In October, 2018, Governor Brown signed a package of bills intended to increase law enforcement transparency. One of those measures was SB 1421, which requires law enforcement agencies to publicly disclose personnel records for officers who are investigated for police shootings and use of force, and who were found to have committed sexual assault or lied during the course of an investigation.
The bills were all effective January 1, 2019. An early challenge for agencies complying with SB 1421 was the potential “retroactive” effect; specifically, whether information from investigations that pre-dated January 1, 2019, must be produced. For some time now there has been discussion involving the California Justice Department, local law enforcement agencies, the press and the courts focused on whether SB 1421 applied retroactively to personnel records the were created prior to the law going into effect. Police unions immediately sought judicial intervention in a bid to get the courts to halt the implementation of SB 1421 until its scope could be resolved. That effort was unsuccessful.
In a recent San Francisco Superior Court finding Javier Bacerra, California Attorney General, was ordered to release law enforcement personnel records that existed prior to January 1, 2019. The judge relied on a ruling by a California Court of Appeal finding the unions’ argument that SB 1421 applies only prospectively to records created after January 1, 2019 to be “without merit.”
As it stands the direction from the courts to law enforcement agencies is pretty clear. The law is retroactive and the creation date of the record has no bearing on whether or not it must be released. In the coming months, agencies can expect to receive broad requests for public disclosure of personnel records.
For additional guidance on this and other employment related matters, EIA members are encouraged to utilize the EIA’s Employment Practices Services provided by Patricia S. (Patti) Eyres of Eyres Law Group.
You can also review the EIAtv on-demand webcast entitled “Comprehensive Update on the Requirements of the California Peace Officers’ and Firefighters’ Procedural Bill of Rights” in which Patti Eyres provides concrete compliance guidance and practical strategies for updating and enforcing your public safety agencies’ departmental processes.