Peace Officer Internal Investigation Open Records

Under current law a records custodian may deny access to records of investigations conducted by or of intelligence information or security procedures of any sheriff, district attorney, or police department or any criminal justice investigatory files compiled for any other law enforcement purpose on the ground that disclosure would be contrary to the public interest. The bill states that prior to determining whether disclosure would be contrary to the public interest, the custodian shall perform an individualized analysis of each of the specific records requested by balancing:

• The privacy interests of the individual who may be impacted by a decision to allow inspection;
• The agency's interest in keeping confidential information confidential;
• The agency's interest in pursuing ongoing investigations without compromising them;
• The public purpose to be served in allowing inspection; and
• Other pertinent considerations relevant to the particular request.

The bill further applies the following provisions to records regarding an internal investigation related to the on-duty or in-uniform conduct of a peace officer involving a member of the public:

• When the custodian is performing the balancing test described above, the custodian shall adhere to the following principles: There is a compelling public interest in public inspection of completed internal investigation files related to a peace officer's on-duty or in-uniform conduct involving a member of the public; public access to internal investigation files enhances the effectiveness of internal investigations, rather than impairing them; and transparency enhances public confidence in the agency. Peace officers do not have a reasonable expectation of privacy in on-duty or in-uniform conduct involving a member of the public.
• If, after performing the balancing test described above, the custodian makes a preliminary determination that the factors weigh against release, the custodian shall consider whether redaction of the records would satisfy the objective of disclosure while also addressing privacy concerns. The custodian shall redact sparingly in order to maximize the amount of information available to the public.
• If, after performing the required balancing test and considering redaction, the custodian determines that the factors weigh against release, the custodian may deny disclosure of the records or any portion thereof.
• If the custodian denies disclosure of the records, the custodian shall upon request provide a written explanation of the basis for the denial, including articulation of the custodian's balancing of the public and private interests.
• Any local policy, local rule, or ordinance that prohibits custodians from disclosing records of closed internal investigations related to on-duty or in-uniform conduct of a peace officer involving a member of the public is unenforceable; except that the custodian of an internal investigation may deny inspection if the inspection is prohibited by rules promulgated by the supreme court or by a court order and the custodian may deny inspection pursuant to application of the bill.
  (Note: This summary applies to the reengrossed version of this bill as introduced in the second house.)