Q: Who is responsible for balancing the police officers’ right to a confidential personnel file, the police agencies obligation to keep personnel actions and records confidential, and the public’s right to transparency?
A: When a member of the press or public asks for records contained in an officer’s personnel file, the agency employing the officer must respond by disclosing the requested records or explaining why it believes they are exempt from disclosure in whole or in part. If a requester disagrees with the agency’s position, the requester may file a lawsuit against the agency under the California Public Records Act, in which case the court would decide whether the records must be disclosed in whole or in part.
As discussed in FAC’s police transparency guide, many police records are exempt from disclosure, but laws passed in 2019 provided for disclosure of records relating to certain uses of force or forms of misconduct. In September 2021, the Governor signed SB 16, expanding available records to include sustained findings of unreasonable or excessive force or failure to intervene against another officer using such force, sustained findings of prejudice or discrimination, and sustained findings of unlawful search or arrest.
Agencies may notify officers that they intend to disclose records identifying the officers. In some circumstances, officers, potentially represented by their unions, may disagree with the agency’s decision to release certain records. Those officers have the right to file what is known as a “reverse-CPRA” lawsuit seeking to prevent public disclosure. If such a case is filed, the person requesting the records has the right to intervene and defend the right to disclosure.
– David Loy, FAC legal director