COURT OF APPEAL DETERMINES THAT SB 1421 APPLIES TO RECORDS CREATED PRIOR TO JANUARY 1, 2019

Courtesy of James R. Touchstone, Esq.

On March 29, 2019, the California First District Court of Appeal denied the consolidated petitions for writ of supersedeas filed by the Walnut Creek Police Officers’ Association and several other municipalities (“Appellants”). The Appellants sought to limit the scope of SB 1421 regarding certain categories of peace officer personnel files to only those responsive records created on or after the law’s effective date of January 1, 2019.  The Court declined to find that SB 1421 was not retroactive in application.

Background

In September 2018, California Governor Jerry Brown signed into law Senate Bill 1421 (“SB 1421”) which modified Penal Code section 832.7 to change the confidential status of certain types of records that had previously been confidential.  As discussed in Client Alert Vol. 33, No. 33, as of January 1, 2019, the following records became subject to public disclosure under the Public Records Act: (1) Records of officer involved shootings; (2) Records of officer uses of force that result in death or great bodily injury; (3) Records of sustained incidents involving sexual assault against a member of the public; and (4) Records of sustained incidents of dishonesty.

Whether records created prior to SB 1421’s January 1, 2019 effective date could be subject to public disclosure for public records requests made after January 1, 2019 remained an unresolved question. Appellants sought to restrict SB 1421’s public disclosure requirements to records created on or after January 1, 2019.  In other words, Appellants argued that any public records requests pursuant to SB 1421 pertaining to records in the aforementioned four categories should exclude any potentially responsive records created before January 1, 2019; those records would remain confidential. Appellants argued that applying the 2019 amendments to compel disclosure of records created prior to 2019 would constitute an improper retroactive application of SB 1421.

Discussion

The First District Court of Appeal found Appellants’ retroactive application contention without merit and denied the Appellants’ petitions.  The Court found that Appellants did not show that “substantial questions [would] be raised on appeal.” (Smith v. Selma Community Hospital (2010) 188 Cal.App.4th 1, 18.)  The First District explained that “the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date” (People v. Grant (1999) 20 Cal.4th 150, 157.)  The Court determined that the “event necessary to trigger application” of the new law—a request for records maintained by an agency—would necessarily occur after the law’s effective date of January 1, 2019, whether or not the records were created before 2019.

Moreover, the Court, again citing Grant, explained that application of new law is retroactive “only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date.”  The Court explained that SB 1421 does not change the legal consequences for peace officer conduct described in pre-2019 records.  The First District found instead that SB 1421 changes only the public’s right to access peace officer records.

HOW THIS AFFECTS YOUR AGENCY

The Court of Appeal for the First Appellate District published this decision effective March 29, 2019.  Accordingly, it is now the law in California, and binding on jurisdictions throughout the state, unless another court of appeal or the California Supreme Court rules to the contrary.  Pursuant to this opinion, agencies are required to disclose responsive records generated prior to January 1, 2019, unless another exemption is applicable and would permit nondisclosure of such records.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.





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