On December 21, 2018, our office filed an extraordinary writ of
mandamus seeking to stay enforcement of Senate Bill 1421 on behalf of Crime
Victims United of California and the Sacramento Police Officers
Association. By classifying peace officer personnel records and
investigative files as not confidential notwithstanding Penal Code section
832.7(a) and Government Code section 6254 (f) “or any other law,” SB 1421 infringes
on the privacy rights granted crime victims in the California
Constitution.
Largely written by the ACLU, the bill mandates disclosure of
certain sustained disciplinary actions and critical incident investigations,
including any incident wherein an officer discharges a firearm or deploys force
that results in great bodily injury or death. SB 1421 provides that these
categories of records are not exempt from disclosure as confidential personnel
records defined in Penal Code Section 832.7 or as law enforcement
investigations pursuant to Government Code Section 6254(f). The poorly drafted
bill has caused significant concern and uncertainty. In particular, the
bill was drafted to severely limit law enforcement agencies’ ability to redact
sensitive information, such as victim information, and is silent as to
retroactivity.
The investigations, findings, and reports covered by SB 1421
contain multiple categories of information that are independently confidential
or exempt from disclosure under the California Constitution and other state
laws. Critical
incident investigations contain thousands of pages of documents, as well video recordings of the incident (if available) and of witnesses and victims. One of the reasons the investigations are so comprehensive is that the investigations necessarily encompass the underlying crimes that caused law enforcement to respond. Often, the suspect survives the use of force encounter and is subject to prosecution both for the underlying crime(s) and crimes against the officer that prompted his or her use of deadly force in self-defense. In these circumstances, the officer is considered a victim as well under Marsy's Law.
SB 1421 requires the release of information that would otherwise be protected
from disclosure pursuant to Article I, section 28 of the California
Constitution or existing statutes, other than Penal Code section 832.7 or
Government Code section 6254(f). SB 1421 eliminated 76 express
exemptions in the CPRA, including Section 6254(k) which exempts records
that are otherwise exempt from disclosure by state or federal statutes.
These exemptions permit agencies to redact confidential or sensitive
information from the records, such as autopsy images, the personal information
of victims, juvenile records, attorney-client work product, etc..
SB 1421
provides only 5 very limited grounds for redaction, and narrows the protections of subsection (k)
to material that is confidential under federal statutes, i.e. it eliminates the ability to redact information confidential under California law. SB 1421 deprives victims and peace officers of their privacy
rights and negates Constitutional and statutory protections that would
otherwise exempt crime victim information from disclosure, simply because the
information is included in an investigation or record subject to disclosure
under SB 1421. A copy of the writ is attached here.
Crime Victims United of California and the Sacramento Police
Officers Association are represented by David E. Mastagni and Isaac Stevens of
Mastagni Holstedt, APC, and Nina Salarno-Besselman, who helped win the fight in 2008 to pass Marsy's Law.
