Two recent appellate court decisions further limited the privacy rights of peace officers when it comes to public records request for information in officers’ personnel files. Senate Bill No. 1421, which went into effect on January 1, 2019, amended Penal Code section 832.7 to allow disclosure under the California Public Records Act (CPRA) of records relating to officer-involved shootings, use of force resulting in great bodily injury, and sustained findings of sexual assault or dishonesty. Due the vague language and broad implications of SB 1421, there have been a number of lawsuits challenging its application. Two recent decisions from California appellate courts have confirmed that SB 1421 applies retroactively to allow disclosure of discipline that occurred prior to 2019 and that such records are still subject to disclosure even when the employee resigns prior to the completion of his or her administrative appeal.
Ventura County
Deputy Sheriffs' Association v. County of Ventura
(2021) 61 Cal.App.5th 585
In Ventura, the Deputy Sheriff’s Association (DSA) sued the county to enjoin SB 1421’s application to records involving peace officer conduct and incidents occurring before January 1, 2019. The trial court granted the DSA’s request and issued a preliminary injunction. While the case was still before the trial court, the First District Court of Appeals found that SB 1421 did apply retroactively to permit disclosure of records created prior to 2019. However, the trial court in Ventura disregarded this ruling and issued a permanent injunction against the county. The county appealed. The Second District Court of Appeals reversed the trial court’s decision, and held that SB 1421 applied retroactively.
In analyzing the retroactive affect of the statute, the court noted that “the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date.” They reasoned that although the records may have been created prior to 2019, the event necessary to “trigger application” of the new law—a request for records maintained by an agency—necessarily occurs after the law’s effective date. The court held that because SB 1421 does not attach new legal consequences or increase peace officers’ liability for misconduct but instead merely broadens the public access to records, it applies retroactively.
Further the court held that the retroactive application comported with the statute’s legislative intent. The court stated that the records subject to disclosure “involve instances of egregious peace officer misconduct,” and “the Legislature has determined the public’s right to discover such misconduct generally overrides privacy concerns.” Accordingly, the court aligned with the previous appellate courts in holding that the legislative intent was to apply SB 1421 broadly, and thus the records of police misconduct that occurred prior to 2019 are disclosable.
This is the last in a line of cases challenging the retroactive application of SB 1421 and likely represents the final word on the issue. However, the significance of this ruling will continue to resonate if SB 16 is signed into law. SB 16 would significantly broaden the categories of force investigations subject to disclosure, as well as add new categories of sustained misconduct subject to disclosure.
Collondrez v. City of Rio Vista (Cal. Ct. App., Mar. 16, 2021, No. A159246) 2021 WL 973420
In Collondrez, the First District Court of Appeals held that the city’s disclosure of former officer John Collondrez’s personnel records was lawful. In 2017, Collondrez responded to a hit-and-run incident and allegedly falsified his report. After an internal affairs investigation, he was issued an intended notice of termination. The city upheld Collondrez’s termination following his pre-disciplinary Skelly hearing, and Collondrez appealed the matter to arbitration. Prior to arbitration, the parties entered into a settlement agreement where Collondrez agreed to resign in-lieu of termination. One of the terms of the settlement agreement was that the city promised not to release Collondrez’s disciplinary records unless required to do so by law or court order.
In January 2019, multiple media outlets submitted CPRA requests to the city for records disclosable pursuant to SB 1421. The city provided Collondrez notice of some but not all of the requests and produced all responsive, disclosable records. Multiple media outlets reported on the information contained in Collondrez’s personnel file, and Collondrez’s was subsequently fired by his new employer due to the negative coverage. Collondrez filed a lawsuit against the city. In response, the city filed an anti-SLAPP motion alleging that Collondrez’s complaint was premised on the city’s protected speech and Collondrez failed to show a probability of prevailing on the merits as to any cause of action. The trial court held in favor of the city on the first prong – the gravamen of the entire complaint arose from the city’s protected activities, here, the disclosures to the news media. On the second prong, the trial court found that Collondrez had shown a probability of prevailing on the merits for breach of the settlement agreement and invasion of privacy. Therefore, the trial court denied the motion as to these causes of action and granted it as to the other two. All parties appealed.
The Court of Appeal concurred with the trial court in finding that the entire complaint was premised on protected activity and thus survived the first prong of the anti-SLAPP test. As to the second prong of the anti-SLAPP motion, the court held that Collondrez failed to show a probability of prevailing on the merits of any cause of action because the city’s release of Collondrez’s records was compelled by SB 1421. The records pertained to a sustained finding of dishonesty. The court stated a “sustained finding” is where an officer is given “an opportunity” for appeal. He withdrew his appeal after his Skelly hearing. The court reasoned that there is no requirement in law or the Legislature’s intent that an appeal be conducted or completed. The court noted to require otherwise “would render superfluous” the Legislature’s intent in SB 1421 and allow officers to thwart public disclosure by settling or abandoning the appeal.
Finally, the court found that the city was not required
to redact information from Collondrez’s personnel file relating to the 2017
incident that did not directly pertain to the dishonesty allegation (e.g.,
details related to the illegal entry, use of force, failure to provide aid investigation).
The court narrowly interpreted the redaction requirements of SB 1421 and held
that the information could be disclosed because it related to a sustained
finding of dishonesty. The court's interpretation of "relating to" arguably broadens the scope of disclosable information to evidence pertaining to other confidential investigations outside the scope of SB 1421. The court's narrow reading of the officer's right to redactions also appears to conflict with Becerra v. Superior Court (2020) 44 Cal.App.5th 897 (holding that SB 1421 cover records are no longer confidential under the CPRA's investigatory files exemption but that the other CPRA exemptions still apply.)
Conclusion
The
Ventura and Collondrez
decisions further chip away at officers’ privacy
rights. SB 1421 and the subsequent rulings broadening its application
give officers little incentive to resign in-lieu of termination. Several pending bills, including SB 16 (Skinner) and SB 2 (Bradford), will further erode peace officer privacy rights in their personnel records. Officers facing disciplinary actions should consider the impacts of SB 1421, and that judicial and legislative expansions
are likely to apply retroactively.
