SB 16: Expands public access to peace officer personnel records

Under growing demand for accountability of law enforcement agencies, California enacted Senate Bill 1421 in 2019, making several types of previously confidential peace officer personnel records publicly accessible. The Legislature continued this trend this year in SB 16, which took effect January 1, 2022.

Historically, peace officer personnel records (and the information contained therein) could not be disclosed outside the employing agency without compliance with the Penal Code Section 832.7 and Evidence Code Section 1043, et seq., commonly called the "Pitchess statutes." See Pitchess v. Superior Court, 11 Cal. 3d 531 (1974).

SB 1421 removed Pitchess protection from a sub-set of records, i.e., those pertaining to officer-involved shootings, uses of force resulting in death or great bodily injury, sustained findings of dishonesty in investigations, and sustained findings of sexual assault. The records that must be disclosed include all investigative reports; audio, photo and video evidence; interviews; autopsy reports; all materials presented for review to determine whether to file criminal charges against an officer or for potential discipline; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident.

SB 16 goes even farther and removes Pitchess protection from the following types of records:

• Records of sustained findings involving complaints alleging unreasonable or excessive force;

• Records of sustained findings that an officer failed to intervene against another officer using force that was clearly unreasonable or excessive;

• Records of sustained findings that an officer engaged in conduct involving prejudice or discrimination on the basis of race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, or gender;

• Records of sustained findings that an officer made an unlawful arrest or conducted an unlawful search.

SB 16 also makes public any records where the officer resigned during the investigation for these four categories, plus records of dishonesty and sexual misconduct. SB 16 disallows use of the attorney-client privilege to deny release of information provided to or discovered by lawyers in these types of investigations, and some legal billing records. Further, it creates rigid timelines for the release of documents, which go into effect in 2023.

SB 16 establishes that if an officer committed misconduct that still falls within Pitchess protection, information about those allegations would remain confidential; however, factual information about that officer that was relevant to a finding that is not Pitchess-protected against another officer must be released.

SB 16 also adds a requirement that officer "immediately" report all uses of force by that officer to his or her employing agency, but the statute does not contain a definition of "use of force."

Existing law required agencies to establish procedures to investigate complaints by the public, and to keep for five years any records of these complaints, including related findings or reports regarding the complaints. SB 16 extends the records retention requirement so that that agencies must retain records at least five years (where the complaint was not sustained) to 15 years (for sustained findings). For records that already exist, these five- and 15-year clocks began running on January 1, 2022, rather than the date the records are created.

The new law also prohibits agencies from destroying any record while a request related to that record is being processed, or while any process or litigation is ongoing to determine whether that record is to be released. SB 16 eliminates the previous requirement that courts exclude evidence of complaints concerning conduct by officers that occurred more than five years before the event that is the subject of litigation.

Finally, SB 16 now obligates agencies, as part of the hiring process, to request and review any lateral officer's personnel file from any previous employing agency.

In sum, SB 16 significantly expands the scope of peace officer personnel records that are no longer confidential and it requires longer retention of records. Public agencies should review the new law and make sure that they have appropriate staffing and processes in place to assure compliance with the law's new disclosure, retention and other obligations. 