BILL NUMBER: AB 1648 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Leno
FEBRUARY 23, 2007
An act to amend Sections 832.5 and 832.7 of the Penal Code,
relating to peace officer records.
LEGISLATIVE COUNSEL'S DIGEST
AB 1648, as introduced, Leno. Peace officer records.
Existing law generally regulates the confidentiality of various
peace officer records, including records pertaining to disciplinary
matters, as specified.
This bill would state the intent of the Legislature to abrogate
the decision of the California Supreme Court in Copley Press v.
Superior Court. The bill would provide that "department" or "agency"
means the department or agency that directly employs peace or
custodial officers and which has established a procedure to
investigate complaints by members of the public against its
personnel, and that is primarily responsible for the initial
investigation of the complaints and the maintenance of its
investigative records. The bill would provide that the terms do not
include any other government body that reviews the investigations,
findings, or employment actions of a department or agency. The bill
would make specified information in certain disciplinary records
pertaining to peace officers available to the public, as specified.
By imposing additional duties on local law enforcement agencies in
connection with providing discipline records of peace officers, as
specified, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 832.5 of the Penal Code is amended to read:
832.5. (a) (1) Each department or agency in this state that
employs peace officers shall establish a procedure to investigate
complaints by members of the public against the personnel of these
departments or agencies, and shall make a written description of the
procedure available to the public.
(2) Each department or agency that employs custodial officers, as
defined in Section 831.5, may establish a procedure to investigate
complaints by members of the public against those custodial officers
employed by these departments or agencies, provided however, that any
procedure so established shall comply with the provisions of this
section and with the provisions of Section 832.7.
(b) Complaints and any reports or findings relating to these
complaints shall be retained for a period of at least five years. All
complaints retained pursuant to this subdivision may be maintained
either in the peace or custodial officer's general personnel file or
in a separate file designated a nd maintained
by the department or agency as provided by department or agency
policy, in accordance with all applicable requirements of law.
However, prior to any official determination regarding promotion,
transfer, or disciplinary action by an officer's employing department
or agency, the complaints described by subdivision (c) shall be
removed from the officer's general personnel file and placed in
separate file designated by the department or agency, in accordance
with all applicable requirements of law.
(c) Complaints by members of the public that are determined by the
peace or custodial officer's employing agency to be frivolous, as
defined in Section 128.5 of the Code of Civil Procedure, or unfounded
or exonerated, or any portion of a complaint that is determined to
be frivolous, unfounded, or exonerated, shall not be maintained in
that officer's general personnel file. However, these complaints
shall be retained in other, separate files that shall be deemed
personnel records for purposes of the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code) and Section 1043 of the Evidence Code.
(1) Management of the peace or custodial officer's employing
agency shall have access to the files described in this subdivision.
(2) Management of the peace or custodial officer's employing
agency shall not use the complaints contained in these separate files
for punitive or promotional purposes except as permitted by
subdivision (f) of Section 3304 of the Government Code.
(3) Management of the peace or custodial officer's employing
agency may identify any officer who is subject to the complaints
maintained in these files which require counseling or additional
training. However, if a complaint is removed from the officer's
personnel file, any reference in the personnel file to the complaint
or to a separate file shall be deleted.
(d) As used in this section, the following definitions apply:
(1) "General personnel file" means the file maintained by the
agency containing the primary records specific to each peace or
custodial officer's employment, including evaluations, assignments,
status changes, and imposed discipline.
(2) "Unfounded" means that the investigation clearly established
that the allegation is not true.
(3) "Exonerated" means that the investigation clearly established
that the actions of the peace or custodial officer that formed the
basis for the complaint are not violations of law or department
policy.
(4) "Department" or "agency" means the department or agency that
directly employs peace or custodial officers and which has
established a procedure to investigate complaints by members of the
public against its personnel pursuant to subdivision (a), and that is
primarily responsible for the initial investigation of the
complaints and the maintenance of its investigative records. The
terms do not include any other government body that reviews the
investigations, findings, or employment actions of a department or
agency.
(e) It is the intent of the Legislature by amendments to this
section at the 2007-08 Regular Session to abrogate the holding of the
California Supreme Court decision in Copley Press v. Superior Court
(2006) 39 Cal.4th 1272, and to restore public access to peace officer
records and to meetings and hearings that were open to the public
prior to that decision.
SEC. 2. Section 832.7 of the Penal Code is amended to read:
832.7. (a) Peace officer or custodial officer personnel records
and records maintained by any state or local agency pursuant to
Section 832.5, or information obtained from these records, are
confidential and shall not be disclosed in any criminal or civil
proceeding except by discovery pursuant to Sections 1043 and 1046 of
the Evidence Code. This section shall not apply to investigations or
proceedings concerning the conduct of peace officers or custodial
officers, or an agency or department that employs those officers,
conducted by a grand jury, a district attorney's office, or the
Attorney General's office.
(b) Notwithstanding subdivision (a), a department or agency shall
release to the complaining party a copy of his or her own statements
at the time the complaint is filed.
(c) Notwithstanding subdivision (a), a department or agency that
employs peace or custodial officers may disseminate data regarding
the number, type, or disposition of complaints (sustained, not
sustained, exonerated, or unfounded) made against its officers if
that information is in a form which does not identify the individuals
involved.
(d) Notwithstanding subdivision (a), a department or agency that
employs peace or custodial officers may release factual information
concerning a disciplinary investigation if the officer who is the
subject of the disciplinary investigation, or the officer's agent or
representative, publicly makes a statement he or she knows to be
false concerning the investigation or the imposition of disciplinary
action. Information may not be disclosed by the peace or custodial
officer's employer unless the false statement was published by an
established medium of communication, such as television, radio, or a
newspaper. Disclosure of factual information by the employing agency
pursuant to this subdivision is limited to facts contained in the
officer's personnel file concerning the disciplinary investigation or
imposition of disciplinary action that specifically refute the false
statements made public by the peace or custodial officer or his or
her agent or representative.
(e) Notwithstanding subdivision (a), with respect to each
complaint charge, disciplinary matter, or internal investigation that
results in either discipline, a sustained complaint or charge, or a
finding that an officer's conduct was out of policy, a department or
agency that employs peace officers or custodial officers shall
release:
(1) The name and badge number of the subject officer.
(2) The name and current address of the complainant, unless the
complainant requests that they be kept confidential.
(3) A summary of the factual allegations contained in the
complaint or other charging document.
(4) The charges brought against the officer.
(5) The factual findings with respect to the conduct at issue.
(6) The discipline imposed or corrective action taken.
(f) Notwithstanding subdivision (a), in cases in which a civilian
review board or other government body outside the department or
agency recommends imposition of discipline or makes or recommends a
finding that an officer's conduct was out of policy or that a
complaint was founded, and that finding is overturned or the
recommendation is not followed by the department or agency that
employs the peace officer, the department or agency may, in its
discretion, release any information already released by the outside
body, as well as a summary of the grounds for overturning the outside
body's finding or not following its recommendation.
(e)
(g) (1) The department or agency shall
provide written notification to the complaining party of the
disposition of the complaint within 30 days of the disposition.
(2) The notification described in this subdivision shall not be
conclusive or binding or admissible as evidence in any separate or
subsequent action or proceeding brought before an arbitrator, court,
or judge of this state or the United States.
(f)
(h) Nothing in this section shall affect the discovery
or disclosure of information contained in a peace or custodial
officer's personnel file pursuant to Section 1043 of the Evidence
Code.
(i) Information disclosable pursuant to this section shall be made
available upon request pursuant to Section 6253 of the Government
Code.
SEC. 3. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.