Police Transparency Handbook – Legal Guide
Police Transparency Handbook
Table of Contents
Police Transparency in California: A Legal Guide
Sheppard, Mullin, Richter & Hampton
1540 El Camino Real, Suite 120
Menlo Park, CA 94025
Updated in 2023 by First Amendment Coalition’s David Loy and Khrystan Policarpio.
Editing by Ginny LaRoe, First Amendment Coalition
California lawmakers passed three bills starting in 2018 that significantly broadened the public’s right to access information about law enforcement officer disciplinary records and significant uses of force against members of the public.
Senate Bill 1421, “The Right to Know Act,” significantly broadened the public’s ability to obtain records about police shootings, other significant uses of force and certain disciplinary records. An important companion bill, AB 748, further increased transparency by requiring that agencies disclose recordings of “critical incidents,” which includes body camera video of police shootings, among other important recordings essential to public understanding of law enforcement activity in our communities. In 2021, lawmakers built on this increased access with Senate Bill 16, which expanded the categories of misconduct subject to disclosure and made a number of procedural changes, including new deadlines for disclosure and limiting certain reasons for withholding records.
These police transparency laws cover police officers, sheriff’s deputies, highway patrol officers, local jailers and state prison guards, along with records created or maintained by other agencies, including district attorneys and oversight agencies.
The following guide explains in some detail each of these laws, along with relevant court rulings, and also explains what records the public has a right to see. Section I is about police misconduct and use-of-force files, and Section II is about video and audio recordings, such as dash cam and body cam footage.
The public can access these records under the California Public Records Act, the state’s main freedom-of-information law. For the basics on how the CPRA works, refer to FAC’s primer. As for timing: under the CPRA, the government is generally required to respond to a request for records within 10 calendar days. The time for responding can be extended by the agency for an additional 14 days (for a total of 24 days). SB 16 has added that covered records must be produced no later than 45 days from the date of request for disclosure, unless delay is authorized by other provisions of the statute.
Notably, many types of routine police records – such as incident reports, investigative files of closed cases, jail booking photos, even arrest reports – are often not publicly available. This handbook does not cover those longstanding exemptions to the California Public Records Act, rather it focuses on the specific categories of records related to police conduct that are now subject to disclosure. To understand the foundations of the California Public Records Act, its exemptions, and information that can be released upon agency discretion, refer to CPRA Primer.
I. Files About Police Misconduct and Other Critical Incidents
In 2018 the California Legislature enacted SB 1421 which amended Penal Code section 832.7(b) (“Section 832.7(b)”). The Legislature enacted SB 1421 to greatly expand public access to records concerning police uses of force and serious misconduct. As the Legislature explained:
“The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.”
S.B. 1421, Section 1(b).
SB 1421 went into effect on January 1, 2019, and made records about certain types of conduct by state and local law enforcement officers (referred to in the law as “peace officers or custodial officers”) available under the California Public Records Act (“CPRA”).
SB 16 was adopted in 2021 and went into effect on January 1, 2022, further amending Section 832.7(b) to broaden the records subject to disclosure.
Under Section 832.7(b), the following records must be disclosed, even if they are “personnel records” for which disclosure was previously prohibited:
- officer-involved shootings (Section 832.7(b)(1)(A)(i));
- uses of force resulting in great bodily injury or death (Section 832.7(b)(1)(A)(ii)),
- sustained findings that an officer committed sexual assault as defined in Section 832.7(b)(1)(B);
- sustained findings that an officer committed dishonesty as described in Section 832.7(b)(1)(C);
- sustained findings involving a complaint that alleges unreasonable or excessive force (Section 832.7(b)(1)(A)(iii));
- sustained findings that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive (Section 832.7(b)(1)(A)(iv));
- sustained findings that a law enforcement officer engaged in conduct involving prejudice or discrimination against a person (Section 832.7(b)(1)(D)); and
- sustained findings that an officer made an unlawful arrest or conducted an unlawful search (Section 832.7(b)(1)(E)).
SB 16 also amended Penal Code section 832.5 by mandating time periods for retention of records. All complaints and any reports regarding law enforcement officers and currently in the possession of a department or agency shall be retained for a period of no less than five years where there was not a sustained finding of misconduct, and for not less than 15 years where there was a sustained finding of misconduct. Records shall not be destroyed while a request related to that record is being processed, or during any process or litigation to determine whether the record is subject to release. Section 832.5(b).
Each of the boldfaced terms above has a special meaning in the law, some of which are defined in the statute. These terms are important for determining what is, and what is not, a public record subject to disclosure.
1. Peace officers and custodial officers (“officers”)
Section 832.7(b) covers records related to the above-listed categories of incidents involving “peace officers or custodial officers.” Peace officers include police officers, officers of sheriff’s departments, California Highway Patrol officers, officers of specialized policing agencies, such as those for ports, and many other types of law enforcement personnel. Penal Code sections 830 to 830.15 detail numerous categories of “peace officers.” Peace officers may also include some correctional officers, e.g., prison guards for state prisons, and other employees of the California Department of Corrections and Rehabilitation, such as parole and probation officers. Custodial officers are employees of city or county law enforcement agencies that maintain custody of prisoners in local detention facilities. Penal Code sections 831 and 831.5 explain the types of individuals who are custodial officers.
For simplicity, peace officers and custodial officers are referred to as “officers” below, except when the statute distinguishes between the two.
2. Personnel Records
“Personnel records” means any file maintained under the officer’s name by the officer’s “employing agency” that contains records relating to, in relevant part, “[e]mployee advancement, appraisal, or discipline” and “[c]omplaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.” Penal Code section 832.8(a).
Records relating to the conduct of an elected county sheriff, as opposed to deputies employed by the sheriff’s department, are not “personnel records” because the county is not deemed the sheriff’s “employing agency.” Essick v. County of Sonoma, 81 Cal. App. 5th 941, 951-54 (2022). Therefore, records about an investigation into an elected sheriff’s alleged harassment of a county supervisor were subject to disclosure, although they did not fall into one of the categories of misconduct described in Section 832.7(b). Id. at 955 (holding statutes protecting personnel records ““provide no shield against embarrassment to an elected official who also happens to be a peace officer”).
3. Officer-involved shootings
An agency must disclose records relating to any incident in which an officer discharged a firearm at a person. Records relating to such incidents must be disclosed even if nobody was hit or injured. See Section 832.7(b)(1)(A)(i). A shooting incident does not have to be investigated by an agency for the records to be released. Similarly, the agency does not need to have made any findings that an officer violated any policy or law for records to be released. Rather, any record relating to the report, or investigation, or findings concerning the incident must be released. See Section 832.7(b)(1)(A).
The term “firearm” is not defined in this statute. Elsewhere, the Legislature has defined “firearm” as “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” Penal Code section 16520(a). That definition likely applies here. Typically weapons such as pellet guns are not firearms if they “use the force of air pressure, gas pressure, or spring action” rather than an explosive “to expel a projectile.” People v. Monjaras, 164 Cal. App. 4th 1432, 1435 (2008). While sidearms, rifles, and shotguns are generally firearms, other projectile weapons may not be. For example, a bean bag launcher that uses gas or compressed air is not necessarily a “firearm.”
In terms of which agency or agencies may have records related to officer-involved shootings, note that state law typically requires the California Attorney General to investigate fatal shootings of unarmed civilians. Gov. Code section 12525.3(b)(1) (“A state prosecutor shall investigate incidents of an officer-involved shooting resulting in the death of an unarmed civilian. The Attorney General is the state prosecutor unless otherwise specified or named.”) (adopted by AB 1506). The California Attorney General, via the state Department of Justice, may also choose to investigate other shootings or incidents as well. Given this, you may wish to seek records from the state agency, as well as the local agency involved.
4. Use of force resulting in death or great bodily injury
An agency must disclose records relating to any incident in which an officer’s use of force resulted in death, or in “great bodily injury.” See Section 832.7(b)(1)(A)(ii). The term “great bodily injury” is defined in California law as “a significant or substantial physical injury.” See, e.g., Penal Code section 12022.7(f). However, this term and its applications to individual instances of force inflicted on members of the public has been the subject of much debate. Agencies and their legal advisers have used narrow interpretations to withhold records that requesters have sought, leading to challenges in and out of court.
Importantly, the term “great bodily injury” has been interpreted broadly by the California courts. See People v. Washington, 210 Cal. App. 4th 1042, 1047-48 (2012) (“some physical pain or damage, such as lacerations, bruises, or abrasions” constitutes great bodily injury); People v. Jung, 71 Cal. App. 4th 1036, 1042 (1999) (same); People v. Wallace, 14 Cal. App. 4th 651, 665-66 (1993) (cuts and burns from being flex-tied, burning sensation from an insecticide-like substance were great bodily injury); People v. Bustos, 23 Cal. App. 4th 1747, 1755 (1994) (multiple abrasions, lacerations, and contusions were great bodily injury); People v. Corona, 213 Cal. App. 3d 589 (1989) (a swollen jaw, bruises to head and neck and sore ribs were “great bodily injury”); People v. Sanchez, 131 Cal. App. 3d 718 (1982) (multiple abrasions and lacerations to victim’s back and bruising of eye and cheek were “great bodily injury”) disapproved on other grounds in People v. Escobar, 3 Cal. 4th 740, 751, fn. 5 (1992); People v. Jaramillo, 98 Cal. App. 3d 830, 836–837 (1979) (multiple contusions, swelling and discoloration of the body, and extensive bruises were “great bodily injury”).
Some agencies and their legal counsel, however, have argued that they must only disclose a smaller universe of records, those that meet the definition of “serious bodily injury,” which can be interpreted as requiring more severe injuries than “great bodily injury.” However, in drafting SB 1421 the Legislature specifically rejected use of the term “serious bodily injury” and instead chose to use the term “great bodily injury.” See SB 1421 Senate Floor Analysis dated August 31, 2018 at page 2. Furthermore, at least two trial courts have rejected agency attempts to use the narrower definition of “serious bodily injury” when responding to requests for records under Section 832.7(b). See Richmond Police Officers’ Association v. City of Richmond, Case No. MSN19-0169 (Contra Costa Sup. Ct. July 31, 2020); The Sacramento Bee, et al., v. Sacramento Co. Sheriff’s Dept., No. 34-2019-80003062 (Sacramento Sup. Ct., Nov. 8, 2019). These courts have held that “great bodily injury” under Section 832.7(b) must be interpreted broadly and consistently with the broad interpretations under People v. Washington, and the cases listed above.
Therefore, in responding to requests for records under Section 832.7(b), agencies should interpret “great bodily injury” broadly, and in line with the broad scope of “great bodily injury” applied by the California courts.
As with shooting incidents, a use of force resulting in great bodily injury does not have to be investigated by an agency for the records to be released. Similarly, the agency does not need to have made any findings that an officer violated policy or any law for records to be released. Rather any record relating to the report, or investigation, or findings concerning the incident must be released. See Section 832.7(b)(1)(A).
5. Sustained finding
This definition is key to whether records about certain types of misconduct will be available to a requester. A “sustained” finding is a final determination by the agency, hearing officer, or other applicable investigating agency, following an investigation and opportunity for an administrative appeal, that the actions of the officer violated law or department policy. See Penal Code Section 832.8(b).
One trial court has held that once a sustained finding has been made, an agency must disclose the records even if the agency later decides to drop the sustained finding, or enters into a settlement agreement with the officer to drop the sustained finding. See Richmond Police Officers’ Association v. City of Richmond, Case No. MSN19-0169 (Contra Costa Sup. Ct. July 31, 2020). In other words, an agency cannot make an agreement with an officer that would hide a sustained finding from disclosure.
As long as an officer has the opportunity to pursue an administrative appeal after a finding of misconduct, the officer cannot thwart disclosure “by declining to pursue an administrative appeal of a disciplinary finding or … by settling or abandoning such an appeal at any point before its conclusion.” Collondrez v. City of Rio Vista, 61 Cal. App. 5th 1039, 1053 (2021).
When a “sustained finding” is required as a condition of disclosing law enforcement agency records, the agency must make an administrative determination that an officer engaged in misconduct. For the purpose of disclosing the relevant agency records, that leaves it to the agency to decide whether, for example, a given use of force was unreasonable or excessive or an arrest or search was unlawful. If a court were to make similar findings, for example in deciding a civil rights lawsuit or granting a motion to suppress in a criminal case, the relevant judicial records would generally be accessible to the public the way any court records would be available, but the agency’s internal records might not be subject to disclosure unless the agency made its own “sustained finding.” Therefore, if an agency disagrees with a judicial finding that an officer acted unlawfully, a court might find the agency’s internal records about the incident would not be subject to disclosure.
6. Sustained findings of sexual assault
Under Section 832.7(b), an agency must release any records relating to an incident in which a “sustained finding” was made that an officer engaged in sexual assault involving a member of the public. See Section 832.7(b)(1)(B).
“Sexual assault” is broadly defined under Section 832.7(b) as including instances when a police officer propositions a member of the public or engages in a sexual act with a member of the public while on duty:
“sexual assault” means the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority. For purposes of this definition, the propositioning for or commission of any sexual act while on duty is considered a sexual assault.
Section 832.7(b)(1)(B)(ii). “Member of the public” means “any person not employed by the officer’s employing agency and includes any participant in a cadet, explorer, or other youth program affiliated with the agency.” Section 832.7(b)(1)(b)(iii).
As one trial court summarized, the statute defines sexual assault as including “ Nonconsensual sexual acts or propositions, whether committed on or off the job; and  Sexual acts or propositions committed on the job, whether or not consensual (or claimed to be consensual).” Richmond Police Officers’ Association v. City of Richmond, Case No. MSN19-0169 (Contra Costa Sup. Ct. July 31, 2020).
7. Sustained findings of dishonesty
Section 832.7(b)(1)(C) requires disclosure of records relating to an incident in which a sustained finding was made of dishonesty by an officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.
Thus, the law covers at least two types of incidents: (a) incidents in which an officer engaged in dishonesty related to reporting, investigation, or prosecution of a crime committed by anyone; and (b) incidents in which an officer engaged in dishonesty related to reporting of, or investigation of misconduct by, another officer. For the records to become disclosable, there must be a sustained finding that the officer committed dishonesty falling into one of these categories.
8. Sustained findings of unreasonable or excessive force
An agency must disclose records relating to any sustained finding involving a complaint that alleges unreasonable or excessive force. Section 832.7(b)(1)(a)(iii).
The statute does not define “unreasonable” or “excessive.” Elsewhere, the Legislature has stated, “Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance,” and “the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.” Penal Code section 835a(a)(3), (b). The Legislature has also required all law enforcement agencies to “maintain a policy that provides a minimum standard on the use of force,” which shall include a “requirement that an officer may only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense or the reasonably perceived level of actual or threatened resistance.” Gov. Code section 7286(b)(2). The same statute defines “[e]xcessive force” as “a level of force that is found to have violated Section 835a of the Penal Code, the requirements on the use of force required by this section, or any other law or statute.” Gov. Code section 7286(a)(2). Courts have also addressed what force is “reasonable.” See, e.g., Graham v. Connor, 490 U.S. 386, 396 (1989).
9. Sustained findings of failure to intervene
An agency must disclose records relating to a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive. Section 832.7(b)(1)(a)(iv).
The statute does not define “intervene” or “clearly unreasonable or excessive.” Elsewhere, the Legislature has required that use of force policies must contain a “requirement that an officer intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject.” Gov. Code section 7286(b)(9).
In that statute, the term “‘[i]ntercede’ includes, but is not limited to, physically stopping the excessive use of force, recording the excessive force, if equipped with a body-worn camera, and documenting efforts to intervene, efforts to deescalate the offending officer’s excessive use of force, and confronting the offending officer about the excessive force during the use of force and, if the officer continues, reporting to dispatch or the watch commander on duty and stating the offending officer’s name, unit, location, time, and situation, in order to establish a duty for that officer to intervene.” Gov. Code section 7286(a)(4).
10. Sustained findings involving prejudice or discrimination
An agency must disclose any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that an officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, records, and gestures involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical and/or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity or expression, age, sexual orientation, or military and veteran status. Section 832.7(b)(1)(D).
11. Sustained findings of unlawful arrest or search
An agency must disclose any record relating to an incident where a sustained finding was made that a peace officer made an unlawful arrest or conducted an unlawful search. Section 832.7(b)(1)(E). Unlike other provisions of section 832.7(b)(1), this clause refers only to a “peace officer” and thus excludes custodial officers.
B. Scope of records that must be released
The statute requires disclosure of a broad array of records: “all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to” anyone who determines whether the officer’s action was consistent with law or policy or determines whether to file charges against the officer; and records related to “what discipline to impose or corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.” Section 832.7(b)(3).
In addition, after SB 16, the statute now provides that otherwise disclosable records must be released regardless of whether “the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.” Section 832.7(b)(3).
SB 16 also limited an agency’s ability to claim attorney-client privilege over records covered by Section 832.7(b). The attorney-client privilege does not prohibit disclosure of “[f]actual information provided by the public entity to its attorney or factual information discovered in any investigation conducted by, or on behalf of, the public entity’s attorney” or “[b]illing records related to the work done by the attorney so long as the records do not relate to active and ongoing litigation and do not disclose information for the purpose of legal consultation between the public entity and its attorney.” Section 832.7(b)(12).
It does not matter which agency initially created the records—if an agency has in its possession records subject to disclosure under Section 832.7, it must disclose them even if it did not initially create them and/or the records pertain to officers from a different agency. See Becerra v. Superior Court, 44 Cal. App. 5th 897, 920 (2020).
C. Incidents that occurred and records created before January 1, 2019
SB 1421 and SB 16 apply irrespective of when the incident occurred or the records were created. Thus, an agency must release records under Section 832.7(b) even if the records were created, or the incident occurred, prior to January 1, 2019, when the amendments to Section 832.7(b) came into effect, or January 1, 2022, when SB 16’s amendments took effect. Ventura County Deputy Sheriffs’ Ass’n v County of Ventura, 61 Cal. App. 5th 585, 593-94 (2021); Walnut Creek Police Officers’ Ass’n v. City of Walnut Creek, 33 Cal. App. 5th 940, 941 (2019).
D. Requester costs for recordings, including edited or redacted body cam or dash cam video
Just as with other categories of other records disclosable under the CPRA, the government may generally charge only for the direct costs of duplicating records or the direct costs of providing the records in electronic form, with limited exceptions that allows agencies to charge for certain programming or computing services. Gov. Code sections 7922.530(a), 7922.575.
Of particular importance, the California Supreme Court held that agencies may not charge a requester for the agency’s costs of redacting electronic records such as audio and video records. Nat’l Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 506-507 (2020). Rather, the agency may only charge for the direct costs of duplicating records or the direct costs of providing the records in electronic form.
SB 16 confirmed that the cost of copies of records subject to disclosure pursuant to section 832.7(b) shall not include the costs of searching for, editing, or redacting the records. Section 832.7(b)(10). This means no law enforcement agency should be able to recover these costs of staff time to fulfill their disclosure obligations for these records. This is an important consideration because some counties may assert the authority to charge greater costs under a local ordinance, purportedly adopted pursuant to Government Code section 54985. But the language in SB 16 makes clear that county agencies, namely the office of the sheriff in this context, should not do so with respect to records made disclosable under Penal Code section 832.7(b). The question whether county agencies can lawfully levy such charges for staff time spent responding to requests made under the CPRA has not yet been litigated.
E. Timing of disclosure
Generally, the CPRA does not establish a hard deadline for agencies to disclose requested records. Instead, it typically requires an agency merely to “state the estimated date and time when the records will be made available.” Gov. Code section 7922.535(a).
However, in SB 16, the Legislature mandated that records subject to disclosure under Section 832.7(b) “shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure,” unless “temporary withholding for a longer period is permitted.” Section 832.7(b)(11).
The statute allows temporary withholding as follows:
1. Active criminal investigation
“During an active criminal investigation, disclosure may be delayed for up to 60 days from the date the misconduct or use of force occurred or until the district attorney determines whether to file criminal charges related to the misconduct or use of force, whichever occurs sooner.” Section 832.7(b)(8)(A)(i).
2. Criminal proceeding against an officer
“After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against an officer who engaged in misconduct or used the force.” Section 832.7(b)(8)(A)(ii) (emphasis added). The agency must provide written updates at 180-day intervals stating “the specific basis for the agency’s determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. The writing shall include the estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner.” Id.
3. Criminal proceeding against someone other than officer
“After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against someone other than the officer who engaged in the misconduct or used the force.” Section 832.7(b)(8)(A)(iii) (emphasis added). As that statute says, the agency must provide written updates at 180-day intervals, stating:
the specific basis why disclosure could reasonably be expected to interfere with a criminal enforcement proceeding, and shall provide an estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner, unless extraordinary circumstances warrant continued delay due to the ongoing criminal investigation or proceeding. In that case, the agency must show by clear and convincing evidence that the interest in preventing prejudice to the active and ongoing criminal investigation or proceeding outweighs the public interest in prompt disclosure of records about misconduct or use of force by peace officers and custodial officers. The agency shall release all information subject to disclosure that does not cause substantial prejudice, including any documents that have otherwise become available.
4. Criminal charges filed related to same incident
“If criminal charges are filed related to the incident in which misconduct occurred or force was used, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial or, if a plea of guilty or no contest is entered, the time to withdraw the plea” has expired. Section 832.7(b)(8)(B).
5. Administrative investigation
“During an administrative investigation … the agency may delay the disclosure of records or information until the investigating agency determines whether the misconduct or use of force violated a law or agency policy, but no longer than 180 days after the date of the employing agency’s discovery of the misconduct or use of force, or allegation of misconduct or use of force, by a person authorized to initiate an investigation.” Section 832.7(b)(8)(C).
II. Recordings of Police Shootings and Use-of-Force Incidents
AB 748 amended the CPRA to require the disclosure of audio and video records of “critical incidents.” The amendment, now codified at Government Code section 7923.625 allows the public to access a significantly broader range of recordings than was previously available.
Although most thought of as providing for the release of police “body cam” or “dash cam” videos, Section 7923.625 is not limited to such videos but instead applies to any “video or audio recording that relates to a critical incident.” Thus, records such as audio of 911 calls and bystander videos that end up in the possession of the government should be subject to Section 7923.625’s disclosure requirements.
A. Records that Can Be Obtained Under Section 7923.625
Except in the relatively narrow circumstances described below, Section 7923.625 requires agencies to disclose audio and video records of “critical incidents.” A “critical incident” is: (i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer; or (ii) An incident in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury.
In other words, Section 7923.625 provides for release of video and audio recordings of the same types of officer-involved shooting and use of force incidents for which records must be released under Penal Code section 832.7(b). As under Section 832.7(b), agencies should interpret the term “great bodily injury” broadly, and consistently with the broad manner in which California courts have interpreted the term.
Section 7923.625 allows an agency to withhold audio and video recordings of critical incidents in the following limited circumstances.
B. Withholding based on active investigation
An agency may withhold a recording for 45 days or longer from the date the agency “knew or reasonably should have known about the incident” only if releasing the recording would substantially interfere with an active criminal or administrative investigation. However, the longer the agency withholds the recording, the higher the burden on the agency to justify delaying disclosure. Thus, an agency may only withhold a recording for up to 45 days, if, based on the facts and circumstances depicted in the recording, disclosure would substantially interfere with an active investigation, such as by endangering the safety of a witness or a confidential source. The agency must provide a written explanation to the requester of the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation and must also provide the estimated date of disclosure. To withhold a recording for longer than 45 days, the agency faces a more substantial burden, and must provide a new written notice every 30 days. See Section 7923.625(a)(1)-(2).
C. Redaction or withholding based on privacy expectation
An agency may redact or withhold a recording if the agency demonstrates, on the facts of the particular case, that the public interest in withholding the recording clearly outweighs the public interest in disclosure because the release of the recording would violate the reasonable expectation of privacy of someone depicted in the recording. Sections 7923.625(b). There are a number of limitations for invoking this exception.
First, the agency must provide a written explanation to the requester of the specific expectation of privacy at issue and the public interest served by withholding the recording.
Second, whenever possible, the agency is required to redact the recording “including blurring or distorting images or audio, to obscure those specific portions of the recording” to protect the privacy interest at stake. The agency may only withhold the recording entirely if the agency demonstrates that a privacy interest cannot adequately be protected through redaction. Furthermore, when redacting a recording, the agency is not permitted to interfere with the viewer’s ability to fully, completely, and accurately comprehend the events captured in the recording and cannot not otherwise edit or alter the recording.
Even when a recording is entirely withheld because of a privacy interest, the person whose privacy is being protected (or their surviving family) can still obtain a copy of the recording (except where it would substantially interfere with an active criminal or administrative investigation, in which case the provisions above concerning active investigations apply). See Section 7923.625(b)(2).
As noted above, agencies may not charge for redacting the records at issue. See Nat’l Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 506-507 (2020).
This guide is for informational purposes only.
It is not intended to constitute legal advice and does not form an attorney-client relationship.
Last updated January 2023