In With the New – Part Two

In Part Two of our “In With the New” series, BBK’s ARC: Advanced Records Center team covers important new legislation and case law related to the California Public Records Act and police record disclosure. Within you will find takeaways and analysis of the following: AB 473, AB 474, AB 751, SB 16, Ventura County Deputy Sheriffs’ Association v. County of Ventura, Collondrez v. City of Rio Vista, Voices of San Diego v. Superior Court and Getz v. Superior Court of El Dorado County.

California Public Records Act
AB 473
Assembly Bill 473 recodifies and reorganizes the provisions of the California Public Records Act (CPRA). The bill includes provisions to govern the effect of recodification and states that the bill is intended to be entirely nonsubstantive in effect. The bill becomes operative on Jan. 1, 2023.

California Public Records Act: Conforming Revisions
AB 474
Assembly Bill 474 enacts various conforming and technical changes related to AB 473. The bill also specifies that any other bill enacted by the Legislature during the 2021 calendar year that took effect on or before Jan. 1, 2022 and affects a provision of this bill, shall prevail over this act, except as specified.

Vital Records: Certified Copies: Electronic Requests
AB 751
Assembly Bill 751 extends existing law that authorizes the State Registrar, a local registrar, or a county to furnish a certified copy of a birth, death or marriage certificate to an authorized person, as defined, who submits a written, faxed or digitized image of a request accompanied by a notarized statement, sworn under penalty of perjury, that the applicant is an authorized person. These officials can continue to accept an electronic request for a certified copy of these records if the request is accompanied by an electronic verification of identity and an electronic statement sworn under penalty of perjury. AB 751 deletes the Jan. 1, 2022 sunset date for authorizing an official to accept an electronic request, thereby applying those provisions indefinitely.

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Peace Officers: Release of Records
SB 16
Senate Bill 16, which builds on 2018’s landmark SB 1421, modifies the requirements of disclosing sensitive information to the general public related to peace officer misconduct. The bill greatly expands the types of police records that must be disclosed, adding four categories to the four existing disclosure mandates. SB 16 would require disclosure when there is:

a sustained finding involving a complaint that alleges unreasonable or excessive force;
a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive;
a sustained finding made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings and gestures involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status; or
a sustained finding made by any law enforcement agency or oversight agency that the peace officer made an unlawful arrest or conducted an unlawful search.

Read more about additional notable provisions of SB 16 in BBK’s recent Legal Alerts:

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New Case Law

Confirmation SB 1421 Applies to Records Created Prior to Jan. 1, 2019

Ventura County Deputy Sheriffs’ Association v. County of Ventura (2021)
Since the passage of SB 1421, which amended Penal Code section 832.7 to allow the disclosure of certain police records related to officer-involved shootings, uses of force resulting in great bodily injury or death, and sustained findings of sexual assault or dishonesty under the CPRA, it remained unclear whether the newly enacted law is retroactive and requires the disclosure of records created prior to the law’s effective date (Jan. 1, 2019). However, in Walnut Creek Police Officers’ Assn. v. City of Walnut Creek, the First District Court of Appeal was the first appellate court to consider the issue, holding that SB 1421 does apply to records created prior to Jan. 1, 2019.

In Ventura County Deputy Sheriffs’ Association v. County of Ventura, the Second District Court of Appeal reached the same holding as the First District did in Walnut Creek, finding that the trial court erred in failing to apply SB 1421 retroactively. The association argued that:

Walnut Creek was distinguishable because it was a summary denial of petitions for writ of supersedes, and
applying SB 1421 so as to compel disclosure of pre-2019 records would constitute an improper retroactive application of new law.

However, the court rejected both of those arguments. Further, the court noted that it was the Legislature’s express intent, as evidenced by the decision to enact SB 1421 “without restricting its application to post-January 1, 2019 records, conduct and incidents,” for SB 1421 to be applied retrospectively. To hold otherwise would go against the legislative goal of affording the public “the right to know all about serious police misconduct, to stop concealing incidents where an officer violated civilian rights, and to ‘address and prevent abuses and weed out the bad actors.’”

Lastly, to promote the expanding public’s right to access these newly sought records under the CPRA would require “the disclosure of all responsive records regardless of when they were created or when the conduct occurred.”

The holding in Ventura County put to rest any uncertainty that lower courts had as to whether SB 1421 is to be applied retrospectively by making clear that SB 1421 requires the disclosure of pre-2019 records sought under the CPRA.

Completed Administrative Appeal Not Required to Constitute a “Final Determination” in Anti-SLAPP Motion

Collondrez v. City of Rio Vista
In Collondrez v. City of Rio Vista, a former police officer sued the City of Rio Vista and its police chief, alleging that the City, in responding to several CPRA requests by news outlets after SB 1421 went into effect on Jan. 1, 2021, had wrongfully released information from his personnel file. The records pertained to a 2018 disciplinary action that ultimately led to his termination due to violation of personnel rules and regulations, misconduct, dishonesty and making a false statement in connection with an excessive force incident. The City demurred and simultaneously filed an anti-SLAPP motion to strike all four causes of action: breach of contract, invasion of privacy, interference with prospective economic advantage and intentional infliction of emotional distress. The trial court disagreed with the City’s assertion that it was legally required, under the CPRA and Penal Code section 832.7 as amended by SB 1421, to disclose (as here) police officer personnel records pertaining to, among other things, sustained findings of dishonesty or making false reports.

The Court of Appeals analyzed the anti-SLAPP motion under a two-step prong test:

First, the appellate court analyzed whether the defendant had shown that the challenged cause of action was one arising from protected activity.
Second, the appellate court had to determine whether the plaintiff had demonstrated a probability of prevailing on any of the causes of action.

Under this anti-SLAPP (two-prong) test, the appellate court agreed with the trial court finding that, under prong one, the plaintiff’s complaint arose from protected activity, since each claim was premised on the City’s release of his personnel information to media outlets. The appellate court disagreed with the trial court’s application of the second prong to the breach of contract and invasion of privacy claims. The appellate court found that whether the City was compelled to disclose Collondrez's personnel information, turned on whether there was a “sustained finding” within the meaning Penal Code 832.7, subdivision (b)(1)(C), which itself turned on whether there was a “final determination.”

The holding in Collondrez, provides lower courts much needed clarity by making it clear that under SB 1421, a “final determination” does not require a completed administrative appeal, just an “opportunity” to appeal which is established in cases where the defendant either decides not to appeal or, as here, decides to settle or abandon such an appeal at some point before its conclusion. Further, the appellate court found that under Section 832.7, subdivision (b)(1)(C), responding agencies are required to disclose information in records that relate, though not directly pertains, to the dishonesty findings, permitting redactions of records “only for specified purposes” (as listed under subdivision (b)(5)), none of which were present here.

Weighing Competing “Public Interest” Factors During COVID-19

Voices of San Diego v. Superior Court
In Voices of San Diego v. Superior Court, the Fourth District Court of Appeal recently considered a request made by three news media organizations under the CPRA, in an effort to obtain unredacted records from the County of San Diego that show the specific name and location of all businesses and entities where a COVID-19 outbreak occurred in the County. The appellate court agreed with the trial court and held that the County had met its burden to prove that it was justified – under the catchall or “public interest” exemption in the CPRA – to redact the “Location” and “Location Address” information from the records sought because its release would have a chilling effect on the public’s willingness to voluntarily cooperate with contact tracing efforts during the pandemic. The appellate court held that the County had convincingly shown, through uncontradicted evidence, that the value of its ability to conduct effective contact tracing clearly outweighed the public's interest in gaining access to said information. In reaching its conclusion, the court noted that releasing the sought information would do little to “advance either the public's ability to avoid COVID-19 infection or the public's understanding of whether the government is taking appropriate steps to address the pandemic.”

“Overbroad and Unduly Burdensome” PRA Requests

Getz v. Superior Court of El Dorado County
In Getz v. Superior Court of El Dorado, the Third District Court of Appeal considered two issues:

Whether a public agency properly denied producing the texts of (42,852) indexed emails, sought by petitioner under the CPRA, on the grounds that the request is “overbroad and unduly burdensome”
Whether records that relate to a false police reporting investigation (involving petitioner) by the District Attorney’s office are exempt from production under section 6254, subdivision (f) of the CPRA

As to the first issue, the appellate court held that the trial court erred in finding that the request was “overbroad and unduly burdensome” because the petitioner had provided the County with a “specific and focused request.” Additionally, the county failed to provide substantive evidence to show it requires review of all 42, 852 indexed emails to determine whether any exemptions might apply, because the County had provided “nothing but speculation” that the records sought “contained information about anything other than the County’s business.”

As to the second issue, the appellate court agreed with the trial court finding that the misdemeanor charge records were investigative files exempt from production under section 6254, subdivision (f) of the CPRA. Notably, the court inferred that had the petitioner attempted to argue that he falls within the group of persons entitled to witness statements under section 6254, subdivision (f), he would have likely failed because a person investigated for reporting a false report would not be considered a “victim of the incident.”

The decision in Getz, discussed in additional detail here, serves to provide agencies with a better understanding of the factors considered in determining whether a CPRA request is “overbroad and unduly burdensome.”

Disclaimer: BBK Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.