Principles for Public Safety Employment

record while a request for that record is being processed, or during the pendency of any litigation. To that end, an Employer must now retain records of public complaints for at least five years (where a complaint is not sustained) to 15 years (for sustained findings). For records that currently exist, the five and 15-year clocks began running on January 1, 2022, rather than the dates the records were created. In sum, SB 16 significantly expands the scope of peace officer personnel records that are no longer confidential and requires longer retention of records. 3. “P ITCHESS ” M OTIONS TO D ISCOVER P EACE O FFICER P ERSONNEL R ECORDS a. Background In 1974, the California Supreme Court decided the case of Pitchess v. Superior Court 427 In Pitchess , the Supreme Court held that a criminal defendant could “compel discovery” of certain relevant information in the personnel files of police officers by making “general allegations which establish some cause for discovery” of that information and by showing how it would support a defense to the charge against him. In 1978, the California Legislature codified the holding of Pitchess by enacting Penal Code sections 832.7 and 832.8, as well as Evidence Code sections 1043 through 1045. 428 To initiate discovery, the defendant (or a civil litigant) must file a motion supported by affidavits showing “good cause for the discovery,” first by demonstrating the materiality of the information to the pending litigation, and second by “stating upon reasonable belief” that the police agency has the records or information at issue. 429 This two-part showing of good cause is a “relatively low threshold for discovery.” 430 If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance. 431 The trial court generally may not disclose complaints more than five years old, the “conclusions of any officer” who investigates a citizen complaint of police misconduct, or facts “so remote as to make [their] disclosure of little or no practical benefit.” 432 Typically, the trial court will disclose only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer. 433 That practice “imposes a further safeguard to protect officer privacy where the relevance of the information sought is minimal and the officer's privacy concerns are substantial.” 434 Historically, records of peace officers or custodial officers, including supervisors, who either were not present during the arrest or had no contact with the party seeking disclosure from the time of the arrest until the time of booking, or who were not present at the time the conduct at issue is alleged to have occurred within a jail facility, have not been subject to disclosure. However, effective January 1, 2020, such records are subject to disclosure if the supervisorial officer had direct oversight over an officer and issued “command directives” or had “command influence” over the circumstances at issue. 435

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 125