
17. Double joints this bill with SB 731 (Bradford) and SB 1220 (Umberg) to avoid chaptering issues.

COMMENTS:

According to the Author:

After forty years of prohibiting public access to any and all police records, SB 1421, passed in 2018, finally gave Californians the right to obtain a very limited set of records on police misconduct. While SB 1421 was a hard fought breakthrough, California remains an outlier when it comes to the public's right to know about those who patrol our streets and enforce our laws. At least twenty other states have far more open access, with states like New York, Ohio and others having essentially no limitations on what records are publicly available. This bill, SB 776, opens California's door further and would make public law enforcement records on additional uses of force, wrongful arrests or wrongful searches, and for the first time, records related to an officer's biased or discriminatory actions. Additionally, SB 776 ensures that officers with a history of misconduct can't just quit their jobs, keep their records secret, and move on to continue bad behavior in another jurisdiction. SB 776 also establishes civil penalties for agencies that fail to release records in a timely manner and mandates that agencies can only charge for the cost of duplication."

Arguments in Support:

According to the American Civil Liberties Union of California, "[SB 776] expands the types of peace officer misconduct records that would be available to the public in an effort to further improve and expand law enforcement transparency and accountability.

"The California legislature significantly improved law enforcement transparency with the passage of SB 1421 (Skinner, Chapter 988, Statutes of 2018). That bill expanded Penal Code 832.7 by piercing the secrecy that shrouds deadly uses of force and serious officer misconduct by providing public access to information about these critical incidents, such as when an officer shoots, kills, or seriously injures a member of the public, is proven to have sexually assaulted a member of the public, or is proven to have planted evidence, committed perjury, or otherwise been dishonest in the reporting, investigation, or prosecution of a crime. Access to records of how departments handle these serious uses – and abuses – of police power is necessary to allow the public to make informed judgments about whether existing processes and infrastructures are adequate.

"Following the killings of George Floyd, Breonna Taylor, Ahmaud Arbery, Sean Monterrosa, Erik Salgado, Andres Guardado, and many others, people across the nation are asking elected officials to divest from police, increase accountability and oversight, and reinvest in communities. SB 776 is one of several attempts by the Legislature to strengthen accountability by increasing the law enforcement records available to the public.

[…]

"Notably, the bill also seeks to address the issue of peace officers resigning during an investigation in attempt to stop a sustained finding of misconduct. SB 776 would require the release of records relating to investigations in these categories, although the peace officer resigned before the investigating agency concluded its investigation. This is critically important because resigning to avoid a finding of misconduct is a major loophole that peace officers often use to avoid accountability, frequently to be hired by another law enforcement agency.

"Lastly, the bill would provide safeguards for families that seek to uncover these public records on their own but are prevented due to extraordinary costs placed by the agency to produce these public documents. The bill makes clear that an agency cannot include costs of editing or redacting these records and can charge only reasonable fees for duplication. To increase accountability on the producing law enforcement agencies, the bill also imposes a civil fine of $1,000 per day for each day the records are not disclosed 30 days after the initial request.

"This bill continues to chip away at the multiple levels of policy secrecy in California, building upon the initial gains of SB 1421…."

Arguments in Opposition:

1. According to the Peace Officers Research Association of California, "SB 776 is over-broad and places an innocent officer's career and personal life in jeopardy. PORAC would be willing to discuss expanding the use of force disclosures to other types of injuries, in addition to death and GBI. Perhaps, re-defining 'serious injury' to include more types of injuries would be helpful, in lieu of the current language which applies to all uses of force.

"Regarding the release of not-sustained dishonesty or sexual assault investigations, PORAC is very opposed. Peace officers should not have to defend themselves with the public, or with their family and friends, if the investigation has already shown that they did their jobs correctly. We would ask that only sustained complaints be released.

PORAC is willing to discuss the expansion of what is released when using force. We also support the mandatory reporting of an officer who retires in lieu of an investigation for certain serious allegations. Lastly, PORAC continues to support the release of sustained investigations for dishonesty and sexual assault when added to the potential of creating a POST certificate revocation system, as is being proposed by SB 731 by Senator Bradford. Combined with this measure, an officer who has sustained serious misconduct will not only have the misconduct made public, but will likely never work as a peace officer in California again…."

1. According to the California Law Enforcement Association of Records Supervision, "SB 776 will place a substantial burden on records management personnel to comply with a very labor-intensive and cost-prohibitive task, even as rising costs and inadequate revenues have tightened our records management budgets.

"Under current law, agencies retain officer personnel files for five years after they leave the agency for another agency or retire. This provision would be deleted under SB 776, and agencies would be required to retain personnel records of a peace officers in perpetuity even if they no longer work for that agency. As contemplated by SB 776, each agency will be required to construct a system of indefinitely storing these personnel records."

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, costs (General Fund (GF)/Legal Services Revolving Fund) in the low millions of dollars annually to the Department of Justice (DOJ) in staff and infrastructure to review, redact and litigate CPRA cases related to an expanded universe of law enforcement personnel records.

VOTES:

SENATE FLOOR: 30-6-3

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NO: Borgeas, Dahle, Grove, Moorlach, Morrell, Nielsen

ABS, ABST OR NV: Bates, Jones, Portantino

ASM PUBLIC SAFETY: 6-2-0

YES: Jones-Sawyer, Bauer-Kahan, Kamlager, Quirk, Santiago, Mark Stone

NO: Lackey, Diep

ASM APPROPRIATIONS: 12-6-0

YES: Gonzalez, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Quirk, Robert Rivas

NO: Bigelow, Megan Dahle, Diep, Fong, Petrie-Norris, Voepel

UPDATED:

VERSION: August 25, 2020

CONSULTANT: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0003395

Date of Hearing: August 18, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 776

Author:(Skinner) – As Amended Ver:August 10, 2020

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill expands categories of police and custodial personnel records subject to disclosure pursuant to the California Public Records Act (CPRA). Specifically, this bill:

1. Expands use of force complaints to include disclosure of all use of force, not just use of force resulting in death or great bodily injury.
2. Eliminates the five year minimum retention period for complaints against officers and all reports and findings relating to those complaints
3. Allows disclosure of records related to dishonesty or sexual assault where allegations are not sustained but not frivolous.
4. Adds a new category of disclosure for records relating to an incident involving prejudice or discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
5. Requires disclosure of records relating to sustained findings of wrongful arrests and wrongful searches.
6. Prohibits the use of an attorney-client privilege to prevent disclosure of factual information discovered during an investigation or billing records related to the work done by the attorney.
7. Entitles a prevailing party to twice the party’s reasonable costs and attorneys’ fees.
8. Imposes a civil fine not to exceed $1,000 per day for each day beyond 30 days that records subject to disclosure are not disclosed.

FISCAL EFFECT:

1. Costs (General Fund (GF)/Legal Services Revolving Fund) of $5.6 million dollars in fiscal year (FY) 2020-21 and $10 million dollars annually thereafter to the Department of Justice (DOJ) in staff and infrastructure to review, redact and litigate CPRA cases related to an expanded universe of law enforcement personnel records.
   
2. Possible non-reimbursable costs possibly in the millions of dollars, to local public entities statewide, including cities, counties and special districts to review and redact peace officer personnel records. Costs will also likely include significant court and expert costs and attorneys’ fees. Local costs related to compliance with the CPRA are non-reimbursable pursuant to Proposition 40 (2012).

COMMENTS:

1. Purpose. According to the author:

After forty years of prohibiting public access to any and all police records, SB 1421, passed in 2018, finally gave Californians the right to obtain a very limited set of records on police misconduct. While SB 1421 was a hard fought breakthrough, California remains an outlier when it comes to the public’s right to know about those who patrol our streets and enforce our laws. … SB 776, opens California’s door further and would make public law enforcement records on all uses of force, wrongful arrests or wrongful searches, and for the first time, records related to an officer’s biased or discriminatory actions.

1. SB 1421 (Skinner), Chapter 988, Statutes of 2018. In 2018, SB 1421 amended Penal Code section 832.7 to allow the release of peace officer records related to certain allegations of use of force, sustained findings of sexual assault on a member of the public and sustained findings of dishonesty in reporting, investigating or prosecuting a crime. This bill again expands the types of peace officer personnel records that are subject to disclosure pursuant to the CPRA. This bill also requires an officer to immediately self-report all uses of force by the officer to the officer’s department or agency and require a department or agency, prior to hiring an officer, to obtain and review the officer’s personnel or separate file containing records of any investigations of misconduct involving the officer.
2. Implications for Pending Litigation and Employment Matters. Opponents have expressed several concerns about the breadth of this bill. First, this bill would authorize release of unsustained complaints against an officer. Presumably, if a complaint is unsustained or unfounded, it is less relevant to the public and disclosure of such information may violate the officer’s right to privacy. Second, this bill requires release of records, including complaints, investigations and related documents pertaining to verbal or written statements of bias. This may include statements made on social media where the officer is expressing an opinion as a private citizen about a matter of public concern. However, it may be difficult to discipline an officer for statements they made as a private citizen on a matter of public concern. Existing case law requires evidence of a nexus between the police officer’s public statement and a direct harm to the public entity. (City of San Diego v. Roe (2004) 543 U.S. 77, 78.) Releasing information about these matters, even if not sustained, may result in increased litigation for possible First Amendment retaliation.
   
   Additionally, this bill eliminates the attorney-client privilege for “records” related to complaints, investigations and other communications pertaining to specified peace officer disciplinary issues. Proposed section 832.7, subdivision (b)(12) states:

For purposes of releasing records pursuant to this subdivision, the attorney-client privilege shall not be asserted to limit the disclosure of factual information provided by the public entity to its attorney, factual information discovered by any investigation done by the public entity’s attorney, or billing records related to the work done by the attorney.

This provision arguably upends the pending litigation exception in Government Code section 6254, subdivision (b). Specifically, as referenced above, proposed Penal Code section 832.7, subdivision (b)(1)(D) allows public disclosure of complaints pertaining to allegations of bias based on protected classifications. This may include complaints and investigations related to workplace harassment, discrimination and retaliation claims. If one peace officer accuses another peace officer of race harassment or discrimination in violation of the Fair Employment and Housing Act (FEHA) or Title XII of the 1964 Civil Rights Act and an investigation is commenced, this provision may make any informational communications between counsel and the police chief subject to public disclosure notwithstanding anticipated or pending litigation. This may include recommendations regarding discipline and an assessment of legal strategy in the event litigation is or has been commenced. This would effectively eliminate the attorney-client privilege for the public entity defendant in anti-discrimination cases. Furthermore, if the police department commenced an investigation into allegations of workplace harassment or discrimination as is required by law, the investigation report may contain confidential third-party information not subject to disclosure. In litigation, the parties could seek a protective order to prevent disclosure of third party information, but that process does not apply to the CPRA unless litigation commences over redactions. However, this bill states the attorney-client privilege may not even be asserted.

Finally, existing case law makes very clear what types of attorney-prepared investigation reports are not protected as attorney work product or as an attorney-client communication. In City of Petaluma v. Superior Court [Andrea Waters] (2016) 248 Cal. App. 4th 1023, the Appeals Court held when an attorney-investigator is retained to conduct an investigation and is specifically tasked with using their legal expertise in conducting the investigation, privilege applies to the investigation report. Complaints, statements and command staff conclusions about officer misconduct may be subject to production, the investigation report would remain confidential unless privilege is waived by the public entity.

1. Related Legislation. SB 1220 (Umberg), of the 2019-2020 Legislative Session, requires a prosecuting agency to maintain a list of peace officers who have engaged in misconduct in accordance with Brady v. Maryland (1963) 373 U.S. 83. SB 1220 is pending in this committee.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: August 5, 2020

Counsel: Cheryl Anderson

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 776

Author:(Skinner) – As Amended Ver:July 27, 2020

As Proposed to be Amended in Committee

SUMMARY: Expands the categories of personnel records of peace officers and custodial officers that are subject to disclosure under the California Public Records Act (CPRA), establishes civil penalties for untimely disclosure, and prohibits assertion of the attorney-client privilege to limit disclosure of factual information and billing records. Specifically, this bill:

1. Expands the use of force category subject to disclosure to all uses of force.
2. Removes the requirement that a record related to sexual misconduct involving a member of the public or dishonesty be found to be sustained following an investigation in order to be subject to disclosure.
3. Adds a new category of disclosure for records relating to an incident involving prejudice or discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
4. Requires disclosure of records relating to sustained findings of wrongful arrests and wrongful searches.
5. Expands the category of frivolous and unfounded complaints, or the investigations, findings, or dispositions of those complaints that shall not be released pursuant to this section to include any complaint, not just civilian complaints.
6. Incorporates misconduct allegations into the disclosure delay provisions pertaining to records of an incident that are the subject of an active criminal or administrative investigation.
7. Requires that the foregoing records be released when an officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.
8. Specifies that persons who request records subject to disclosure are responsible for the cost of duplication, but not the cost of editing and redacting the records.
9. Imposes a civil fine not to exceed $1,000 per day for each day beyond 30 days that records subject to disclosure are not disclosed.
10. Provides that a member of the public who files suit for records found to have been improperly withheld or improperly redacted is entitled to twice the party’s reasonable costs and attorney fees.
11. Provides that for purposes of releasing peace officer and custodial officer records under the CPRA, the attorney-client privilege shall not be asserted to limit the disclosure of factual information provided by the public entity to its attorney, factual information discovered by any investigation done by the public entity’s attorney, or billing records related to work done by the attorney.
12. Removes the five-year minimum retention period for complaints against officers and any reports or findings relating to these complaints. Requires retention of all complaints and any reports currently in the possession of the agency.
13. Removes the requirement that a court, in determining the relevance of and whether to disclose records of complaints of officer misconduct, exclude disclosure of information of misconduct that occurred more than five years before the event or transaction that is the subject of the litigation for which discovery or disclosure is sought.
14. Requires each department or agency to request and review a peace officer’s personnel file prior to hiring the officer.
15. Requires every person employed as a peace officer to immediately self-report all uses of force by the officer to the officer’s department or agency.

EXISTING LAW:

1. Provides pursuant to the CPRA that all records maintained by local and state governmental agencies are open to public inspection unless specifically exempt. (Gov. Code, §§ 6250 et seq.)
2. Defines "public records" to include any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code, § 6252, subd. (e).)
3. States that except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so. (Government Code, § 6253, subd. (b).)
4. States that, except as in other sections of the CPRA, this chapter does not require the disclosure of specified records, which includes among other things: records of complaints to, or investigations conducted by specified agencies, including any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. (Gov. Code, § 6254, subd. (f).)
   
5. Provides, notwithstanding any other law, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
   
   1. The full name and booking information of all persons arrested;
      
   2. Calls for service logs and crime reports, subject to protections for protecting the confidentiality of victims; and,
      
   3. The addresses of individuals arrested by the agency and victims of a crime, where the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator. (Gov. Code, § 6254, subd. (f).)
      
6. Creates an exemption under the CPRA for personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. (Gov. Code, § 6254, subd. (c).)
7. Creates an exemption under the CPRA for records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege. (Gov. Code, § 6254, subd. (k).)
8. Requires an agency to justify withholding any record by demonstrating that the record in question is exempt under express provisions of the CPRA or that on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (Gov. Code, § 6255, subd. (a).)
   
9. Authorizes any person to institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter. (Gov. Code, § 6258.)
10. Provides that if the plaintiff prevails in an action under the CPRA, the judge must award court costs and reasonable attorneys’ fees to the plaintiff. (Govt. Code, § 6259, subd. (d).)
11. Requires a department or agency employing peace officers or custodial officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies. (Pen. Code, § 832.5, subd. (a).)
12. Requires the complaints and any reports or findings relating to these complaints shall be retained for a period of at least five years. (Pen. Code, § 832.5, subd. (b).)
13. Provides that complaints by members of the public that are determined by the peace or custodial 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 CPRA. (Pen. Code, § 832.5, subd. (c).)
14. Defines “frivolous” as “totally and completely without merit or for the sole purpose of harassing an opposing party.” (Civ. Code, § 128.5, subd. (b)(2).)
15. Defines “unfounded” as “mean[ing] that the investigation clearly established that the allegation is not true.” (Pen. Code, § 832.5, subd. (d)(2).)
16. States that except as specified, peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to citizens' complaints against personnel are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or any agency or department that employ these officers, conducted by a grand jury, a district attorney's office, or the Attorney General's office. (Pen. Code, § 832.7, subd. (a).)
17. Provides that the following peace officer or custodial records maintained by their agencies shall not be confidential and shall be made available for public inspection pursuant to the CPRA:
    1. A record relating to the report, investigation, or findings of any of the following:
       1. An incident involving the discharge of a firearm at a person by a peace officer or custodial officer; or
       2. 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;
    2. Any record relating to an 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; and,
    3. Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence. (Pen. Code, § 832.7, subd. (b).)
18. States that an agency shall redact a disclosed record for the following purposes only:
    1. To remove personal data or information outside the name and work-related information of the officers;
    2. To preserve the anonymity of complainants and witnesses;
    3. To protect confidential medical, financial, or other information whose disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that outweighs the public’s interest in the records; and,
    4. Where there is reason to believe that disclosure of the record would pose a significant danger to the physical safety of the officer or another person. (Pen. Code, § 832.7, subd. (b)(5)(A)-(D).)
19. Provides also that an agency may redact a record disclosed “where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information.” (Pen. Code, § 832.7, subd. (b)(6).)
20. Allows an agency to temporarily withhold records of incidents involving an officer’s discharge of a firearm or use of force resulting in death or great bodily injury by delaying disclosure when the incidents are the subject of an active criminal or administrative investigation. (Pen. Code, § 832.7, subd. (b)(7).)
21. States that a record of a civilian complaint, or the investigations, findings, or dispositions of that complaint, shall not be released if the complaint is frivolous or the complaint is unfounded. (Pen. Code, § 832.7, subd. (b)(8).)
22. States that “personnel records” include “complaints, or investigations of complaints, concerning an event or transaction in which the officer participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.” (Pen. Code, § 832.8.)
23. Requires that each department or agency in this state that employs peace officers shall make a record of any investigations of misconduct involving a peace officer in their general personnel file or a separate file designated by the department or agency. A peace officer seeking employment with a department or agency in this state that employs peace officers shall give written permission for the hiring department or agency to view their general personnel file and any separate file designated by the department or agency. (Pen. Code, § 832.12.)
24. Sets forth the procedure for obtaining peace officer personnel records or records of citizen complaints or information from these records. Specifically, in any case in which discovery or disclosure is sought of peace officer or custodial officer personnel records or records of citizen complaints against peace officers or custodial officers 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 which has custody and control of the records, as specified. (Evid. Code, § 1043.)
25. Provides that a motion for discovery or disclosure of personnel records 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 or custodial officer whose records are sought, the governmental agency which 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; and,
    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. (Evid. Code § 1043, subd. (b).)
26. Limits 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 participated, or which the officer perceived, and pertaining to the manner in which the officer performed, to information that is relevant to the subject matter involved in the pending litigation. (Evid. Code, § 1045, subd. (a).)
27. Provides that in determining relevance, the court shall examine the information in chambers and exclude from disclosure: 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. (Evid. Code, § 1045, subd. (b)(1).)
28. States that courts shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer records requested, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law. (Evid. Code, § 1045, subd. (e).)
29. Confers a privilege, generally and with specified exceptions, on the client to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer. (Evid. Code, § 950 et seq.)
30. Defines the term “confidential communication” to include information transmitted between a client and their lawyer in the course of that relationship and in confidence. (Evid. Code, § 952.)
31. Provides that if a confidential communication between client and lawyer exists, the client has a privilege protecting disclosure, and the attorney has an obligation to refuse disclosure unless otherwise instructed by the client (Evid. Code, §§ 954, 955).
32. States that attorney-client communications are presumed to be confidential and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential. (Evid. Code, § 917.)
33. Provides that it is the duty of an attorney to maintain inviolate the confidence, and at every peril to the attorney to preserve the secrets, of their client. However, an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. (Bus. & Prof. Code, § 6068, subd. (e)(1) & (2); see also Cal. Rules of Court, Rule 3-100(A) & (B).)^[1]
34. Recognizes that litigants may not recover attorney fees from each other absent authorization by statute or contract. (Code Civ. Proc., § 1021.)

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, ”After forty years of prohibiting public access to any and all police records, SB 1421, passed in 2018, finally gave Californians the right to obtain a very limited set of records on police misconduct. While SB 1421 was a hard fought breakthrough, California remains an outlier when it comes to the public’s right to know about those who patrol our streets and enforce our laws. At least twenty other states have far more open access, with states like New York, Ohio and others having essentially no limitations on what records are publicly available. This bill, SB 776, opens California’s door further and would make public law enforcement records on all uses of force, wrongful arrests or wrongful searches, and for the first time, records related to an officer’s biased or discriminatory actions. Additionally, SB 776 ensures that officers with a history of misconduct can’t just quit their jobs, keep their records secret, and move on to continue bad behavior in another jurisdiction. SB 776 also establishes civil penalties for agencies that fail to release records in a timely manner and mandates that agencies can only charge for the cost of duplication.”
2. Background: The CPRA: Under the CPRA, the public is granted access to public records held by state and local agencies. (Gov. Code, § 6250 et seq.) “Modeled after the federal Freedom of Information Act (5 U.S.C. § 552 et seq.), the [CPRA] was enacted for the purpose of increasing freedom of information by giving members of the public access to records in the possession of state and local agencies. [Citation.] Such ‘access to information concerning the conduct of the people’s business,’ the Legislature declared, ‘is a fundamental and necessary right of every person in this state.’” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5^th 282, 290.) The purpose of the CPRA is to prevent secrecy in government and to contribute significantly to the public understanding of government activities. (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1016-1017.) That being said, this right of access is not absolute. In enacting the CPRA, the Legislature also declared it was “mindful of the right of individuals to privacy.” (Gov. Code, § 6250.)

In light of these dual concerns of privacy and disclosure, the CPRA includes a number of disclosure exemptions. (Govt. Code, § 6254-6255.) Agencies may refuse to disclose records that are exempted or prohibited from public disclosure pursuant to federal or state law. This includes Evidence Code provisions relating to privilege. (Gov. Code, § 6254, subd. (k).) But, even if a specific exception does not exist, an agency may refuse to disclose records if on balance, the interest of nondisclosure outweighs disclosure. (Govt. Code, § 6255.) “The specific exceptions of section 6254 should be viewed with the general philosophy of section 6255 in mind; that is, that records should be withheld from disclosure only where the public interest served by not making a record public outweighs the public interest served by the general policy of disclosure.” (53 Ops.Cal.Atty.Gen. 136 (1970).)

1. Discovery of Police Records in Criminal and Civil Proceedings: Notwithstanding the CPRA, until recently, both police investigatory records and police personnel records were generally protected from disclosure. (Gov. Code, § 6254, subd. (f); former Pen. Code, §§ 832.5 832.7, 832.8.) Before its amendment in 2018, Penal Code section 832.7 made specified peace officer records and information confidential and nondisclosable in any criminal or civil proceeding except pursuant to discovery under Evidence Code sections 1043 and 1046. (See Pen. Code, § 832.7, subd. (a), as amended by Stats. 2003, ch. 102, § 1, p. 809.) “The first category of confidential records pertained to ‘[p]eace officer or custodial officer personnel records,’ which included among other things certain records that relate to employee discipline or certain complaints and to investigations of complaints pertaining to how the officer performed his or her duties. (Ibid.; see § 832.8) The second category consisted of ‘records maintained by any state or local agency pursuant to section 832.5’ (former § 832.7, subd. (a)), which required ‘[e]ach department or agency in [California] that employs peace officers [to] establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies’ and further required such ‘[c]omplaints and any reports or findings relating’ to them be retained for “at least five years” and “maintained either in the peace or custodial officer’s general personnel file or in a separate file’ (§ 832.5, subds. (a)(1), (b); see also § 832.5, subds. (c), (d)(1)). The third category extended confidentiality to ‘information obtained from’ the prior two types of records. (Former § 832.7, subd. (a).)” (Becerra v. The Superior Court of the City of San Francisco (2020) 44 Cal.App.5th 897, 914-915.)

These statutes, along with Evidence Code sections 1043-1047, codified Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). In Pitchess, the California Supreme Court held that under certain circumstances, and upon an adequate showing, a criminal defendant may discover information from an officer’s otherwise-confidential personnel file that is relevant to his or her defense.

The Pitchess statutes require a criminal defendant to file a written motion that identifies and demonstrates good cause for the discovery sought. If such a showing is made, the trial court then reviews the law enforcement personnel records in camera with the custodian, and discloses to the defendant any relevant information from the personnel file. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) Any records disclosed are subject to a mandatory order that they be used only for the purpose of the court proceeding for which they were sought. (Id. at p. 1042.)

The Pitchess statutes reflect the Legislature’s attempt to balance the competing policy considerations of an officer’s confidentiality interest and a litigant’s interest in knowing about police misconduct. (Assn. for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5^th 41 (ALADS).) The California Supreme Court has stressed that weighing these competing policy interests is for the Legislature, not the courts, to make. (Copley-Press, Inc. v. Superior Court (2006) 39 Cal.4^th 1272, 1299.)

1. Senate Bill No. 1421 and General Public Access to Peace Officer Records: In 2018, again weighing these policy considerations, the Legislature passed SB 1421. This legislation amended Penal Code section 832.7 to loosen the protections afforded to specified peace officer records relating to certain use of force, sustained findings of sexual assault on a member of the public and pertaining to sustained findings of dishonesty in reporting, investigating, or prosecuting a crime. (Pen. Code, § 832.7, as amended by Stats. 2018, ch. 988, § 2, eff. Jan. 1, 2019.) Unlike the Pitchess statutes which addressed a litigant’s discovery interest, the purpose of SB 1421 was to give the general public “access to otherwise confidential police personnel records relating to serious police misconduct in an effort to increase transparency.” (Assem. Comm. on Pub. Safety, Analysis on Sen. Bill No. 1421 (2017-2018 Reg. Sess.) as amended June 19, 2018.)

As reflected in the committee analysis, SB 1421 was a step in furtherance of the California Supreme Court’s interpretation of the CPRA: “The California Supreme Court has found a policy favoring disclosure especially salient when the subject is law enforcement: In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers. (See Long Beach Officers Association (2015) 59 Cal.4th 59, 74, see also Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 297.) In Commission on Peace Officer Standards, supra, the Supreme Court noted:

“Given the extraordinary authority with which they are entrusted, the need for transparency, accountability and public access to information is particularly acute when the information sought involves the conduct of police officers. In Commission on Police Officer Standards, the Supreme Court observed, "The public's legitimate interest in the identity and activities of peace officers is even greater than its interest in those of the average public servant. 'Law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state. In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers.' [Citation.] 'It is indisputable that law enforcement is a primary function of local government and that the public has a far greater interest in the qualifications and conduct of law enforcement officers, even at, and perhaps especially at, an "on the street" level than in the qualifications and conduct of other comparably low-ranking government employees performing more proprietary functions. The abuse of a patrolman's office can have great potentiality for social harm ….'" (Commission on Police Officer Standards, at pp. 297–298, fn. omitted.)

(Assem. Comm. on Pub. Safety, Analysis on Sen. Bill No. 1421 (2017-2018 Reg. Sess.) as amended on June 19, 2018.) Release of the personnel records specified in SB 1421 was intended to promote public scrutiny of, and accountability for, law enforcement. (Ibid.)

In furtherance of the goal of public scrutiny of, and accountability for, law enforcement, SB 776 expands the categories of personnel records of peace officers and custodial officers that are subject to disclosure under the CPRA.

This bill would also increase a defendant’s access to discovery of otherwise-confidential peace officer records through the Pitchess process by removing the five-year limitation on relevance at trial and disclosure of information of an officer’s misconduct, and by requiring an agency to retain all complaints currently in its possession (rather than allowing an agency to destroy them after five years).

Additionally, this bill would require officer’s to immediately self-report all uses of force by the officer to the officer’s department or agency. And it would require a department or agency, prior to hiring an officer, to obtain and review the officer’s personnel or separate file containing records of any investigations of misconduct involving the officer.

1. Privacy: For public employees generally, the CPRA exempts from disclosure “[p]ersonnel, medical or similar files, the disclosure of which would constitute an unwarranted

invasion of personal privacy.” Govt. Code, § 6254, sub. (c).) There is an “inherent tension between the public's right to know and [the] society's interest in protecting private citizens (including public servants) from unwarranted invasions of privacy. [Citation.] One way to resolve this tension is to try to determine ‘the extent to which disclosure of the requested item of information will shed light on the public agency's performance of its duty.’” (Los Angeles Unified School Dist. v. Superior Court (2014) 228 Cal.App.4th 222, 241 [175 Cal. Rptr. 3d 90].)

“In Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548 [7 Cal.Rptr. 109, 354 P.2d 637] … , our Supreme Court concluded that complaints confidentially made to the State Bar regarding an attorney's professional conduct, and the investigations of those complaints, that do not result in public or private discipline, are confidential and not subject to disclosure. The rule serves two public interests. First, it protects the proper functioning of the bar's disciplinary system by ensuring people may file complaints without risk of creating a publicly accessible record and being subject to a libel action. [Citation.] [¶] Second, the rule of nondisclosure protects individual members of the bar from unwarranted attacks and accusations. [Citation.] ‘[The attorney] is not exposed to publicity where groundless charges are made. … The fact that a charge has been made against an attorney, no matter how guiltless the attorney might be, if generally known, would do the attorney irreparable harm even though he be cleared by the State Bar.’ [Citation.]” (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 757–758.)

This rule was applied to personnel records maintained by a school district in Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041, 1045-1046.) There, a newspaper sought complaints and disciplinary records of a school district employee. (Id. at pp. 1043–1044.) The trial court denied disclosure of records that were not substantial in nature but allowed disclosure as to complaints regarding one incident described as sexual-type conduct, threats of violence, and violence. The court found these complaints to be substantial in nature and reasonably well founded. (Ibid.) The Court of Appeal affirmed, finding that the disclosure of the complaints to the public does not turn upon a finding that the complaints were true or discipline was imposed. (Id. at p. 1046.) Rather, “[i]n evaluating whether a complaint against an employee is well-founded within the context of section 6250 et seq., both trial and appellate courts, … originally and upon review, are required to examine the documents presented to determine whether they reveal sufficient indicia of reliability to support a reasonable conclusion that the complaint was well founded. The courts must consider such indicia of reliability in performing their ultimate task of balancing the competing concerns of a public employee's right to privacy and the public interest served by disclosure. [Citations.]” (Id. at p. 1047; cf. Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 830–831 [“the fact that the charges against the officers were not substantiated [is a] factor[] which the court may weigh in deciding whether the public interest favors disclosure”].)

This bill would authorize release of unsustained and exonerated complaints against an officer. Whether or not the privacy exemption of Government Code section 6254, subdivision (c) applies to the peace officer records at issue here, Penal Code section 832.7, subdivision (b)(5)(C) contains its own privacy provision – an agency must redact a record to remove information if the disclosure would cause unwarranted invasion of privacy that clearly outweighs the strong public interest in records of misconduct by peace officers and custodial officers. This language largely mirrors language in Government Code section 6254, subdivision (c). However, redaction under Penal Code section 832.7, subdivision (b)(5)(C) is mandatory where privacy interests prevail. (Becerra v. The Superior Court of the City of San Francisco, supra, 44 Cal.App.5th at p. 925 [“only those provisions of law that conflict with” section 832.7(b)—“not … every provision of law”—are inapplicable”].)

The CPRA also has a catchall exemption where “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Govt. Code, § 6255, subd. (a).) As with the privacy exemption, Penal Code section 832.7, subdivision (b)(6), contains its own catchall exemption largely mirroring language of the CPRA – “an agency may redact a record disclosed pursuant to this section, including personal identifying information, where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information.” The tests under the catchall provision and the privacy provision are essentially the same. (BRV, Inc. v. Superior Court, supra, 143 Cal.App.4th at pp. 757–758.)

Given the reach of this bill, it appears redaction of the records at issue could be required in some circumstances to protect an officer’s privacy rights per Penal Code section 832.7, subdivision (b)(5)(C) as well as under the catchall provision of subdivision (b)(6).

1. First Amendment: In Garcetti v. Ceballos (2006) 547 U.S. 410, the United States Supreme court set the current standard to trigger First Amendment protection for government employee speech. To be protected, the speech must clear three hurdles: [1] it must be about a matter of public concern; [2] it must be made as a private citizen and not as part of the employee’s official duties; and [3] the interests of the employee in the speech must outweigh the interests of the employer in the safe, efficient, and effective accomplishment of its mission and purpose. (City of San Diego v. Roe (2004) 543 U.S. 77, 80 [there must be a sufficient nexus between the officer’s conduct and the impact of that conduct on the agency in order to discipline the officer without violating the officer’s First Amendment rights].)

The latter hurdle is the most difficult for police officers to overcome in light of the public safety mission and purpose of a law enforcement agency:

The effectiveness of a city’s police department depends on the perception in the community that it enforces the law fairly, even-handedly, and without bias . . . If the department treats a segment of the population of any race, religion, gender, national origin, sexual preference, etc., with contempt, so that the particular minority comes to regard the police as oppressor rather than protector, respect for law enforcement is eroded and the ability of the police to do its work in the community is impaired.

(Papps v. Giuliani (2^nd Cir. 2002) 290 F.3d 143.)

The reach of this bill includes disclosure of unsustained and exonerated complaints of officer misconduct relating to an incident involving group prejudice or discrimination, including, but not limited to, verbal statements, writings, online posts, recordings, and gestures. Though this bill does not require disciplinary action, could the public release of unsustained and exonerated complaints for which the officer was not disciplined nonetheless inadvertently implicate the First Amendment by chilling the officer’s free speech? (See Doe v. Reed (2010) 561 U.S. 186.)

To the extent that disclosure of records under this bill would be in tension with the First Amendment, the records may be subject to redaction under Penal Code section 832.7, subdivision (c)(5)(C), which exempts records from disclosure where such disclosure is “specifically prohibited by federal law.” (See also Govt. Code, § 6254, subd. (k) [under the CPRA, records are exempt from disclosure if “exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege”]; see also U.S. Const., art. VI, cl. 2 [the Supremacy Clause of the United States Constitution].)

1. Costs to Redact and Edit Police Records Subject to Disclosure under the CPRA: Government Code section 6253, subdivision (b) provides that the person requesting the public records pay fees “covering direct costs of duplication, or a statutory fee if applicable.” “As a general rule, a person who requests a copy of a government record under the act must pay only the costs of duplicating the record, and not other ancillary costs, such as the costs of redacting material that is statutorily exempt from public disclosure. ([Govt. Code,] § 6253, subd. (b); [], § 6253.9, subd. (a)(2); see County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1336 [89 Cal. Rptr. 3d 374] (County of Santa Clara).)” (See National Lawyers Guild v. City of Hayword (2020) 9 Cal.5^th 488, 491.)

This bill would clarify that the person requesting a copy of records under the CPRA must pay only the costs of duplicating the record – “direct costs of duplication” – not costs of editing or redaction.

1. Mandatory Civil Fine as Penalty for Untimely Disclosure of Police Records under the CPRA: The state may impose reasonable penalties as a means of securing obedience to statutes validly enacted. Civil penalties have become a means by which the legislature implements statutory policy. (Hale v. Morgan (1978) 22 Cal.3d 388, 398 (Hale).) The “Legislature does not violate due process so long as an enactment is procedurally fair and reasonably related to a proper legislative goal.” (Ibid.) “Courts have consistently assumed that ‘oppressive’ or ‘unreasonable’ statutory penalties may be invalidated as violative of due process.” (Id. at p. 399 [citation omitted].)

In Hale v. Morgan, supra, 22 Cal.3d 388, a statute, which at the time imposed a $100-per-day fine on landlords who interfered with their tenants’ occupancy, was held unconstitutional because the penalty was mandatory in amount and unlimited in duration. (See also Witkin, Summary of Cal. Law (2020) Torts, § 1740.) The Court distinguished another statute, which imposed a daily penalty for a continuing failure to pay wages due, because it limited the penalty to 30 days. (Hale v. Morgan, supra, 22 Cal.3d at p. 400.) The Court stated, “Uniformly, we have looked with disfavor on ever-mounting penalties….” (Id. at p. 401.) After Hale was decided, the California legislature amended the statute at issue to provide courts with discretion over the size of the award by directing the trial court to impose an amount ‘not to exceed’ $100 per day and directing the court to consider ‘proof of such matters as justice may require’ for purposes of determining the amount of the award. (See Kinney v. Vaccari (1980) 27 Cal.3d 348, 356 n.6 [explaining 1979 amendments to statute].)

The proposed Committee amendments amend this provision to provide that the court impose an amount not to exceed $1,000 per day.

1. Awarding Double Court Costs and Attorney’s Fees to Prevailing Party in Litigation filed Pursuant to the CPRA to Obtain Police Records: Generally, attorney fees are not allowed unless they are specifically authorized by agreement or statute. (Smith v. Krueger (1983) 150 Cal.App.3d 752, 756.) Government Code section 6259, subdivision (d) specifically allows a prevailing plaintiff in litigation filed pursuant to the CPRA to recover costs and reasonable attorney fees. (Govt. Code, § 6259, subd. (d).) “Section 6259 was enacted to carry out the purposes of the California Public Records Act. Through the device of awarding attorney fees, citizens can enforce its salutary objectives.” (Braun v. City of Taft (1984) 154 Cal.App.3d 332, 348-349.)

This bill would entitle a prevailing plaintiff in litigation over improperly held or redacted police personnel records to recover twice the party’s costs and attorney fees. Though this bill uses the word “damages,” there would never be any determination of actual damages that were suffered as result of the violation. However, given the importance of the information being sought – police misconduct – there may be some justification for awarding double costs and fees to someone who is forced to invoke the CPRA to get improperly withheld records. In any other instance, the prevailing party in CPRA litigation only recovers actual costs and fees.

For clarity, the proposed Committee amendments specify that this provision of this bill would apply “notwithstanding Government Code Section 6259, subdivision (d),” and delete the term “damages.”

1. Attorney-Client Privilege as Applied to Disclosure of Police Records under the CPRA:
   1. Background: “The attorney-client privilege incorporated into the [C]PRA by section 6254(k) [of the Government Code] is described in Evidence Code section 950 et seq., enacted in 1965. (See Evid. Code, div. 8, ch. 4, art. 3 [‘Lawyer-Client Privilege’].) This privilege . . . holds a special place in the law of our state. (See Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599 [208 Cal.Rptr. 886, 691 P.2d 642] (Mitchell) [‘The attorney-client privilege has been a hallmark of Anglo-American jurisprudence for almost 400 years.’].) And for good reason: its ‘fundamental purpose … is to safeguard the confidential relationship between clients and their attorneys so as to promote full and [frank] discussion of the facts and tactics surrounding individual legal matters.’ (Ibid. [‘the public policy fostered by the privilege seeks to insure “the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense’”].)” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5^th 282, 292 (Los Angeles County).)

There are several statutory exceptions to the attorney-client privilege. (See Evid. Code, §§ 956-962.) As the United States Supreme Court has noted: “The reasons for protecting the ‘confidences of wrongdoers’ ‘ceas[e] to operate . . . where the desired advice refers not to prior wrongdoing, but to future wrongdoing.’” (United States v. Zolin (1989) 491 U.S. 554, 562–63.) Accordingly, California has two exceptions based on future wrongdoing -- communications involving an intent to do future harm (Evid. Code, § 956.5) and matters of fraud (Evid. Code, § 956). California also has statutory exceptions related to a deceased client (Evid. Code, §§ 957, 960, 961), communications relevant to breach of duty arising out of the attorney-client relationship (Evid. Code, § 958), where the attorney is an attesting witness regarding the intent of competence of a client executing an attested document (Evid. Code, § 959), and as to joint clients when the communication is offered in a civil proceeding, as specified (Evid. Code, § 962).

• 1. Factual Investigation: This bill would create another statutory exception to the attorney-client privilege. For purposes of releasing police records under the CPRA, the attorney-client privilege could not be asserted to limit the disclosure of factual information provided by the public entity to its attorney, factual information discovered by any investigation done by the public entity’s attorney, or billing records related to the work done by the attorney. This provision of the bill involves dual policy considerations of police transparency and public entities’ need for confidential legal advice. Does limiting the exception to factual information and billing records strike the best balance of these interests?

[C]ourts recognize that public entities need confidential legal advice to the same extent as do private clients: “‘Government should have no advantage in legal strife; neither should it be a second-class citizen. . . . “Public agencies face the same hard realities as other civil litigants. An attorney who cannot confer with his client outside his opponent's presence may be under insurmountable handicaps. . . .” Settlement and avoidance of litigation are particularly sensitive activities, whose conduct would be grossly confounded, often made impossible, by undiscriminating insistence on open lawyer-client conferences.’” (Sutter Sensible Planning[ (1981)] 122 Cal.App.3d [813,] 824-825.)

(Roberts v. City of Palmdale (1993) 5 Cal.4^th 363, 374.)

Proponents of this provision of the bill argue this exception to the attorney-client privilege is necessary to obtain factual information when the public entity hires outside counsel to conduct the misconduct investigation and then asserts the privilege to avoid disclosing the information discovered through that investigation. However, hiring an attorney does not necessarily make the investigation privileged. There are parameters to the privilege under California case law. In City of Petaluma v. Superior Court (2016) 248 Cal.App.4^th 1023, the California Court of Appeal held that a privileged relationship exists where the attorney is providing a legal service through the attorney’s investigative expertise without providing any legal advice. (City of Petaluma v. Superior Court (2016) 248 Cal.App.4^th 1023, 1027.) There, the attorney rendered a legal service because she was “expected to use her legal expertise” to “identify the pertinent facts, synthesize the evidence, and come to a conclusion as to what actually happened.”(Id. at p. 1035.) But not all attorney-led investigations amount to legal service. If the attorney engaged in “routine fact-finding” rather than “legal work,” no legal service was provided. (Ibid.)

In light of the current body of case law addressing this issue, is this provision of the bill necessary? Moreover, given the broad language of this provision, it appears to implicate an agency’s ability to claim the attorney-client privilege as to factual information provided to the agency’s attorney even when related to a lawsuit in which the agency itself is a party.

• 1. Billing Records: In Los Angeles County, a CPRA matter, the California Supreme Court held that billing statements are not “categorically privileged,” but “[w]hen a legal matter remains pending and active, the privilege encompasses everything in an invoice, including the amount of aggregate fees.” (Los Angeles County, supra, 2 Cal.5^th at p. 297.) That is because, “[t]o the extent that billing information is conveyed ‘for the purpose of legal representation’—perhaps to inform the client of the nature or amount of work occurring in connection with a pending legal issue—such information lies in the heartland of the attorney-client privilege. And even if the information is more general, such as aggregate figures describing the total amount spent on continuing litigation during a given quarter or year, it may come close enough to this heartland to threaten the confidentiality of information directly relevant to the attorney's distinctive professional role. The attorney-client privilege protects the confidentiality of information in both those categories, even if the information happens to be transmitted in a document that is not itself categorically privileged.” (Ibid.; see also County of Los Angeles Board of Supervisors v. Superior Court (2017) 12 Cal.App.5th 1264 [“Los Angeles County teaches that invoices related to pending or ongoing litigation are privileged and are not subject to [C]PRA disclosure”].)

The Court noted “the same may not be true for fee totals in legal matters that concluded long ago. In contrast to information involving a pending case, a cumulative fee total for a long-completed matter does not always reveal the substance of legal consultation.” (Los Angeles County, supra, 2 Cal.5^th at p. 298.) Thus some portions of attorney fee invoices on matters that have been closed may not be protected by the attorney-client privilege.

The Court concluded it was not necessary to require “a categorical bar on disclosure of a government agency's expenditures for any legal matter, past or present, active or inactive, open or closed.” (Id. at p. 300.) The Court explained that though the CPRA “carves out an exemption for privileged portions of government records, ‘[t]he fact that parts of a requested document fall within the terms of an exemption does not justify withholding the entire document.’ [Citation.] Instead, government agencies must disclose “[a]ny reasonably segregable portion” of a public record “after deletion of the portions that are exempted by law.” ([Govt. Code, ]§ 6253, subd. (a).) (Los Angeles County, supra, 2 Cal.5^th at p. 297.)

Does balancing the need for police transparency and a public entity’s need for confidential legal advice warrant creating a new statutory exception to the attorney-client privilege for these billing records under the CPRA? Moreover, as noted ante, given the broad language of this provision, it appears to implicate an agency’s ability to claim the attorney-client privilege as to its billing records even when related to a lawsuit in which the agency itself is a party.

(d) Pending Litigation Exception under the CPRA: In addition to incorporating the attorney-client privilege, the CPRA also provides an exemption for pending litigation to which a public agency is a party. (Govt. Code, § 6254, subd. (b).) It is not entirely clear whether the provision of this bill creating an exception to attorney-client privilege for factual information and billing records overrides this exemption. Arguably, it does not contradict the pending litigation exemption, and thus shouldn’t trump it. (Becerra v. The Superior Court of the City of San Francisco, supra, 44 Cal.App.5th at p. 925.)

1. Due Process and Equal Protection: Currently there is a litigation pending in New York regarding release of unsubstantiated and non-final disciplinary records of police officers, firefighters, and corrections officers. (https://www.democratandchronicle.com/story/news/politics/albany/2020/07/16/judge-blocks-nyc-releasing-police-discipline-records-now/5452652002/ [as of 7/23/2020].)

The suit raises federal due process and equal protection claims. (https://www.documentcloud.org/documents/6990185-154982-2020-Uniformed-Fire-Officer-v-Uniformed.html [as of 7/23/2020].)

1. Argument in Support: According to the American Civil Liberties Union of California, “[SB 776] expands the types of peace officer misconduct records that would be available to the public in an effort to further improve and expand law enforcement transparency and accountability.

“The California legislature significantly improved law enforcement transparency with the passage of SB 1421 (Skinner, Chapter 988, Statutes of 2018). That bill expanded Penal Code 832.7 by piercing the secrecy that shrouds deadly uses of force and serious officer misconduct by providing public access to information about these critical incidents, such as when an officer shoots, kills, or seriously injures a member of the public, is proven to have sexually assaulted a member of the public, or is proven to have planted evidence, committed perjury, or otherwise been dishonest in the reporting, investigation, or prosecution of a crime. Access to records of how departments handle these serious uses – and abuses – of police power is necessary to allow the public to make informed judgments about whether existing processes and infrastructures are adequate.

“Following the killings of George Floyd, Breonna Taylor, Ahmaud Arbery, Sean Monterrosa, Erik Salgado, Andres Guardado, and many others, people across the nation are asking elected officials to divest from police, increase accountability and oversight, and reinvest in communities. SB 776 is one of several attempts by the Legislature to strengthen accountability by increasing the law enforcement records available to the public.

“Specifically, SB 776 requires all law enforcement agencies to retain records of misconduct

indefinitely, eliminating the current five-year retention period. It also removes the requirement of complaints needing to be sustained for those records to be publicly available in the areas of use of force, sexual assault, or dishonesty, so long as the underlying complaint is found to be nonfrivolous. Additionally, it expands access to complaint records capturing bias against protected classes so long as the underlying complaint is found to be non-frivolous. The bill would also allow records relating to wrongful arrests and wrongful searches to be public so long as these records were sustained by an investigating agency.

“Notably, the bill also seeks to address the issue of peace officers resigning during an investigation in attempt to stop a sustained finding of misconduct. SB 776 would require the release of records relating to investigations in these categories, although the peace officer resigned before the investigating agency concluded its investigation. This is critically important because resigning to avoid a finding of misconduct is a major loophole that peace officers often use to avoid accountability, frequently to be hired by another law enforcement agency.

“Lastly, the bill would provide safeguards for families that seek to uncover these public records on their own but are prevented due to extraordinary costs placed by the agency to produce these public documents. The bill makes clear that an agency cannot include costs of editing or redacting these records and can charge only reasonable fees for duplication. To increase accountability on the producing law enforcement agencies, the bill also imposes a civil fine of $1,000 per day for each day the records are not disclosed 30 days after the initial request.

“This bill continues to chip away at the multiple levels of policy secrecy in California, building upon the initial gains of SB 1421….”

1. Argument in Opposition: According to the Peace Officers Research Association of California, “SB 776 is over-broad and places an innocent officer’s career and personal life in

jeopardy. PORAC would be willing to discuss expanding the use of force disclosures to other types of injuries, in addition to death and GBI. Perhaps, re-defining ‘serious injury’ to include more types of injuries would be helpful, in lieu of the current language which applies to all uses of force.

“Regarding the release of not-sustained dishonesty or sexual assault investigations, PORAC is very opposed. Peace officers should not have to defend themselves with the public, or with their family and friends, if the investigation has already shown that they did their jobs correctly. We would ask that only sustained complaints be released.

“Finally, PORAC believes that requiring an officer to self-report all uses of force is extremely overbroad since many agencies define any laying of hands on an individual as ‘force.’

“To reiterate, PORAC is willing to discuss the expansion of what is released when using force. We also support the mandatory reporting of an officer who retires in lieu of an investigation for certain serious allegations. Lastly, PORAC continues to support the release of sustained investigations for dishonesty and sexual assault when added to the potential of creating a POST certificate revocation system, as is being proposed by SB 731 by Senator Bradford. Combined with this measure, an officer who has sustained serious misconduct will not only have the misconduct made public, but will likely never work as a peace officer in California again….”

1. Related Legislation:
   1. SB 731 (Bradford) would disqualify a person from being employed as a peace officer if that person has a certificate issued by POST and that certificate has been revoked by POST. SB 731 is scheduled to be heard in this Committee on August 5, 2020.
   2. SB 1220 (Umberg) would require any law enforcement agency to, upon request, provide a prosecuting agency a list of names and badge numbers of officers who have had sustained findings of specified misconduct or group bias, been convicted of certain criminal offenses, or are facing criminal charges, and establishes a procedure for the officer to contest their inclusion on the list. SB 1220 is scheduled to be heard in this Committee on August 5, 2020.
   3. AB 1299 (Salas) would create a rubric at the Commission on Peace Officer Standards and Training (POST) for information on investigations and results of sustained findings of misconduct to be housed and accessed by law enforcement agencies conducting pre-employment background investigations on candidates for employment. AB 1299 is scheduled to be heard in the Senate Public Safety Committee on July 31, 2020.
   4. AB 1599 (Cunningham) would, commencing January 1, 2021, require law enforcement agencies to complete initiated administrative investigations of officer misconduct as related to specified uses of force, sexual assault, and dishonesty regardless of whether an officer leaves the employment of the agency. AB 1599 is scheduled to be heard in the Senate Public Safety Committee on July 31, 2020.
2. Prior Legislation:
   
   1. SB 1421 (Skinner), Chapter 988, Statutes of 2018, subjects specified personnel records of peace officers and correctional officers to disclosure under the CPRA.
   2. AB 1957 (Quirk), of the 2015-2016 Legislative Session, would have provided a set of procedures for disclosing footage from a law enforcement officer's body-worn camera. AB 1957 failed passage on the Assembly Floor.
      
   3. SB 1286 (Leno), of the 2015-2016 Legislative Session, would have provided 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. SB 1286 was held in the Senate Appropriations Committee.
      
   4. SB 1019 (Romero), of the 2007-2008 Legislative Session, would have abrogated the holding in Copley Press, supra, 39 Cal.4th 1272, for law enforcement agencies operating under a federal consent decree on the basis of police misconduct. SB 1019 failed passage in the Assembly Public Safety Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda; City of
Alliance for Boys and Men of Color
American Civil Liberties Union/northern California/southern California/san Diego and Imperial Counties
Asian Solidarity Collective
California Attorneys for Criminal Justice
California Innocence Coalition: Northern California Innocence Project, California Innocence Project, Loyola Project for The Innocent
California Newspaper Publishers Association
California Pan - Ethnic Health Network
California Public Defenders Association
Californians for Safety and Justice

Disability Rights California
Drug Policy Alliance
First Amendment Coalition
Friends Committee on Legislation of California
League of Women Voters of California
National Association of Social Workers, California Chapter
Oakland; City of

Pillars of the Community

San Francisco District Attorney’s Office
San Francisco Public Defender

Think Dignity
Voices for Progress

We the People

Opposition

California Association of Highway Patrolmen
California Law Enforcement Association of Records Supervisors (CLEARS)
California Peace Officers Association
California State Sheriffs' Association

League of California Cities
Peace Officers Research Association of California (PORAC)

Analysis Prepared by: Cheryl Anderson / PUB. S. / (916) 319-3744

1. According to the discussion of Rule 3-100, paragraph 13: “Rule 3-100 is not intended to augment, diminish, or preclude reliance upon, any other exceptions to the duty to preserve the confidentiality of client information recognized under California law. (Added by order of the Supreme Court, operative July 1, 2004.)” ↑

 THIRD READING  

Bill No: SB 776

Author: Skinner (D)

Amended: 1/6/20

Vote: 21

SENATE EDUCATION COMMITTEE: 7-0, 1/15/20

AYES: Leyva, Wilk, Chang, Durazo, Glazer, McGuire, Pan

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: College admissions: criminal history inquiry: prohibition

SOURCE: Author

DIGEST:

This bill prohibits a public or private postsecondary educational institution in this state from inquiring about a prospective student’s criminal history on an initial application form or at any time during the admissions process before the institution’s final decision relative to the prospective student’s application for admission.

ANALYSIS: Existing law establishes the California Community Colleges (CCC), the California State University (CSU), the University of California (UC), independent institutions of higher education and private postsecondary educational institutions as the segments of postsecondary education in this state. (Education Code § 66010.95)

This bill prohibits a public or private postsecondary educational institution in this state from inquiring about a prospective student’s criminal history on an initial application form or at any time during the admissions process before the institution’s final decision relative to the prospective student’s application for admission.

Comments

1. Need for the bill. According to the author, “Despite the significant research demonstrating that colleges and universities that admit students with prior justice system involvement face no greater safety threats than those that do not, there remain numerous barriers that the limit students with arrest and conviction histories from reaching their educational goals and potential in California.” The author further asserts that, “… Although California’s public postsecondary institutions have a practice of not requesting conviction history information in undergraduate admissions, there is a very different practices and considerations of arrest and conviction history information in admissions among graduate-level programs of both public and private postsecondary institutions in California, as well as among undergraduate admissions to private post-secondary institutions in California. In practice, this means applicants must adjust their disclosure for every school and can easily make mistakes. Students who mis-report or under-report their arrest or conviction history on such applications face severe potential consequences such as being kicked out of school at any time, regardless of their rehabilitation, the time that has passed since their justice system involvement, or the resources they have invested into their higher education.” Proponents of the bill also note that these practices have a disparate impact on low-income individuals and people of color.

This bill seeks to remove college admission barriers for individuals with criminal histories.

1. Undergraduate admission criteria. As noted in the author’s statement above, the public higher education institutions, (CCC, CSU, and UC) do not request criminal history information on their respective undergraduate applications for admission. The practice for private colleges is mixed. According to a 2016 report by the U.S. Department of Education, “Beyond the Box,” nearly 700 colleges and universities (nationwide) use the Common Application, an undergraduate college admission application which in 2006 began requiring students to indicate if they have been “adjudicated guilty or convicted of a misdemeanor, felony or other crime.” However, in 2019, the collection of criminal history information was removed from the application. Some colleges continue to request the information using a supplemental form. It does not appear that asking about criminal history on college admission applications is widespread but it does happen. This bill prohibits that practice.
2. Licensure and credentialing requirements not impacted. Certain areas of study (e.g. teaching, social work or criminal justice) require additional criteria for licensure or credentialing qualifications in which some applicants may not meet the criteria. Applying for college and meeting licensure requirements are two separate processes. Licensure and credentialing requirements are set by agencies that are not controlled by or affiliated with a university and requirements can change. For example, credentialing requirements can include successfully passing a criminal background check. Students are responsible for determining whether they can meet licensure or credentialing requirements. However, in practice it’s not uncommon for graduate-level programs (public or private) to probe applicants for information about their criminal history in anticipation of licensure or credential. This bill seeks to prohibit colleges from prescreening applicants during the admission process, including those applying for admittance into programs that may require additional criteria to practice in the field of study.
3. College access for formerly incarcerated and currently incarcerated individuals improving at public institutions. In recent years, academic opportunities for justice-impacted individuals have improved. This is largely due to SB 1391 (Hancock, Chapter 695, Statutes of 2014) that allowed community colleges to teach face-to face in prison and collect state apportionment for those students. Public colleges have taken steps to expand college access and encourage degree attainment by offering courses to students in prison and by offering support services for formerly incarcerated students on campus California community colleges now teach face-to-face transferable degree-building college courses in 34 of the state’s 35 prisons. Additionally, the number of on-campus support programs (i.e. Project Rebound and Underground Scholars) for formerly incarcerated students at CSU, UC and CCC have grown. This bill appears to align with those efforts.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 1/21/20)

Anti-Recidivism Coalition

Californians for Safety and Justice

Ella Baker Center for Human Rights

Five Keys

National Association of Social Workers, California Chapter

National Employment Law Project

New Earth

Time for Change Foundation

Unlock Higher Education

Western Center on Law and Poverty

One individual

OPPOSITION: (Verified 1/21/20)

None received

Prepared by: Olgalilia Ramirez / ED. /

1/22/20 15:23:51

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SENATE COMMITTEE ON EDUCATION

Senator Connie Leyva, Chair

2019 - 2020 Regular

Bill No: SB 776 Hearing Date: January 15, 2020

Subject: College admissions: criminal history inquiry: prohibition.

SUMMARY

This bill prohibits a public or private postsecondary educational institution in this state from inquiring about a prospective student’s criminal history on an initial application form or at any time during the admissions process before the institution’s final decision relative to the prospective student’s application for admission.

BACKGROUND

Existing law establishes the California Community Colleges (CCC), the California State University (CSU), the University of California (UC), independent institutions of higher education and private postsecondary educational institutions as the segments of postsecondary education in this state. (Education Code § 66010.95)

ANALYSIS

This bill prohibits a public or private postsecondary educational institution in this state from inquiring about a prospective student’s criminal history on an initial application form or at any time during the admissions process before the institution’s final decision relative to the prospective student’s application for admission.

STAFF COMMENTS

1. Need for the bill. According to the author, “Despite the significant research demonstrating that colleges and universities that admit students with prior justice system involvement face no greater safety threats than those that do not, there remain numerous barriers that the limit students with arrest and conviction histories from reaching their educational goals and potential in California.” The author further asserts that,”… Although California’s public postsecondary institutions have a practice of not requesting conviction history information in undergraduate admissions, there is a very different practices and considerations of arrest and conviction history information in admissions among graduate-level programs of both public and private postsecondary institutions in California, as well as among undergraduate admissions to private post-secondary institutions in California. In practice, this means applicants must adjust their disclosure for every school and can easily make mistakes. Students who mis-report or under-report their arrest or conviction history on such applications face severe potential consequences such as being kicked out of school at any time, regardless of their rehabilitation, the time that has passed since their justice system involvement, or the resources they have invested into their higher education.” Proponents of the measure also note that these practices have a disparate impact on low-income individuals and people of color.

This bill seeks to remove college admission barriers for individuals with criminal histories.

1. Undergraduate admission criteria. As noted in the author’s statement above, the public higher education institutions, (CCC, CSU, and UC) do not request criminal history information on their respective undergraduate applications for admission. The practice for private colleges is mixed. According to a 2016 report by the U.S. Department of Education, “Beyond the Box,” nearly 700 colleges and universities (nationwide) use the Common Application, an undergraduate college admission application which in 2006 began requiring students to indicate if they have been “adjudicated guilty or convicted of a misdemeanor, felony or other crime.” However, in 2019, the collection of criminal history information was removed from the application. Some colleges continue to request the information using a supplemental form. It does not appear that asking about criminal history on college admission applications is widespread but it does happen. This bill would prohibit that practice.
2. Licensure and credentialing requirements not impacted. Certain areas of study (e.g. teaching, social work or criminal justice) require additional criteria for licensure or credentialing qualifications in which some applicants may not meet the criteria. Applying for college and meeting licensure requirements are two separate processes. Licensure and credentialing requirements are set by agencies that are not controlled by or affiliated with a university and requirements can change. For example, credentialing requirements can include successfully passing a criminal background check. Students are responsible for determining whether they can meet licensure or credentialing requirements. However, in practice it’s not uncommon for graduate-level programs (public or private) to probe applicants for information about their criminal history in anticipation of licensure or credential. This measure seeks to prohibit colleges from prescreening applicants during the admission process, including those applying for admittance into programs that may require additional criteria to practice in the field of study.
3. College access for formerly incarcerated and currently incarcerated individuals improving at public institutions. In recent years, academic opportunities for justice-impacted individuals have improved. This is largely due to SB 1391 (Hancock, Chapter 695, Statutes of 2014) that allowed community colleges to teach face-to face in prison and collect state apportionment for those students. Public colleges have taken steps to expand college access and encourage degree attainment by offering courses to students in prison and by offering support services for formerly incarcerated students on campus California Community colleges now teach face-to-face transferable degree-building college courses in 34 of the state’s 35 prisons. Additionally, the number of on-campus support programs (i.e. Project Rebound and Underground Scholars) for formerly incarcerated students at CSU, UC and CCC have grown. This bill appears to align with those actions.

SUPPORT

Anti-Recidivism Coalition

Californians for Safety and Justice

Ella Baker Center for Human Rights

Five Keys

National Employment Law Project

New Earth

Time for Change Foundation

Unlock Higher Education

Western Center on Law and Poverty

OPPOSITION

None received

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