Last Friday, despite intense opposition and pressure from nearly every law enforcement association in the state, the California legislature passed two historic reforms allowing the public to access information held by law enforcement agencies in California that has been kept from public view.
The two measures were co-sponsored by CNPA and the ACLU and would require the disclosure of certain police personnel records as well as body camera and other video or audio footage captured by law enforcement cameras and recording devices.
The narrow approvals represent huge victories for open records advocates after years of failed attempts.
If signed by the governor, SB 1421 would overturn a 40-year ban on disclosing police personnel records. The bill was approved initially by the Assembly with 41 votes, the minimum needed, but later gained an additional three votes. Bipartisan support was critical to the bill’s success, with Assemblyman Jordan Cunningham (R-San Luis Obispo) providing powerful testimony in support, helping to garner the votes of three other Republicans, Assemblywoman Catherine Baker (R-San Ramon), Assemblyman Rocky Chavez (R-Oceanside) and Assemblyman Brian Maienschein (R-San Diego).
The final vote was 44-30 with six members not voting.
SB 1421 would make disclosable under the CPRA a record relating to the report, investigation, or findings of any of the following:
- An incident involving the discharge of a firearm at a person by a peace officer or custodial officer;
- An incident in which the use of force by a peace officer or custodial officer against a person resulted in death, or great bodily injury;
- Where there is a sustained finding of sexual misconduct; and
- Where there is a sustained finding of an act of dishonestly like perjury, falsifying evidence, or other similar act that compromises an individual’s due process rights.
AB 748 adds a new section to the investigatory records exemption of the CPRA that would require disclosure of video or audio footage of a “critical incident” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury.
A law enforcement agency may withhold the footage if, based on the facts and circumstances depicted in the recording, disclosure would substantially interfere with the investigation, such as by endangering the safety of a witness or a confidential source. If an agency delays disclosure, it must provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation and the estimated date for disclosure.
Repeated prior attempts at reforming these laws have been quickly extinguished due largely to the political muscle of law enforcement. Both bills’ success was due in no small part to the editorial support of newspapers across the state to shine a light on the problems that have proliferated under these secrecy laws.
Governor Jerry Brown has not taken a position on either bill but his staff suggested several amendments that narrowed the scope of both measures making it more likely he will look favorably upon them. The governor has until September 30 to sign or veto both measures.
CNPA staff is grateful for the overwhelming number of editorials and op-eds in support of both bills and thanks each member who helped push this issue to the forefront of the public and legislative debates.