What is SB 1421?
Lawmakers passed the landmark “Right to Know Act” in 2018, chipping away at a four-decade wall of secrecy concerning police internal investigations and officer discipline in California. SB 1421 makes public three categories of records:
- Use-of-Force: Records of investigations and findings about use of force that results in a serious injury or death.
- Sexual Assault: Records made when an agency determines that a California peace officer committed sexual assault on the job.
- Official Dishonesty: Records made when an agency determines that an officer was dishonest on the job, affecting the reporting, investigation or prosecution of a
Governor Signs SB 1421 and AB 748, Dramatically Increasing Public Access to Peace Officer Personnel Records
On September 30, 2018, Governor Edmund G. Brown, Jr. signed two significant pieces of legislation, Senate Bill 1421 and Assembly Bill 748, that will require major changes in how law enforcement agencies respond to requests for peace officer personnel records.
In short, these two statutes will allow members of the public to obtain certain peace officer personnel records that were previously available only through the Pitchess procedure by making a request under the California Public Records Act (“CPRA”) request.
Effective January 1, 2019, SB 1421 amends Government Code Section 832.7 to generally require disclosure of records and information relating to the following types of incidents in response to a request under the CPRA:
- Records relating to the report, investigation, or findings of an incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
- Records relating to the report, investigation or findings of an incident in which the use of force by a peace officer or custodial officer against a person results in death or great bodily injury.
- Records 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. “Sexual assault” is defined for the purposes of section 832.7 as the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or any other official favor, or under the color of authority. The propositioning for or commission of any sexual act while on duty is considered a sexual assault.
- Records relating to an incident in which a sustained finding 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 of evidence or falsifying or concealing of evidence.
AB 748 requires agencies, effective July 1, 2019, to produce video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury, in response to CPRA requests.
These statutes have different timelines for production of records, and different circumstances under which production of records can be delayed or records can be withheld. Further, agencies may wish to evaluate their document retention policies in light of these new disclosure requirements. Agencies should work closely with trusted legal counsel to ensure compliance with both statutes.
AB 748 requires agencies, effective July 1, 2019, to produce video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury, in response to CPRA requests.
These statutes have different timelines for production of records, and different circumstances under which production of records can be delayed or records can be withheld. Further, agencies may wish to evaluate their document retention policies in light of these new disclosure requirements. Agencies should work closely with trusted legal counsel to ensure compliance with both statutes. source
CA Laws Intersect to Create New, More Immediate Disclosure Obligations for Police Recordings
By Christine N. Wood, Best Best & Krieger LLP
Now, more than ever, Californians have greater access to police personnel records, body and dashboard camera footage and other recordings acquired by police agencies due to companion laws Senate Bill 1821 and Assembly Bill 748. Signed into law in 2018, these laws alter the way law enforcement agencies respond to California Public Records Act requests for records relating to critical incidents.
Agencies have operated under the authority of these laws since January 2019 (SB 1421) and July 2019 (AB 748), but questions remain about permitted delays and redactions, privacy, criminal proceedings and internal investigations. Agencies did receive some disclosure clarity earlier this year when a judge held that, while SB 1421 applies prospectively, it still requires an agency to publicly release pre-2019 police personnel records it maintains in response to CPRA requests to critical incidents.
However, further case law doesn’t yet exist to help responding agencies answer many of the outstanding questions.
Without court opinions to guide an agency’s practices, agencies can look to the legislative intent of the bills to better understand what images and data are subject to redaction, the limited circumstances that warrant a delay in a record’s release and privacy interests often associated with these types of records.
Closed Off and Confidential
Prior to SB 1421 and AB 748, California was one of the most secretive states when it came to the release of video, audio and other records relating to critical incidents. Generally, exempt from public disclosure under the CPRA, they were protected as investigatory files or confidential police officer personnel records.
Then, courts and policies shifted.
Beginning in 2016 with the California Court of Appeal’s ruling in City of Eureka v. Superior Court, the court held that police “dashcam” footage was not protected as a confidential personnel record simply because it might later be used by a police department in connection with a complaint or investigation.
Next came the Los Angeles Police Department’s Critical Incident Video Release Policy, which, revised in 2018, stated that the Department would release to the public video of critical incidents within 45 days of the incident.
At the same time, California lawmakers were grappling with how to mandate similar access statewide. Their debate centered on how to increase transparency while also respecting the privacy rights at issue, and the new LAPD policy provided them a roadmap.
Enter SB 1421 and AB 748.
Critical Incidents Spark Release
Under both laws, the general principles for processing CPRA requests apply equally. As such, the CPRA dictates that an agency must make a determination of whether it has responsive records within 10 calendar days of receiving a request. A rule governing a 14-day extension still applies. Agencies are still expected to produce records within a “reasonable” amount of time, and traditionally, the CPRA allows for a few, specific reasons to delay the production of records. This is where SB 1421 and AB 748 differ.
SB 1421 amended California Penal Code section 832.7 governing police personnel records to strengthen the public’s faith in law enforcement by ensuring its right to access to reports of potential police misconduct, civilians’ rights violation and use or deadly force. source
Updated: March 12, 2021
On March 3, 2021, California’s Second District Court of Appeal broadened the public’s right to view police misconduct records under Senate Bill 1421. Signed into law on January 1, 2019, SB 1421 broadened public access to police misconduct files under the California Public Records Act (CPRA). SB 1421 expands access to records relating to officer involved shootings, serious use of force and sustained finds of sexual assault or serious dishonesty.1
Esteemed Justice Stephen Perren authored the Court’s opinion in Ventura County Deputy Sheriffs’ Association v. County of Ventura. The ruling blocked an effort by deputy sheriffs to limit SB 1421 to records created after the Bill’s 2019 passage. The Court confirmed the public’s right to review qualifying records which predate the implementation of the law. According to the Court, the legislative intent behind SB 1421 “was to provide transparency regarding instances of an officer’s use of significant force and sustained findings of officer misconduct by allowing public access to officer-related records maintained either by law enforcement employers or by any state or local agency with independent law enforcement oversight authority.”2 Furthermore, “The Legislature sought to afford the public the right to know all about serious police misconduct, to stop concealing incidents where an officer violated civilian rights, and to address and prevent abuses and weed out the bad actors.”3
The Ventura County Public Defender’s Office spearheaded the successful litigation.4 The ruling marks a major victory for Ventura County Public Defender Claudia Bautista, journalists, and the general public.
Ventura County Public Defender
Sources Cited
(1) Ventura County Deputy Sheriff’s Association v. County of Ventura (2021) 2021 WL 803774, 21 Cal. Daily Op. Serv. 2070, at 1.
(2) Ventura County Deputy Sheriff’s Association v. County of Ventura (2021) 2021 WL 803774, 21 Cal. Daily Op. Serv. 2070, at 2.
(3) Ventura County Deputy Sheriff’s Association v. County of Ventura (2021) 2021 WL 803774, 21 Cal. Daily Op. Serv. 2070, at 1.
(4) “Appellate court allows release of county peace officer misconduct records,” by Megan Diskin, Ventura County Star, March 4, 2021. (Link)
California Public Records Act
Senate Bill No. 1421
LEGISLATIVE COUNSEL’S DIGEST
DIGEST KEY
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes
BILL TEXT
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
The Legislature finds and declares all of the following:
SEC. 2.
Section 832.7 of the Penal Code is amended to read:
- (a) Except as provided in subdivision (b), the personnel records of peace officers and custodial officers and records maintained by a state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section does not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.
- (b) (1) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by a state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code)
-
- (A) A record relating to the report, investigation, or findings of any of the following:
- (i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
- (ii) An incident involving the use of force against a person by a peace officer or custodial officer that resulted in death or in great bodily injury.
- (iii) A sustained finding involving a complaint that alleges unreasonableor excessive force.
- (iv) A sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive.
- (B)
- (i) 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.
- (ii) As used in this subparagraph, “sexual assault” means the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority. For purposes of this definition, the propositioning for or commission of any sexual act while on duty is considered a sexual assault.
- (iii) As used in this subparagraph, “member of the public” means any person not employed by the officer’s employing agency and includes any participant in a cadet, explorer, or other youth program affiliated with the agency.
- (C) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency involving 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 false statements, filing false reports, destruction, falsifying, or concealing of evidence, or perjury.
- (D) 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 conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person 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.
- (E) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that the peace officer made an unlawful arrest or conducted an unlawful search.
- (2) Records that are subject to disclosure under clause (iii) or (iv) of subparagraph (A) of paragraph (1), or under subparagraph (D) or (E) of paragraph (1), relating to an incident that occurred before January 1, 2022, shall not be subject to the time limitations in paragraph (8) until January 1, 2023.
- (3) Records that shall be released pursuant to this subdivision include all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, whether the officer’s action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action. Records that shall be released pursuant to this subdivision also include records relating to an incident specified in paragraph (1) in which the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.
- (4) A record from a separate and prior investigation or assessment of a separate incident shall not be released unless it is independently subject to disclosure pursuant to this subdivision.
- (5) If an investigation or incident involves multiple officers, information about allegations of misconduct by, or the analysis or disposition of an investigation of, an officer shall not be released pursuant to subparagraph (B), (C), (D), or (E) of paragraph (1), unless it relates to a sustained finding regarding that officer that is itself subject to disclosure pursuant to this section. However, factual information about that action of an officer duringan incident, or the statements of an officer about an incident, shall be released if they are relevant to a finding against another officer that is subject to release pursuant to subparagraph (B), (C), (D), or (E) of paragraph (1).
- (6) An agency shall redact a record disclosed pursuant to this section only for any of the following purposes: (A) To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers. (B) To preserve the anonymity of whistleblowers, complainants, victims, and witnesses. (C) To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about possible misconduct and use of force by peace officers and custodial officers. (D) Where there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.
- (7) Notwithstanding paragraph (6), 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.
- (8) An agency may withhold a record of an incident described in paragraph (1) that is the subject of an active criminal or administrative investigation, in accordance with any of the following:
- (A)
- (i) During an active criminal investigation, disclosure may be delayed for up to 60 days from the date the misconduct or use of force occurred or until the district attorney determines whether to file criminal charges related to the misconduct or use of force, whichever occurs sooner. If an agency delays disclosure pursuant to this clause, the agency shall provide, in writing, the specific basis for the agency’s determination that the interest in delaying disclosure clearly outweighs the public interest in disclosure. This writing shall include the estimated date for disclosure of the withheld information.
- (ii) After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against an officer who engaged in misconduct or used the force. If an agency delays disclosure pursuant to this clause, the agency shall, at 180-day intervals as necessary, provide, in writing, the specific basis for the agency’s determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. The writing shall include the estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner.
- (iii) After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against someone other than the officer who engaged in the misconduct or used the force. If an agency delays disclosure under this clause, the agency shall, at 180-day intervals, provide, in writing, the specific basis why disclosure could reasonably be expected to interfere with a criminal enforcement proceeding, and shall provide an estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner, unless extraordinary circumstances warrant continued delay due to the ongoing criminal investigation or proceeding. In that case, the agency must show by clear and convincing evidence that the interest in preventing prejudice to the active and ongoing criminal investigation or proceeding outweighs the public interest in prompt disclosure of records about misconduct or use of force by peace officers and custodial officers. The agency shall release all information subject to disclosure that does not cause substantial prejudice, including any documents that have otherwise become available.
- (iv) In an action to compel disclosure brought pursuant to Section 6258 of the Government Code, an agency may justify delay by filing an application to seal the basis for withholding, in accordance with Rule 2.550 of the California Rules of Court, or any successor rule, if disclosure of the written basis itself would impact a privilege or compromise a pending investigation. (B) If criminal charges are filed related to the incident in which misconduct occurred or force was used, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial or, if a plea of guilty or no contest is entered, the time to withdraw the plea pursuant to Section 1018. (C) During an administrative investigation into an incident described in paragraph (1), the agency may delay the disclosure of records or information until the investigating agency determines whether the misconduct or use of force violated a law or agency policy, but no longer than 180 days after the date of the employing agency’s discovery of the misconduct or use of force, or allegation of misconduct or use of force, by a person authorized to initiate an investigation.
- (A)
- (9) A record of a complaint, or the investigations, findings, or dispositions of that complaint, shall not be released pursuant to this section if the complaint is frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or if the complaint is unfounded.
- (10) The cost of copies of records subject to disclosure pursuant to this subdivision that are made available upon the payment of fees covering direct costs of duplication pursuant to subdivision (b) of Section 6253 of the Government Code shall not include the costs of searching for, editing, or redacting the records.
- (11) Except to the extent temporary withholding for a longer period is permitted pursuant to paragraph (8), records subject to disclosure under this subdivision shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.
- (12)
- (A) For purposes of releasing records pursuant to this subdivision, the lawyer-client privilege does not prohibit the disclosure of either of the following:
- (i) Factual information provided by the public entity to its attorney or factual information discovered in any investigation conducted by, or on behalf of, the public entity’s attorney.
- (ii) Billing records related to the work done by the attorney so long as the records do not relate to active and ongoing litigation and do not disclose information for the purpose of legal consultation between the public entity and its attorney.
- (B) This paragraph does not prohibit the public entity from asserting that a record or information within the record is exempted or prohibited from disclosure pursuant to any other federal or state law.
- (A) For purposes of releasing records pursuant to this subdivision, the lawyer-client privilege does not prohibit the disclosure of either of the following:
- (A) A record relating to the report, investigation, or findings of any of the following:
- (c) Notwithstanding subdivisions (a) and (b), a department or agency shall release to the complaining party a copy of the complaining party’s own statements at the time the complaint is filed.
- (d) Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may disseminate data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its officers if that information is in a form which does not identify the individuals involved.
- (e) Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer’s agent or representative, publicly makes a statement they know to be false concerning the investigation or the imposition of disciplinary action. Information may not be disclosed by the peace or custodial officer’s employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision is limited to facts contained in the officer’s personnel file concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statements made public by the peace or custodial officer or their agent or representative.
- (f)
- (1) The department or agency shall provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition.
- (2) The notification described in this subdivision is not conclusive or binding or admissible as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court, or judge of this state or the United States.
- (g) This section does not affect the discovery or disclosure of information contained in a peace or custodial officer’s personnel file pursuant to Section 1043 of the Evidence Code.
- (h) This section does not supersede or affect the criminal discovery process outlined in Chapter 10 (commencing with Section 1054) of Title 6 of Part 2, or the admissibility of personnel records pursuant to subdivision
- (a), which codifies the court decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531.
- (i) Nothing in this chapter is intended to limit the public’s right of access as provided for in Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59.
SEC. 3.
Section 832.8 of the Penal Code is amended to read:
Penal Code 832.8.
As used in Section 832.7, the following words or phrases have the following meanings:
SEC. 4.
The Legislature finds and declares that Section 2 of this act, which amends Section 832.7 of the Penal Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:
SEC. 5.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district under this act would result from a legislative mandate that is within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.
More access also below
Section 832.7 – Peace officer or custodial officer personnel records
Senate Bill No. 1421 – California Public Records Act
Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records
SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure
California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records
The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records
PUBLIC RECORDS REQUEST CONTACTS for Los Angeles County (click here for media policy)
How Access to California Police Records
Los Angeles County Sheriff’s Department SB-1421 Records
Obtaining a Report from LASD Records (You, 3rd party or consel can obtain)
SEARCH SB-1421 SB-16 Incidents of LA County, Oakland
SB1421 – Form Access to California Police Records
California Statewide CPRA Requests Submit a CPRA Request
How do I submit a request for information?
To submit a request send the request via mail, fax, or email to the agency. Some agencies list specific departments or people whose job it is to respond to PRA requests, so check their websites or call them for further info. Always keep a copy of your request so that you can show what you submitted and when.
from the ACLU we have 2 types of SB 1421 Templates for Sample Requests
1. Incident Based Request: Use this template if you want records related to a particular incident, like the investigative record for a specific police shooting, an arrest where you believe an officer may have been found to have filed a false report, or to find out whether complaint that an officer committed sexual assault was sustained.
ACLU Download Word document | ACLU Download PDF
or from us Download Word document | or from us Download PDF
2. Officer Based Request: Use this template if you want to find any public records of misconduct related to a particular officer or if he or she has been involved in past serious uses of force.
ACLU Download Word document | ACLU Download PDF
or from us Download Word document | or from us Download PDF
We also have more robust sample letters below:
Sample Letter | SB 1421 & SB 16 Records
Download Word document | Download PDF
Sample Letter | Police Recordings
Download Word document | Download PDF
The CPRA is now located at Government Code sections 7920.000-7931.000
The First Amendment Coalition also has some useful information to help explain the PRA process.
to get the form learn a tiny more and get the form here: SB2 builds off of SB1421, The Right To Know Act – Access to California Police Recordsread here