Records Retention Requirements (or the Lack Thereof) Under the California Public Records Act

The California Supreme Court held earlier this month in City of Gilroy v. Superior Court that the California Public Records Act does not impose a requirement on public agencies to retain records for three years after asserting an exemption to disclosure of the records. The court notes that this is a fairly straightforward conclusion from the text of the CPRA itself, which does not make any reference to a requirement to preserve records.

Your records are shreddy — I mean, ready. Photo by Mahen Rin on Unsplash‍. ‍

However, the court also notes that preservation requirements may exist on the basis of pending litigation, so the absence of explicit language in the CPRA itself is not necessarily the end of the analysis in terms of whether records can or can not be run through the digital shredder.

The unfortunate thing about decisions like this is that, whatever they mean as a purely legal matter, they also symbolically gesture in a particular direction, and the direction in this case is toward the idea that public agencies should go ahead and destroy records, or at least should not feel bound to preserve them under the CPRA. Alternatively, I suppose you could also view the decision as a flag to the California legislature that some amendments to the CPRA may be necessary. Either way the symbolism is not of the court itself standing up for public access to records, but there is only so much the court can do given the lack of any language on preservation in the actual statute.

At any rate, the takeaway from City of Gilroy, as a practical matter and for members of the public, is absolutely to get preservation letters submitted to agencies immediately whenever there is a prospect that evidence could be destroyed by the passage of time. The CPRA itself may not ensure that records are preserved, but agencies can nevertheless be put on notice that the records are the subject of potential litigation and thus need to be retained.

Related Post: California Public Records Act Statute Numbering Cross-Reference Update.

For free consultation about California Public Records Act cases, call today.

California Public Records Act Statute Numbering Cross-Reference Update

I have posted another update to the California Public Records Act statutory numbering cross-reference chart here. As I mentioned previously, this chart is useful because when the California Legislature renumbered the CPRA they left no simple way to find the connection between the new and the old statutory numbers, and virtually all of the caselaw refers to the old numbers.

For free consultation about California Public Records Act cases, call today.

What Is Governor Newsom Trying to Do on Disclosure of Law Enforcement Misconduct Records? Is SB2 on the chopping block?

What are the political currents that led to Governor Newsom attempting to roll back access to California’s public records law pertaining to law enforcement misconduct?

ACLU California Action Director of Government Affairs Carmen-Nicole Cox speaks out against the proposed change. Photo by KCRA.

What Newsom was attempting to do, as discussed in good coverage here by KCRA, was to attach a budget trailer bill that would exempt the Commission on Peace Officer Standards and Training (POST) from provisions of the CPRA that pertain to disclosure of records of misconduct. The actual text of the trailer bill is here (hat tip to the Mercury News for actually posting a link). The text is the following:

ADD GOVERNMENT CODE SECTION 7923.601

This division does not require the disclosure of peace officer personnel files, and background investigation files gathered by law enforcement agencies pursuant to Government Code section 1031, in the custody of the Commission on Peace Officer Standards and Training in connection with the commission's authority to verify eligibility for the issuance of certification and investigate grounds for decertification of a peace officer pursuant to Penal Code section 13510.8, including any and all investigative files and records relating to complaints of, and investigations of, police misconduct, and all other investigative files and materials. Nothing in this paragraph shall limit the obligation of another public agency to disclose records of police misconduct, or other public records, pursuant to Penal Code section 832.7 or any other provision of law.

In some ways, this language seems limited (in the sense that, for example, it seemingly leaves intact many of the CPRA provisions that require disclosure of records of misconduct), and in other ways it’s obviously not. Does this language mean that if personnel records from a local agency — like a county sheriff’s department, for example — are “in the custody of the Commission on Peace Officer Standards and Training,” they are then shielded from disclosure? The last sentence might suggest the answer is “no,” but undoubtedly law enforcement agencies would argue “yes.”

More broadly, why would this language be consistent with the Legislature’s intent in enacting SB 2, SB 1421, and AB 748, all of which sought precisely to expand access to records of misconduct? Why is a higher degree of secrecy around officers who commit misconduct necessary, or reasonable, or anything that California voters should want?

Backing up for a second: what the heck is going on? Newsom is generally pretty reasonable on policing issues and California was way overdue for reform around public access to records related to law enforcement misconduct. Why on Earth would he be pushing to roll back that progress? Who is he listening to? As critics note in the coverage linked above, the fact that he was using this budget trailer process to try to get this change through is worrisome, because it strongly looks like an attempt to legislate under the radar.

The report about the proposed transparency tweak comes on the heels of another one suggesting — in my opinion, without any empirical basis — that the decertification provision of SB2 could produce “staggering” losses in law enforcement (nonpaywall summary here). It’s hard to know the specifics of what’s playing out here, but reading between the lines a little bit there strongly appears to be a lobbying effort going on to undercut SB2. Bottom line, this is also an effort to keep bad law enforcement officers from being exposed as such, and that is not something that any reasonable politician should support.

I have reached out to Newsom’s office in connection with this post and will update if I get any response.

Related Post: LA Times Endorses SB2, Aug. 7, 2021

Related Post: Retired LAPD Sergeant Dorsey: Pass SB2, July 13, 2021

Comparison Chart of Old and New Statute Numbering for the California Public Records Act (CPRA)

An aggravating modification was made to the statutory numbering of the California Public Records Act (CPRA) effective at the beginning of 2023, entirely relabeling and subdividing a large body of law. It’s not a bad thing in itself, but the problem is that virtually all of the caselaw on the CPRA uses the old statutory numbering and, at least in Lexis, there is no way to follow the links from the old statute to the new statute. This is quite annoying.

Therefore, here is a simple chart cross-referencing the old and new statutory numbering of at least some of the important components of the CPRA. I will add to this over time. (Edit: a second, more extensive, update is here.) Please make sure to verify any citations before using them in actual litigation.

For free consultation about California Public Records Act cases, call today.

A Template for California Public Records Act Requests in Cases Where Law Enforcement Has Inflicted Great Bodily Injury

UPDATE: Please note that the CPRA has been statutorily renumbered. Please do your own research and don’t just copy this language without looking up the relevant laws.

Law Enforcement Agency

Attn: Public Records Requests

[Date]

To whom it may concern:

I am writing to make a request under the California Public Records Act for records related to a [date] use-of-force incident in which [law enforcement agency] caused [victim] to suffer great bodily injury.

In this incident, members of the [law enforcement agency] used force against [victim].  As a result, [victim’s injuries go here]. These injuries were “great bodily injury” under any interpretation of that term, and thus implicate the language of Penal Code section  832.7, subd. (b)(1)(A)(ii) and Government Code section 6254, subd. (f)(4)(c)(ii).

With these factors in mind, I respectfully request to be provided (1) any use of force report that was generated, (2) any bodycamera or surveillance footage of the use of force, (3) any other documentation that was created to describe why and how force was used against [victim].

Thank you for your assistance with this request, and please let me know if you need any clarification.

Sincerely,

CA Atttorney General Will Begin Handling Investigations of Fatal Police Shootings

The California Attorney General will begin investigating fatal police shootings, taking over those investigations from the local law enforcement agencies that had previously handled them. According to news accounts:

two newly established state teams, one based in Northern California and the other in Southern California, will have a combined 33 special agents and supervisors who can call on crime analysts, forensic experts and others as needed.

The state teams will focus solely on whether the shootings were legally justified, sending their reports to the California Department of Justice’s Special Prosecutions Section for a decision. The department will ultimately either file criminal charges or release a written report outlining why they weren't warranted

There are interesting public records implications to having such investigations occur, because the content of such investigations should (presumably) be public under the terms of SB 1421.

“On Our Watch” Tackles Brady after SB 1421, and Raises Questions About WhY THERE IS NO california PROTOCOL AROUND TRANSMITTING BRADY INFORMATION

The latest episode of the fantastic NPR podcast On Our Watch addresses Brady information (i.e., information that is exculpatory or impeaching in a criminal case) that now is available to the public by virtue of the passage of SB 1421. It also raises challenging questions about why Brady information about problematic officers is handled in such an informal, unsystematic way in California, with each individual law enforcement agency throughout the state doing whatever it likes — which, in a surprisingly large percentage of cases, is nothing at all — to track Brady information, to make it available to prosecutors who might conceivably convey it to defense lawyers, and to share it with other agencies who might otherwise hire these officers.

Brady Monkeys. Like administrators in California law enforcement agencies, they see no evil, hear no evil, and certainly don’t talk about evil with anybody else.

At one point, reporter Sukey Lewis notes that an On Our Watch analysis of 200 internal affairs cases from 2014 through 2019 found over 100 California law enforcement officers lied on an official police report or in sworn testimony. Just in that set of data, the podcast identified 23 officers who were known to have lied who are still working as police today.

The prior episode of the podcast, which had to do with an officer in Salinas who was fired after repeatedly dropping the ball in filing reports and, in general, doing an extremely poor job of investigating crime, raised a similar concern because it noted that the officer in question was still employed in law enforcement, just at a different agency. Not only that, his current employer did not even want to know about what problems he had had previously when Lewis offered to share that information. Still another episode discussed a DA who was informed about Brady information — specifically, an officer lying and exaggerating in a report to justify her own error in having let her dog seriously injure a woman — but kept it under wraps, continuing to push for criminal charges against the woman who was harmed by the error of the officer, apparently without ever informing the public defender that the officer had been disciplined for her misrepresentations.

The whole thing seems upside down, if you think about it for a moment. Shouldn’t law enforcement agencies have duty to ensure that the people they hire have not been previously fired from some other agency for dishonesty? And shouldn’t there be some sort of statewide (or even national) index of Brady-type material, such that it’s not just left to chance and to somebody’s good intentions whether the relevant information is even available to review in the first place?

Lewis notes that some prosecuting offices maintain a “Brady” list, which is good, except that it’s almost certainly just an Excel file on somebody’s desktop somewhere. California defense lawyers do something similar, informally sharing names of officers who are known to have been involved in problematic situations. But it is striking that a repository of this type of information is not systematized, given how weighty the concern is. Officers get fired for sexual misconduct on the job, to take one example that the podcast has covered, and simply get rehired elsewhere, free to continue doing the same thing because they not only haven’t been criminally prosecuted for the abuse of their authority to harass and coerce women but in many cases their misconduct hasn’t even been shared outside of the department that fired them in the first place.

Above all else, the full arc of On Our Watch illustrates what a stranglehold police unions have had over the contours of law enforcement policy in California. Municipalities bend over backwards to avoid union wrath while individual problem officers bounce around from agency to agency like so many wayward priests. They may be slapped on the wrist, but they are almost never prosecuted, almost never publicly named, and almost never stopped from repeating their misdeeds.

This issue is related to the problem SB2 is intended to resolve — namely, that California does not currently have a way to decertify officers who have been found to have committed misconduct, thereby preventing those people from being rehired at a different agency. 46 other states already have such a process, and California is definitely lagging behind in this respect. This issue is also related to the proposed changes of SB16 which would make many more types of police personnel records subject to disclosure under the California Public Records Act, and would also require law enforcement agencies to actually make some effort to review the employment history of a candidate who has previously worked in law enforcement before giving that person yet another crack at carrying a gun and a badge. Those would be positive steps, if enacted.

More fundamentally, however, it seems like California needs legislation focused on the way Brady information, in particular, is handled by, and transmitted by, law enforcement agencies, and to whom it must be transmitted. The lack of any broad scale policy around this subject seems to mean, bizarrely, that the entity in this state that probably has the most comprehensive overview of Brady information related to California law enforcement officers is KQED itself, simply by virtue of the fact that they made so many requests for public records from state law enforcement agencies after SB 1421 was passed. Not a law enforcement agency, not a state regular: a radio station.

Thank goodness for the diligent work of the reporters putting together On Our Watch, but it’s no substitute for the type of formalized, statewide structure that should actually be in place to deal with this issue.

Scrutiny on San Jose's Withholding of Public Records Related to Mayor's Nonprofit

The San Jose Spotlight notes a curious public records kerfuffle in San Jose related to a nonprofit started by San Jose Mayor Sam Liccardo, Solutions San Jose. The problem, according to the report, is that San Jose has refused to release Liccardo’s emails related to the group, even though the group engages in lobbying around city policy. The city has apparently agreed to perform a more thorough search for the emails and produce a privilege log for emails that are withheld.

Court Orders LA Sheriff to Comply with SB 1421

The LA Times reports that a Los Angeles County Superior Court judge has ordered Sheriff Villanueva to hand over long-delayed records that are deemed public under SB 1421. The judge, Mitchell L. Beckloff, has the following quote, which deserves an absolute chef’s kiss.

“This ‘We’ll get it done when we’ll get it done’ [approach] … is not acceptable under the Public Records Act,”

California Cities/Agencies Disregarding California Public Records Act Timelines

KTVU reported today that 2/3 of the people who file California Public Records Act requests in Oakland do not receive responses to their requests within the 10 days specified by the law, and that 59% of those surveyed found it “very difficult” to get the information they requested. The San Diego Unified School District was also in the news this week for its indifference to CPRA time limits, with the Voice of San Diego reporting that a paralegal who oversees requests for the district said he does not get records back related to requests within 10 days 95% of the time.

The pragmatic reality behind all of this is that the threat of litigation is the only real mechanism the public has to enforce these limits, but the notion of running to court merely because an agency has blown a tight deadline also poses certain challenges.