SB 16 Compliance: Expand Public Access to Law Enforcement Personnel Records for 2022 and Beyond | Best Best & Krieger LLP

BB&K to host webinar on SB 16 and agency’s duties to produce police records under the Public Archives Act

New police records rules requiring additional disclosures of personnel records will come into effect next year with SB 16, which builds on the SB 1421 benchmark. The new law adds many categories to the four mandates of disclosure, and every California law enforcement agency should expect to receive claims in every new category.

Some of the provisions of SB 16 will take effect immediately, while others will not take effect until January 1, 2023.

Immediate implementation
As of January 1, 2022, the following new procedural and substantive rules will apply to the retention and production of documents currently mandated for disclosure under article 832.7 of the Criminal Code:

  • Records without a finding of sustained misconduct should be retained for at least 5 years and records relating to sustained misconduct should be retained for at least 15 years.
  • Records relating to an incomplete investigation should be disclosed if an officer resigned during the investigation.
  • Whistleblowers and victims will be added to the list of people whose identity must be kept confidential.
  • Records should be provided as “as soon as possible” and no later than 45 days from the date of a request for disclosure, unless the law specifically allows more time to respond.
  • An agency may charge only the direct cost of duplication for the production of such documents, in accordance with the Law on Public Archives, and may not charge for researching or drafting documents.
  • Solicitor-client privilege does not preclude the disclosure of factual information provided by the public entity to its lawyer or factual information uncovered in an investigation conducted by or on behalf of the public entity’s lawyer. Additionally, the lien will not cover attorneys’ billing records unless the records relate to legal consultation between the public entity and its attorney in an active and ongoing litigation.
  • A public body that hires a peace officer must review all records for disclosure under section 832.7 before hiring the officer.

Delayed implementation
SB 16 also adds four new categories of supported findings of misconduct that trigger disclosure.

The new disclosure categories are:

  • a sustained conclusion regarding a complaint alleging unreasonable or excessive force;
  • a sustained finding that an officer did not intervene against another officer using patently unreasonable or excessive force;
  • a sustained finding by a law enforcement or oversight body that a peace officer or guard has engaged in conduct, including, but not limited to, verbal statements, writings, online publications, recordings and gestures involving prejudice or discrimination against a person on the basis of race, religious belief, 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; and,
  • a sustained finding made by a law enforcement or oversight body that the peace officer made an unlawful arrest or an unlawful search.

The bill provides for a grace period for the review and production of qualifying acts that occur before January 1, 2022. The implementation of pending cases, that is, newly disclosed cases related to acts that occurred before 2022, is delayed to January 1, 2023. For all disclosure categories, including new ones categories, the files of incidents occurring from January 1, 2022 must be produced within the deadlines set in article 832.7.

This means, for example, that an act that occurs on December 31, 2021 and results in a sustained finding of excessive use of force should not be disclosed until January 1, 2023. However, an act that occurs on 1 January 2022 and leads to a sustained conclusion of excessive use of force has no safe harbor deadline. Therefore, the law of January 1, 2022 must be treated according to the same timetable provisions as an incident involving the unloading of a firearm, an original category SB 1421. In this case, there now exists, along with SB 16 , a presumption that disclosure must “as soon as possible and no later than 45 days from the date of a request for disclosure” unless another provision of section 832.7 allows for a delay, for example for example, under section 832.7 (b) (8), due to an active criminal or administrative investigation.

Questions and Tips – BB&K Webinar
There is some ambiguity in the wording of the delayed implementation provisions of SB 16. In view of this ambiguity and the important changes introduced by SB 16, agencies should immediately start preparing for implementation. In support of this commitment, BB&K will host the free webinar following December 15th.

Amendments to the Law on Public Archives regarding law enforcement and personnel records
This 90-minute webinar will highlight revised provisions of the California Public Records Act that change an agency’s obligations with respect to police records. The new law, SB 16, includes various procedural and substantive changes. BB&K lawyers will discuss the changes to the law and provide our interpretation on some of the more confusing and technical provisions. We will also be ready to answer your questions. Full details can be found below and interested parties can register here.

[View source.]

About Michael C. Lovelace

Check Also

Mayor of Palm Bay, Medina honors law enforcement officers who have lost their lives in the line of duty

Palm Bay Police Corporal Frank Tobar died in 2019 due to complications from COVID-19 Palm …