Legal Alerts Feb 11, 2019

First Court Ruling on Merits of SB 1421

Police Unions’ Argument to Block Release of Pre-2019 Records Found “Legally Unmeritorious”

In the first court ruling on Senate Bill 1421, a judge held that the new California law only applies prospectively, but still requires disclosure of pre-2019 police personnel records in response to Public Record Act requests made after the new law’s enactment. Friday’s ruling on the law, which makes some police personnel records available under the PRA, was made in Contra Costa Superior Court. The court denied six Contra Costa County police unions’ petitions seeking to limit SB 1421 to records created after Jan. 1 — when SB 1421 took effect.
Previously, on Jan.25, in response to the police unions’ petitions, the court issued temporary restraining orders. The orders were made on the basis that a release of pre-2019 personnel records “would be irretrievable” if done before full consideration of the petitions on the merits. The police unions claimed the new law was not intended to — and did not — apply “retroactively” to require disclosure of records created prior to Jan. 1. Three factors went into the court’s 32-page analysis that SB 1421 applies to pre-2019 police personnel records.
First, the court considered whether the new law is triggered by events occurring before or after Jan. 1 and decided that the law is triggered when an agency received a PRA request. Hence, SB 1421 has no “retroactive” effect, but still requires the release of pre-2019 police personnel records. The court reasoned that prospective application of SB 1421 means that, after Jan. 1, when an agency receives a request, the agency must release records it maintains at that time, even if those records were created or involve incidents that predate Jan. 1. The court explained that it is an erroneous understanding of concepts of prospectivity and retroactivity to focus on the dates of the underlying police conduct and the agency’s investigative records of that conduct. The court wrote, “A law is not retroactive merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.”
Second, the court considered whether the new law alters someone’s liability for acts occurring before enactment and ruled that nothing in SB 1421 changes the legal consequences for the pre-2019 conduct of police officers, nor does it violate any vested right of privacy in those records. Neither does SB 1421 create a legal claim or cause of action that did not exist in 2018. In fact, it does not change how police misconduct is to be investigated, administratively adjudicated or criminally prosecuted. The only change resulting from SB 1421 is who can access the evidence of alleged police misconduct. This access may mount pressure to hold officers accountable, but it might also provide exculpatory facts that would have been withheld from the public under the old Penal Code statutes —  the Pitchess process. The police unions argued that officers’ pre-existing rights to privacy would be impermissibly altered if the law applied to pre-existing records, but the court responded that, “…officers had rights to privacy…because the Legislature said so. But they do not now have those rights, because again the Legislature says so.”
Third, the court considered and rejected the assertion that it would be unfair to allow the law to have a “retroactive” effect because officers may have reasonably relied on the previous state of the law. In this part of the analysis, the court addressed three plausible bases for such reliance. Might the investigative reports include information that should not be released to the public? No, because the new statute contemplates these privacy concerns and permits redaction of confidential victim or officer information — the disclosure of which would constitute an unwarranted invasion of privacy. Might investigators have justifiably relied on the confidentiality of police records when they included certain police misconduct in investigative reports? Neither the unions nor the court would abide by the idea that justifiable reliance legitimately covers any officers attempting to conceal how they perform their duties. Finally, might officers have relied on the confidentiality of their personnel records and chosen not to challenge certain discipline believing the disciplinary records would remain confidential? Possibly, but those officers do not stand to face any further discipline just because the records become public. They may face “adverse publicity,” but the law contemplates more severe harms to satisfy this justifiable reliance standard.
The court conceded that SB 1421 considerably changes the landscape governing police personnel records, but concluded that the Legislature’s intent to do so is clear. “Concealing crucial public safety matters such as officer violations of civilians’ civil rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.” It would be inconceivable to infer that the Legislature saw a crisis in law enforcement transparency and intended to rectify the issue by requiring the release of records created only after Jan. 1, the court concluded.
The court therefore denied the police unions’ petitions for a preliminary injunction to prevent the release of pre-2019 records under the new law, but stayed the ruling to permit the unions to seek a stay from the Court of Appeal in connection with an appeal, if the unions choose to bring one.
While this ruling does not directly address the substantive claim that the Legislature could not strip away “privacy” protections concerning pre-2019 records, it is significant because it provides strong reasoning that undermines the unions’ claim. Furthermore, this is but one decision amid many more to come. The police unions might appeal this order, and similar petitions are pending in other courts up and down the State. However, this first judicial ruling on SB 1421 strikes an important blow against those police unions seeking to limit the law’s application to pre-2019 records, and helps clarify the rights of PRA requesters to have these records — and the obligations of public agencies to disclose these records — under the new law.
For more information about SB 1421 or Public Records Act compliance, please contact the author of this Legal Alert listed at the right in the firm’s Municipal Law practice group, or your BB&K attorney.

If you are a member of a police agency, please ensure you are subscribed to Best Best & Krieger LLP’s Public Safety communications distribution list to receive updates on this issue and others. Previous articles on SB 1421 include:

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

BB&K is helping public agencies navigate Public Records Act compliance with our new Advanced Records Center. Combining legal know-how with cutting-edge technology, ARC provides comprehensive and cost-effective support for all records-related matters, including PRA requests. To learn more, visit the ARC page or email

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