Changes Brought By The Senate Bill 16 (Sb 16) For Increasing Police Transparency And Increasing Access To Records Of Police Misconduct
Recent changes in the Senate Bill 16 (SB 16) are important to all defendants in a criminal case, especially when the police officer is suspected of misconduct or misbehavior. If you are a defendant in a criminal case and need to know the history of the officer these changes can help your case. Please read on to know exactly what has changed.
Background
American democracy relies on the public’s knowledge of all federal government decisions, laws, and acts. Due to their discretionary power and public trust, law enforcement agencies must be transparent. People must be able to recognize and improve police misbehavior and misconduct. To protect all individuals equitably, law enforcement must be held accountable for unfairly affecting some communities.
In a step towards increasing transparency in law enforcement agencies, the Governor of California signed SB 16 in September 2021 which expanded public access to police misconduct records and strengthened communities’ ability to hold law enforcement agencies accountable. SB 16 also made it easier for the public to obtain records of police misbehavior and gave communities a greater voice in holding police departments responsible. SB 16 broadens the scope of police records that must be released in response to a public records request as per the provisions of SB 1421, which became law in January 2019. Public access to some police records was expanded by SB 1421, including those involving the firing of a weapon at a person, serious bodily injury or death, convictions for dishonesty, and convictions for sexual assault.
Substantive and procedural rules that were mandated for immediate implementation by SB 16
SB 16 took effect in January 2022 and brought into effect new procedural and substantive rules which shall govern the retention and disclosure of information required by Section 832.7 of the Penal Code. The previous retention period of five years for records containing sustained findings of misconduct has been increased to fifteen years. The new legislation does both – incorporates the judgments by the California courts and provides clarifications on concerns that occurred after the adoption of SB 1421. The following requirements concerning the release of records have been laid down by SB 16 and have been in effect since January 2022:
- Only the actual cost of duplication can be charged by government entities; search fees, editing fees, and redaction fees are off-limits.
- Unless expressly authorized by law, the requested documents must be supplied at the earliest and no later than forty-five days following the request.
- If an officer resigns before the conclusion of a personnel inquiry in a disclosable category, the investigation into that category remains open and can be released to the public.
- The attorney-client privilege shall not extend to billing records (save for active, continuing litigation and for the purpose of legal advice); and factual information communicated between the public entity and the attorney or obtained during an investigation done by the attorney for the benefit of the agency.
- When employing police officers, hiring organizations must seek and evaluate any relevant disciplinary records.
- Finally, SB 16 amends the Penal Code to mandate that all peace officers disclose any use of force to their respective agencies within twenty-four hours.
Substantive and procedural rules that were mandated for delayed implementation by SB 16
Additionally, SB 16 also increased the categories of police documents that can be made public. However, these won’t be put into effect until January 2023. These are:
- A decision upholding an allegation of excessive force or unjustified force.
- A confirmed conclusion was that a police officer did not act while other police used excessive force.
- If a police department or oversight board concludes that an officer made discriminatory or racially offensive comments, including those made on social media, and that decision is upheld by law enforcement agency or oversight organization.
- When an investigation of an arrest or search finds that the police officer violated the law, and that decision is upheld by law enforcement agency or oversight organization.
If a qualifying act occurs before January 1, 2022, the law grants one additional year for review and disclosure of records. Until January 1, 2023, newly disclosable records pertaining to activities that occurred before 2022 will not be implemented due to a backlog record of instances. Therefore, incidents occurring on or after January 1, 2022, must be supplied within the time restrictions set in Section 832.7 of the Penal Code for all categories of disclosure, including the additional categories.
Key Takeaways from SB 16
SB 16 sheds light on the nuances of policing record-keeping and disclosure in California, as well as the state’s growing commitment to openness. Requests for public documents under the California Public Records Act must be fulfilled within a reasonable amount of time, and SB 16 includes numerous provisions for law enforcement agencies, such as how to handle requests for public records in a timely manner and how to handle the associated costs of such requests. Furthermore, SB 16 promotes public accountability by mandating that all uses of force be reported to the appropriate authorities.
How can the Law Office of Scott C. Thomas help you?
Each law enforcement agency must respond and disclose any relevant, non-privileged information that they are required to disclose by law. By failing to disclose material information required by law, the agency will be violating the law. If you need access to such records, your initial step should be to write and request such files from the law enforcement agency. Given the increase in the categories of information that can be requested, you should reach out to our experienced attorneys at the Law Office of Scott C. Thomas to make such requests for records on your behalf. If the agency still doesn’t respond after that, our experienced attorneys at the Law Office of Scott C. Thomas can help you by availing your option of suing the agency in California’s superior court for the disclosure of such records. If you win your case against the law enforcement agency, the agency may have to compensate you for your legal costs.
It may be difficult and time-consuming to initiate an investigation into a police officer’s misconduct or to gather the information that can be used by the defendant and the defendant’s counsel at trial. Police transparency laws, fortunately, provide useful avenues for defense attorneys to undertake their own investigations. Our experienced attorneys at the Law Office of Scott C. Thomas can advise you on whether you have a good possibility of getting law enforcement personnel records, and what steps you should take to maximize the probability of gaining access to such records. You can contact the Law Office of Scott C. Thomas here or you can call 949-945-2085 for a no cost / no obligation consultation.
