MICHAEL L. RAINS 91013] ROCKNE A. LUCIA, JR. 109349] 'l?lMO?l?IlY K. TALBOT 173456] ZACHERY A. LOPES [sew 284394] 11119 JAN 2L: A ll? 23 Rams LUCIA STERN S'r. PIIALLE a SILVER, PC 3L u- .. 4.5.2" 2300 Contra Costa Blvd, Suite 500 - . 331:; ?waists. Pleasant Hill, CA 94523 - Telephone: 925.609.1699 Facsimile: 925.609.1690 Email: rlucia@rlslawyers.com I WM Hill THIS zlopes@rlslawyers.com [fiinltJ-il??llii? .1 ?ilIJllIIJch? RICHMOND POLICE ASSOCIATION SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF CONTRA COSTA RICHMOND POLICE 1 9 0 1 6 9 ASSOCIATION VERIFIED PETITION FOR WRIT OF TRADITIONAL MAN DATE 1085]; COMPLAINT FOR DECLARATORY vs. AND INJUNCTIVE RELIEF CITY OF BROWN, Chiefol? Police; and DOES 1 through 20, inclusive, Respondentstefendants. FIRST CAUSE OF ACTION - PETITION FOR WRIT OF TRADITIONAL MANDATE 1. For a First Cause of Action by Petitioner/Plaintiff Richmond Police Officers? Association (?Petitioncr" or against Respondents/Defendants, City of Richmond Brown, Chief of Police (?Chiet?); and Does 1 through 20, inclusive (collectively, ?Respondents?), for a Petition for Writ of Mandate pursuant to Code of Civil Procedure section 1035, Petitioner alleges as follows: 2. RPOA was and is the employee organization. as de?ned in Government Code section 1 VERIFIED PETITION FOR WRIT OF TRADITIONAL COMPLAINT FOR DECLARATORY RELIEF AND INJUNCTIVE RELIEF 3500 et seq., recognized by the City as the exclusive representative of Police Of?cers and Police Sergeants employed by the City with regard to all matters relating to employment conditions and employer-employee relations. (Gov. Code 3504.) Petitioner?s sworn members are peace of?cers as de?ned by Penal Code section 830.1. 3. At all times mentioned herein, the City was organized and operating pursuant to charter and was a local employing agency within the meaning of Penal Code section 832.5 et seq. maintaining peace of?cer personnel information, as well a local agency within the meaning of Government Code section 6252, a part of the California Public Records Act (Gov. Code 6250 et seq. 4. At all times mentioned herein, the Chief of Police was charged with the general supervision, administration, management, and operations of the Richmond Police Department (?Department?). The Chief of Police is named as a Respondent/Defendant in his official capacity only. 5. Venue of this case is within thejurisdietion of this Court as the performance required of the Respondentleefendants, and business of the Respondents/Defendants, is located within the County of Contra Costa. I 5_ At all times mentioned herein, Does 1 through 20, inclusive, were the agents, servants and employees of Respondeats/Defendants, and in doing the things hereinafter alleged were acting within the scope of their authority as such. agents, servants and employees with the permission and consent of Respondcots/Defendants. Petitioner will. amend this Petition to allege the true names and capacities of Docs -1 through 20, inclusive when ascertained. 7. Prior to January 1, 2019, California Penal Code section 832.7, subdivision provided that ?peace officer or custodial of?cer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from those records, are con?dential and shall not be disclosed in any criminal or civil proceedings, except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.? 3. California Penal Code section 832.3 provides that, as used in Section 832.7, ?personnel records" includes ?any ?le maintained under that individual?s name by his or her employing agency and containing records relating to any of the following: Employee advancement, appraisal, or discipline; Complaints, or investigations of complaints, concerning an event or transaction in which 2 VERIFIED FOR Wlli'l? OF TRADITIONAL COMPLAINT FOR RELIEF AND RELIEF she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.? 9. 011 September 30, 2018, Governor Brown approved Senate Bill 1421. (?813 1421?) which amended Penal Code sections 832.? and 832.8 relating to peace officer personnel records. SB 1421 provided that peace officer or custodial of?cer personnel records and information concerning the following categories of incidents shall not be con?dential, and shall be made available for public inspection pursuant to the CPRA: a) an incident involving the discharge ofa firearm at a person by a peace officer or custodial officer; b) an incident in which the use of force by a peace of?cer or custodial officer against a person resulted in death, or in great bodily injury; c) an incident in which a sustained ?nding was made by any law enforcement agency or oversight agency that a peace of?cer or custodial of?cer engaged in sexual assault involving a member of the public; and d) an incident in which a sustained ?nding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial of?cer 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, ?ling false reports, destruction, falsifying, or concealing of evidence. (Attached hereto as Exhibit A and made a part hereof as though fully set forth is a true and correct copy of Chapter 988 of the 2017- 2018 Regular Session, SB 1421.) .10. SB 1421 was enacted during the regular legislative session, and not designated as ?urgent." Accordingly, its amendments were effective January 1, 201. 9. (Gov. Code 9600.) 11.. SB 142] contains no legislative direction for a retroactiVe application of the amendments to Penal Code sections 832.? and 832.8, including no such direction as to the amendment?s application to peace of?cer personnel records reflecting conduct or arising out of incidents occurring prior to January 1, 2019 information deemed con?dential as a matter of law. 12. In a letter dated January 22, 2019, Bruce Goodmiller, City Attorney for the City, con?rmed to counsel for the RPOA that the City will publicly disclose personnel records created before January 1, 2019 if such records fall within the de?nition of Penal Code section 832.7 as amended by BB 1421, such that the City will apply SB 1421?s amendments ?retroactively." (Attached 3 VERIFIED PETITION FOR WRIT 011' TRADITIONAL COMPLAINT FOR RELIEF AND RELIEF hereto as Exhibit and made a part hereof is a true and correct copy of the letter dated January 22, 2019 from the City Attorney to RPOA counsel.) 13. SB 1421 amended Penal Code section 332.7, effective January 1, 2019, to eliminate the longstanding statutory con?dentiality of specified peace officer personnel records, and the information contained therein, maintained by public agencies in order to make such records and information available for public inspection pursuant. to the CPRA effective January 1, 2019. 14. SB 1421 does not contain any express provision or language requiring retroactivity or any clear indication that the Legislature intended the statute to operate retroactively so as to be applied and enforced with respect to peace of?cer personnel records and information which arose out of incidents involving peace of?cer conduct occurring prior to January 1, 2019. 15. The amendments constitute a substantial and adverse change to the existing privacy rights of the Petitioner?s represented peace of?cers. Pursuant to California Constitution, article 1, section 3, subdivision paragraph (3), any broad construction of statutes pertaining to the right of access to information of public agencies (such as the CPRA) does not supersede the construction of statutes that protect the constitutional right of privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace of?cer. 16. Petitioner?s represented peace of?cers will suffer irreparable injury and damage by the retroactive application of SB 1421's amendments, in that such an application would unlawfully violate the constitutional and statutory protection of peace officers to the confidentiality of their peace of?cer personnel records regarding incidents or reflecting conduct occurring prior to January I, 2019. Petitioner has a beneficial interest in Respondents? compliance with their ministerial duties not to violate Petitioner?s represented peace of?cers? confidentiality rights by applying SB 1421 amendments retroactively. SECOND CAUSE OF ACTION DECLARATORY RELIEF 13.- For a Second Cause of Action by Petitioner against the City; Chief; and Does 1 through 20, inclusive, for Declaratory Relief, Petitioner realleges paragraphs 1 through 17 and further alleges as follows: a VERIFIED PETITION FOR WRIT OF TRADITIONAL COMPLAINT 170R DECLARATORV RELIEFAND INJUNCTIVE RELIEF actual controversy has arisen and now exists, between Petitioner and Respondents regarding the following: (1) whether Respondents? stated intention to apply SB 1421?s amendments to peace of?cer personnel records and information. reflecting speci?ed peace of?cer conduct occurring prior to January 1, 2019 is a retroactive application and enforcement of SB 1421; (2) whether such application violates the right of con?dentiality and privacy of such peace of?cers to information in their personnel ?les protected by California Constitution, article 1, section 3, subdivision paragraph (3) and by the pie-existing statutory provisions of Penal Code sections 332.7, 832.8 and Evidence Code sections 1043 and 1045; and (3) whether such retroactive application is contrary to the purpose of any applicablcjudicial protective orders issued prior to January 1, 2019 during in-camera proceedings conducted pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 to protect the right of privacy of peace of?cers. 20. Such a udicial determinatioa is necessary and proper in order that the parties may ascertain their respective legal rights and duties where: a) SB 1421 amending Penal Code section 832.7 eliminates the well-established statutory and constitutional con?dentiality of speci?ed peace of?cer and custodial peace of?cer personnel records and does not contain an express retroactiyity provision nor legislative intent to rescind previously conferred privacy rights to peace of?cers; and, b) Respondents intend to make such peace of?cer personnel records and information arising prior to January 1, 2019 available for public inspection. 21. There are no effective administrative remedies available to compel the relief sought herein against Respondents. THIRD CAUSE OF ACTION INJUNCTIVE RELIEF 22. For a Third Cause of Action by Petitioner against Respondents City; Chief; and Docs throagh 20, inclusive, for lnjunetive Relief, Petitioner reallegcs paragraphs 1 through 21, and further alleges as follows: 23. Unless and until Petitioner?s request for injunctivc relief, including a Temporary Restraining Order, Preliminary Injunction and Permanent Injunction are granted by this Court restraining and enjoining Respondents from retroactively enforcing or applying SB 1421 ?s amendments to Penal Code sections 832.? and 832.8, Petitioner?s represented employees will suffer 5 VERIFIED PETITION FOR 0F TRADITIONAL COMPLAINT FOR DECLARATORY RELIEF AND INJUNCTIVE RELIEF irreparable harm to their statutory and constitutional privacy rights that far outweighs any alleged detriment to Respondents or the public. 24. As a consequence of the exceedingly short ten (.10) day time frame for Respondents to respond to public records requests under Government Code section 6253(c), and Respondents? stated intend to release personnel records reflecting conduct or incidents occurring prior to January 1, 2019, a regularly noticed hearing on a preliminary injunction would not provide timely relief to Petitioner?s represented peace officers whose statutory and constitutional privacy rights are imminently jeopardized. Therefore, a Temporary Restraining Order is appropriate and necessary to maintain the status quo pending a declaratory adjudication by this Court as to the rights and obligations of the parties. 25. There is no adequate legal remedy to compensate Petitioner's represented peace officers for the unlawful disclosure of their confidential personnel tile information. WHEREFORE, Petitioner RPOA requests the following relief against Respondents City, Chief, and Does 1?20, and each of them as follows: FIRST CAUSE OF ACTION 1. Following the hearing upon the Petition, the Court issue a Peremptory Writ of Mandate directing Respondents and their agents, employees and representatives to refrain from retroactively enforcing or applying the amendments to Califomia Penal Code sections 832.? and 832.8 implemented by SE 1421 in any manner which would result in the disclosure or production of peace officer personnel records regarding incidents or re?ecting conduct occurring prior to January 1, 2019; 2. Petitioner be awarded attorneys? fees pursuant to Code of Civil Procedure section 1021.5; 3. Petitioner be awarded and costs of suit; and, 4. For such other and further relief as the Court may deem just and proper. SECOND CAUSE OF ACTION 1. This Cetut render ajudieial determination that SB 1421?s amendments to Penal Code sections 832.7 and 832.8 cannot legally be enforced or applied by Respondents or their agents, employees and representatives in any manner which would result in the disclosure or production of (i VERIFIED PETITION FOR WRIT OF TRADITIONAL FOR DECLARATOIIY RELIEF AND RELIEF 25_ 26'? 27 23 peace officers personnel records regarding incidents or reflecting conduct occurring prior to January 1, 2019 that would not have previously been subject to disclosure or production; 2. Petitioner be awarded attorneys" fees pursuant to Code of Civil Procedure section 1021.5; 3. Petitioner be awarded and costs of suit; and, 4. For such other and further relief as the Court may deem just and proper. THIRD CAUSE OF ACTION 1. This Court issue an Order requiring Respondents, and each. of them, to show cause why a Preliminary Injunction should not issue, pending ajudicial determination on the Second Cause of Action. for Declaratory Relief; 2. That pending the hearing on the Order to Show Cause, and until this Court otherwise directs, the Court issue a Temporary Restraining Order prohibiting any retroactive enforcement or application of SB 1421?s amendments by Respondents or their agents, employees and representatives in any manner which would result in the disclosure or production of peace of?cer personnel records and information regarding incidents or reflecting conduct occurring prior to January 1, 2019 that would not have previously been subject to disclosure or production; 3. That following the hearing on the Order to Show Cause, the Court issue a Preliminary Injunction restraining and enjoining Respondents and their agents, employees and representatives item retroactively enforcing or applying the amendments to California Penal Code sections 832.7 and 832.8 implemented by SB 1421 in any manner which would result in the disclosure or production ot?peaec of?cer persoonel records regarding incidents or reflecting conduct occurring prior to January 1, 2019 that would not have previously been Subject to disclosure or production; 4. That following atrial on the merits, the Coort issue a Permanent Injunction ordering, restraining and enjoining Respondents and their agents, employees and representatives from retroactively enforcing or applying the amendments to California Penal Code sections 832.7 and 832.8 implemented by SE 1421 in any manner which would result in the disclosure or production of peace officer personnel records regarding incidents or reflecting conduct occurring prior to January 2019 that would not have previously been subject to disclosure or production; 7 VERIFIED PETITION FOR WRIT OF TRADITIONAL COMPLAINT FDR RELIEF AND RELIEF ram Petitioner be awarded attorneys? fees pursuant to Code of Civil Procedure seotion 1021.5; 6. Petitioner be awarded and costs of suit; and 7. For such other and further relief as the Court may deomjust and proper. Dated: January 24, 2019 Reapeotfully Submitted, RAINS LUCIA STERN ST. PHALLE SLLVIILR, PC Zachery A. Lopes I Attorneys for Petitioner/Plaintiff Richmond Police Of?cers? Association 3 VERIFIED PETITION FOR WRIT OF COMPLAINT FUR DECLARATOIIY RELIEF AND RELIEF VERIFICATION I, Benjamin 'l?herriault, am the duly elected President of the Richmond Police Of?cers? Association Petitioner in this action. I have read the foregoing VERIFIED PETITION FOR WRIT OF TRADITIONAL MANDATE 1035]; COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF and know the contents thereof?. The facts a3 alleged therein are true to the best of my knowledge, except as to those matters alleged on information and belief} and as to those matters, I believe them to be true. [have authorization to verify such facts on behalf of the RPOA. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ALATL r-{sxi STATE 0 Executed on Januaqegip, 2019, in ?lo/meal a? Benjarhin Therriault I VERIFICATION 1 INDEX OF EXHIBITS 3 Exhibit A: Chapter 988 o?Fthe 20112018 Regular Session, SB 1421. 4 Exhibit B: Letter dated January 22, 2019 from the City Attorney to RPOA counselVERIFIED PETITION FOR WRIT OF TRADITIONAL FUR DECIARATORY RELIEF AND INJUNCTIVF. RELIEF EXHIBIT A UF CALWUKHIA AUTHENTICATED . lmI-ll Senate Bill No. 1421 CH AFTER 983 An act to amend Sections 332.7 and 332.8 of the Penal Code, relating to peace officer records. [Approved by Governor September 30. 2018. Filed with Secretary of State September 30, 2018.] LEG ISLATIVB DIGEST SB 1421, Skinner. Peace of?cers: release of records. The California Public Itceords Act requires a state or local agency, as de?ned, to make public records available for inspection, subject to certain exceptions. Existing law requires any peace of?cer or custodial of?cer personnel records, as de?ned, and any records maintained by any state or local agency relating to complaints against peace officers and custodial of?cers, or any information obtained from these records, to be con?dential and prohibits the disclosure of those records in any criminal or civil proceeding, except by discovery. Existing law describes exceptions to this requirement for investigations or proceedings concerning the conduct of peaCe of?cers or custodial of?cers, and for an agency or department that employs these of?cers, conducted by a grand jury, a district attorney?s of?ce, or the Attorney General?s o?ice. This bill would require, notwithstanding any other law, certain peace o?icer or custodial of?cer personnel resords and records relating to speci?ed incidents, complaints, and investigations involving peace of?cers and custodial of?cers to be made available for public inspection pursuant to the California Public Records Act. The bill would de?ne the scope of disclosable records. The bill would require records disclosed pursuant to this provision to be redacted only to remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and we tit-related information of peace of?cers and custodial of?cers, to preserve the anonymity of complainants and witnesses, or to protect con?dential medical, ?nancial, or other information in which disclosure would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about misconduct by peace of?cers and custodial of?cers, or where there is a speci?c, particularized reason to believe that disclosure would pose a signi?cant danger to the physical safety 'of the peace of?cer, Custodial of?cer, or others. Additionally the bill would authorize redaction where, on the facts of the particular case, the public interest served by nondisclosure clearly outweighs the public interest served by disclosure. The bill would allow the delay of disclosure, as speei? ed, for records relating to an open investigation or court proceeding, subject to certain limitations. 91 Ch. ass no 2 The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public of?cials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains ?ndings demonstratiu that the enactment furthers the constitutional requirements relating to this purpose. This bill would make legislative ?ndings to that effect. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures formatting that reimbursement. This bill would provide that no reimbursement is required by this act for a speci?ed reason. Thepeopie ofihe Stars- of Coii?imio do cocci osfoll'ows: SECTION 1. The Legislature finds and declares all of the following: Peace officers help to provide one of our state?s most ?indamental government services. To empower peace of?cers to ful?ll their mission, the people of California vest them with extraordinary authority the powers to detain, search, arrest, and use deadly force. Our society depends on peace of?cers? faithful exercise of that authority. Misuse ot?that authority can lead to grave constitutional violations, harms to liberty and the inherent sanctity of human life, as well as signi?cant public unrest. The public has a right to know all about serious police misconduct, as Well as about shootings and other serious uses of force. Concealing crucial public safety matters such as of?cer 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 otticers to do their jobs, and endangers public safety. SEC. 2. Section 332.7 of the Penal Code is amended to read: 332.7. Except as provided in subdivision the personnel records of peace of?cers and custodial of?cers and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are con?dential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. his section shall not apply to investigations or proceedings concerning the conduct ot'peacc of?cers or custodial of?cers, or an agency or department that employs these officers, conducted by a grand jury, a district attorney?s cities, or the Attorney General's office. Notwithstanding subdivision subdivision (0 of Section 6254 of the Goveinment Code, or any other law, the following peace of?cer or custodial officer personnel records and records maintained by any state or local agency shall not be con?dential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 91 ?3 Ch. 988 (commencing with Section 6250) of Division '7 ct" Title 1 of the Government Code): (A) A record relating to the report, investigation, or ?ndings of any of the Following: An incident implying the discharge of a ?rearm at a person by a peace of?cer or custodial of?cer. (ii) An incident in which the use of force by a peace of?cer or custodial of?cer against a person resulted in death, or in great bodily injury. (B) Any record relating to an incident in which a sustained ?nding was made by any law enforcement agency or oversight agency that a peace of?cer or custodial of?cer engaged in sexual assault involving a member of the public. (ii) As used in this subparagraph, ?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, o?ier of leniency or other of?cial favor, or under the color of authority. For purposes of this de?nition, the propositioning for or commission of any sexual not while on duty is considered a sexual assault. As used in this subparagraph, ?member of the public" means any person not employed by the of?cer?s employing agency and includes any participant in a cadet, explorer, or other youth program af?liated with the agency. (C) Any record relating to an incident in which a sustained ?nding was made by any law enforcement agency or oversight agency of dishonesty by a peace of?cer or custodial officer directly relating to the reporting, investigation, or prosecution oi?a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace of?cer or custodial o?icer, including, but not limited to, any sustained ?nding of perjury, false statements, ?ling false reports, destruction, falsifying, or concealing of evidence. (2) Records that shall be released pursuant to this subdivision include all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the district attain ey or to any person or body charged with determining whether to ?le criminal charges against an of?cer in connection with an incident, or whether the officer?s action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take; documents setting forth ?ndings or recommended ?ndings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modi?cations of discipline due to the Skelly or grievance process, and letters indicating ?nal imposition of discipline or other documentation re?ecting implementation of corrective action. (3) A record from a separate and prior investigation or assessment of a separate incident shall not be released unless it is independently subject to disclosure pursuant to this subdivision. 9 Ch. 938 4 (4) If an investigation or incident involves multiple of?cers, information about allegations of misconduct by, or the analysis or disposition of an investigation of, an of?cer shall not he released pursuant to suhparagraph (B) or (C) of paragraph (1), unless it relates to a sustained ?nding against that of?cer. However, factual information about that action of an of?cer during an incident. or the statements of an officer about an incident, shall be released if they are relevant to a sustained ?nding against another of?cer that is subject to release pursuant to subparagraph (B) or (C) of paragraph (1). (5) An agency shall redaet a record disclosed pursuant to this section only for any of the following purposes: (A) To remove personal data or information, such as a borne address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial of?cers. (B) To preserve the anonymity of complainants and witnesses. (C) To protect confidential medical, ?nancial, or other information of which disclosure is speci?cally prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about misconduct and serious use of force by peace of?cers and custodial of?cers. (D) Where there is a speci?c, articulable, and particular-iced reason to believe that disclosure of the record would pose a signi?cant danger to the physical safety of the peace of?cer, custodial officer, or another person. (6) Notwithstanding paragraph (5), an agency may redact a record disclosed pursuant to this section, including personal identifying information, where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information. (7) An agency may withhold a record of an incident described in subparagraph (A) of paragraph (1) that is the subject of an active criminal or administrative investigation, in accordance with any of the following: (A) During an active criminal investigation, disclosure may be delayed for up to 60 days from the date the use of force occurred or until the district attorney determines whether to ?le criminal charges related to the use of force, whichever occurs sooner. If an agency delays disclosure pursuant to this clause, the agency shall provide, in writing, the speci?c basis for the agency's determination that the interest in delaying disclosure clearly outweighs the public interest in disclosure. This writing shall include the estimated date for disclosure of the withheld infomiation. (ii) After 60 days from the 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 of?cer who used the force. If an agency delays disclosure pursuant to this clause, the agency shall, at 180?day intervals as necessary, provide, in writing, 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 9] Ch. 938 of the withheld information. Information withheld by the agency shall be disclosed when the speci?c basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 13 months after the date of the incident, whichever occurs sooner. After 60 days from the 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 of?cer who used the force. If an. agency delays disclosure under this clause, the agency shall, at lain-day intervals, provide, in writing, the speci?c 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 speci?c basis for withholding is resolved, when the investigation or proceeding is no longer centre, or by no later than 18 months alter the date ofthe 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 use of serious force by peace oi?cers and custodial o?icers. The agency shall release all information subject to disclosure that does not cause substantial prejudice, including any documents that have otherwise become available. (iv) In an action to compel disclosure brought pursuant to Section 6258 of the Government Code, an agency mayjustify delay by ?ling an application to seal the basis for withholding, in accordance with Rule 2.550 of the California Rules of Court, or any snceessor rule thereto, if disclosure of the written basis itself would impact a privilege or compromise a pending investigation. (B) If criminal. charges are ?led related to the incident in which force Was used, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial or, il?a plea of guilty or no contest is entered, the time to withdraw the plea pursuant to Section 1018. (C) During an administrative investigation into an incident described in subparagraph (A) of paragraph (I), the agency may delay the disclosure of records or information until the investigating agency determines whether the use of force violated a law or agency policy, but no longer than 130 days after the date of the employing agency?s discovery of the use of force, or allegation of use of force, by a person authorized to initiate an investigation, or 30 days after the close of any criminal investigation related to the peace of?cer or custodial of?cer's use of force, whichever is later. A record of a civilian complaint, or the investigations, findings, or dispositions ofthat complaint, shall not be released pursuant to this section if the complaint is ?'chlous, as defined in Section 128.5 of the Code of Civil Procedure, or if the complaint is unfounded. Ell Ch. 988 6 Notwithstanding subdivisions and a department or-agency shall release to the complaining party a copy of his or her own statements at the time the complaint is ?led. Notwithstanding subdivisions and a department or agency that employs peace or custodial of?cers may disseminate data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its of?cers if that information is in a form which does not identify the individuals involved. Notwithstanding subdivisions and a department or agency that employs peace or custodial officers may release factual information concerning a disciplinary investigation if the o?icer who is the subject of the disciplinary investigation, or the of?cer's agent or representative, publicly makes a statement he or she knows to be false concerning the investigation or the imposition of disciplinary action. information may not be disclosed by the peace or custodial of?cer's employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision is limited to facts contained in the o?icer?s personnel ?le concerning the disciplinary investigation or imposition of disciplinary action that speci?cally refute the false statements made public by the peace or custodial of?cer or his or her agent or representative. The department or agency shall provide written notificntinn to the complaining party of the disposition of the complaint within 30 days of the disposition. (2) The noti?cation described in this subdivision shall not be conclusive or binding or admissible as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court, or judge of this state or the United States. This section does not affect the discovery or disclosure of information contained in a peace or custodial of?cer's personnel ?le pursuant to Section 1043 of the Evidence Code. This section does not supersede or affect the criminal discovery process outlined in Chapter 1t] (commencing 1with Section 1054) of Title 6 of Part 2, or the admissibility of records pursuant to subdivision which codi?es the court decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531. Nothing in this chapter is intended to limit the public?s right of access as provided for in Long Beach Police Of?cers Association v. City of Long Beach (20] 4) 59 Cal.4th 59. SEC. 3. Section 332.3 of the Penal Code is amended to read: 332.3. As used in Section 832.7, the following words or phrases have the following meanings: ?Personnel records? means any file maintained under that individual's name by his or her employing agency and containing records relating to any of the following: 9 7 Ch. ass (1) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. (2) Medical history. (3) Election of employee bene?ts. (4) Employee advancement, appraisal, or discipline. (5) Complaints, 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. (6) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy. ?Sustained? means a ?nal detennination by an investigating agency, commission, board, homing of?cer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code, that the actions of the peace officer or custodial of?cer were found to violate law or department policy. ?Unfounded? means that an investigation clearly establishes that the allegation is not true. SEC. 4. The Legislature ?nds and declares that Section 2 of this act, which amends Section 332,? of the Penal Code, ?irthers, within the meaning of paragraph of subdivision of Section 3 of?rticle I of the California Constitution, the purposes of that constitutional. Section as it relates to the right of public access to the meetings of local public bodies or the writings of local public of?cials and local agencies. Pursuant to paragraph (7) of." subdivision of Section 3 of Article I of the California Constitution, the Legislature makes the following ?ndings: The public has a strong, compelling interest in law enforcement transparency because it is essential to having a just and democratic society. SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article of the California Constitution because the only,r costs that may be incurred by a local agency or school district under this act would result from a legislative mandate that is within the scope of paragraph (7) of subdivision of Section 3 of Article I of the California Constitution. 9 EXHIBIT g5. de-ile-J an mum-I Paw CITY ATTORNEY cu Ili?hni'lnul BFIUCE REED GOODMILLER January 22, 2019 Mr. Rockne A. Lucia Rains Lucia Stern St. Phalie Silver, PC 2300 Costa Boulevard, Suite 500 Pleasant Hill, CA 94523 Re: Appiication of Senate Bil! 1421/?enal Code 832.7 Dear Mr. Lucia, At your request, I am writing to con?rm that the City?s position is, absent a court order to the contrary, records created before January 1, 2019 will be produced if they are in the City?s custody, possession or control and ifthey fall within the requirements of Penal Code 832.7. To use the vemacuiar, the City joins other cities in applying SB 1421 ?retroactively.? Ragang Bruce Reed Goodmiller City Attorney 450 Civic Center Plaza, PD. Box 4046, Richmond, CA 94804-1630 Telephone: (510} 620-6509 Fax: (510) 620-6518