Democracy depends on accountability. Transparency is the oxygen of accountability. That is why California law requires access to government records unless they fall within specific exceptions from disclosure.
The public has a special interest in disclosure about law enforcement. As the California Legislature has declared, officers are vested with “extraordinary authority — the powers to detain, search, arrest, and use deadly force,” and the “public has a strong, compelling interest in law enforcement transparency because it is essential to having a just and democratic society.”
To monitor law enforcement, the people need to know exactly when, why, and how officers exercise their powers. Without public access to that information, law enforcement is largely immune from meaningful oversight, especially on critical questions about biased policing, excessive force, and tolerance of misconduct.
Whatever one’s views of those issues, the people should be able to decide whether and to what extent they approve of law enforcement based on the full story, not just the official story.
Yet for decades, California was a black hole of police transparency. Apart from a few circumstances, such as the names of officers who shot people, California law shielded the bulk of law enforcement records from public disclosure.
In particular, exceptions for “personnel” and “investigatory” records all but swallowed the rule of disclosure. As written into statutes and interpreted by courts, those exceptions prevented public access to records about misconduct by officers, no matter how severe, or responses to alleged crimes, no matter how petty.
It doesn’t have to be this way. Other states guarantee much more public access to law enforcement records. Perhaps ironically for a state that prides itself on leading the nation in other areas, California lags behind other states on police transparency.
Two laws that took effect in 2019 began to improve police transparency in California. The first, SB 1421, ensured public access to records about officers shooting at people, using force that resulted in death or “great bodily injury,” or committing certain kinds of misconduct. The second, AB 748, required disclosure of audio or video recordings of shooting at people and using force that resulted in death or “great bodily injury.”
A law that took effect in 2022, SB 16, expanded the types of misconduct for which records must be disclosed. As discussed in FAC’s Police Transparency Handbook, these laws are far from ideal, but they are a big step forward.
But they don’t enforce themselves.
That’s why we pursued a case to establish that the new laws apply not only to agencies that created the records, but also to entities such as the California Department of Justice that investigate other agencies. We also persuaded a police department and sheriff’s department to disclose records about high-profile incidents involving a shooting and Taser use, respectively.
But other agencies continue to resist disclosure, in particular by arguing for a narrow interpretation of “great bodily injury” that would largely gut the new laws’ mandate for disclosure of records relating to significant uses of force.
Now FAC is litigating the question of how badly a person has to be injured by police for the public to have the right to full transparency on those events. The question is what is “great bodily injury”? Although that term is not defined in the police transparency laws, it is defined elsewhere in California law as any “significant or substantial” physical injury, including, for example, lacerations, abrasions, bruising, and burns. As we recently told the Fresno Superior Court, the case of a man who suffered numerous puncture wounds and a severe burn from multiple Taser strikes before he died is clearly one that requires transparency.
FAC is committed to defending police transparency in court. And laws don’t protect themselves from amendment, which is why we recently opposed an attempt to exempt the state agency charged with the power to strip abusive officers of their badges from its transparency obligations.
We have a long way to go on police transparency, in both defending existing laws and seeking to improve them. With allies around the state, we are in this for the long haul until the people have all the information they need to exercise meaningful oversight over law enforcement.
Use our free resources to access your democracy or to hold police accountable:
LEGAL HOTLINE
We operate the only free hotline open to all focused on answering questions about public records, public meetings, and First Amendment rights.
POLICE TRANSPARENCY HANDBOOK
This guide helps you navigate California’s transparency laws surrounding police misconduct and use of force. The guide, updated in 2023, includes a detailed legal guide with relevant statutes and court interpretations, along with a FAQ and sample request letters.
CALIFORNIA PUBLIC RECORDS ACT PRIMER
This handbook offers an overview of our state’s main freedom of information law, with discussion of exemptions, fees, and best practices for submitting requests. The Public Records Act was renumbered in 2023, and this guide has been updated to reflect the new code sections.