The California Legislature has passed SB 345, new legislation that would require California state and local law enforcement agencies to put most of their policies and procedures online. The bill is now before Governor Brown, who is a supporter of high tech but has close connections with law enforcement. So far, disappointingly, he seems to be balking at signing it.
If the bill becomes law, individuals will have better access to information about law enforcement policies and practices, while law enforcement agencies will provide better communication with their communities – including showcasing their most innovative policies and procedures, enhancing opportunities for better buy-in from their communities.
Some law enforcement agencies, like San Francisco Police Department, have already chosen to put their information online; others do not. The point of the bill is to make this consistent across California so everyone has access to information about their law enforcement agencies. The bill does not require law enforcement to disclose anything that isn’t already available to the public: all information covered by SB 345 is already considered a “public record,” available to anyone who makes a California Public Records Act request. Under SB 345, however, the public can have access to the same information far more simply, without having to file a request.
This law would be a wonderful step forward for law enforcement transparency, and also a great triumph for citizen democracy: the bill was written by a Bay Area private citizen!
Here is some information about SB 345, prepared during its travels through the State Assembly:
Question: What is SB 345?
Answer: SB 345 requires state and local law enforcement agencies to conspicuously post online their current standards, policies, practices, operating procedures and training materials that would otherwise be available to the public if a request was made pursuant to the California Public Records Act [“CPRA”].
Question: Does CPRA already cover this kind of information?
Answer: Yes. CPRA requires that government records shall be disclosed to the public, upon request, unless there is a specific reason not to do so.[1] On March 2, 2017, in a unanimous decision, the California Supreme Court emphasized the breadth and depth of CPRA in City of San Jose v. Sup. Court (Smith) (S218066) [broad reading of CPRA includes private emails of public officials.] The Court highlighted CPRA’s strong presumption that all public records are open for inspection and copying, except those categories of records specifically designated as “exempt” from disclosure. (Gov’t Code sections 6253(b), 6254):
Given the strong public policy of the people’s right to information concerning the people’s business (Gov. Code,§ 6250), and the constitutional mandate to construe statutes limiting the right of access narrowly (Cal. Const., art. I,§ 3, subd. (b)(2)), ‘all public records are subject to disclosure unless the Legislature has expressly provided to the contrary.’ [Smith, supra, at p. 5, citing Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 166, emphasis in original.]
Existing law, through CPRA, provides the public with “identifiable public records,” (California Government Code Section 6253,) defined as information, rather than merely documents and files. Police operating policies, procedures and training manuals are identifiable public records which are subject to disclosure through CPRA. (San Gabriel Tribune v. Superior Court (1983) 143Cal.App.3d 762, 774; Cook v. Craig (1976) 55 Cal.App.3d 773, 782.) Existing law, through CPRA, requires state and local governments to comply with requests for publicly available documents and requires state and local governments to pay in full the costs of those requests.
Question: Does SB 345 make any changes to what is currently subject to disclosure under CPRA?
Answer: No. Sensitive information that is already exempted from public disclosure under CPRA will remain exempted from public disclosure.
Question: What kinds of sensitive law enforcement information are currently exempted from disclosure under CPRA?
Answer: Certain sensitive information is specifically exempt from disclosure pursuant to Government Code section 6254, including but not limited to personnel records, records of complaints against officers, intelligence information, security procedures and certain crime victim information.
A law enforcement agency may justify withholding information from the public if the agency can demonstrate “that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Government Code section 6255.) Any response denying disclosure must be in writing.
Question: What problems are there for members of the public who currently use CPRA to request law enforcement information?
Answer: Although existing law provides that members of the public may use CPRA to request law enforcement training, policies and procedures, there are currently wide gaps in compliance.
Question: Why are there current gaps in CPRA compliance?
Answer: First, there are general problems with existing law, which does not standardize law enforcement regulations or training in either their substantive content or even their labels or designations. For example, some law enforcement agencies refer to their regulations as “Department General Orders,” while others may use phrases like “Policies and Procedures.” As a result, existing law also does not provide a member of the public with any way to determine which organization has the information sought, or what format the information is stored in, or even what specific language should be used to ensure the CPRA request actually will get fulfilled.
Second, there are specific compliance problems with both state and local law enforcement agencies:
(1) State agencies: Existing law also provides that California Police Officer Standards and Training Commission (“POST”) set forth policies and procedures for most California peace officers. Existing law also requires most California law enforcement officers to obtain a California POST Basic Certificate within a certain amount of time in order to continue to exercise peace officer powers. (Penal Code section 830.1(a).) However, existing law does not require the actual substantive content of this California POST training to be made currently publically available online, and such online materials are currently password protected and only available to members of law enforcement.
(2) Local agencies: Existing law allows individual California local law enforcement department to create their own regulations, including policies and procedures, training and department general orders. Theoretically, this allows for different law enforcement agencies to develop their own models and best practices. However, existing law does not require the actual substantive content of these regulations to be made publicly available in a searchable format and kept current online, which makes it cumbersome for members of the public to access and compare these different models and practices.
Question: Will SB 345 benefit communities and members of the public?
Answer: Yes. The only way communities can participate in the development and the evaluation of state and local law enforcement policies is to actually know what these policies, practices and trainings are. Providing access to these policies and procedures on each law enforcement agency’s public website increases transparency and access to information by allowing residents to review policies and procedures that affect their encounters with police.
SB 345 also fosters better community relations by providing the public with information about each department’s policies and procedures.
Question: Are there studies to support SB 345?
Answer: Yes. Over a dozen years ago, the Seattle Police Department (“SPD”) became one of the first law enforcement agencies in the United States to post its orders online. Soon after, the Seattle Office of Professional Accountability (“OPA”) noted many tangible benefits from SPD posting of its orders online. OPA reported that media and citizen inquiries into police conduct became better informed because the public and news outlets had better access to how SPD operated prior to contacting OPA or SPD. OPA noted it could direct citizens to the website for examination of relevant policies at their convenience, and community outreach was made more meaningful by the ability to reference the publicly available manual.[2]
Subsequently, police accountability expert Professor Samuel Walker of the University of Nebraska at Omaha, recognized SPD for bucking the traditional “attitude of secrecy” that “not only denies to the public basic information about official police policies, but aggravates community relations by sending a message to people that they have no right to know how the department operates.”[3] Professor Walker has submitted a detailed letter in support of SB 345.
More recent support for SB 345 can be found in recommendations from President Obama’s Task Force on 21st Century Policing (U.S. Department of Justice’s Office of Community Oriented Policing Service, Interim Report of the President’s Task Force on 21st Century Policing (Mar. 2015), at 1.) In addressing the issue of transparency and accessibility, the task force recommended that law enforcement agencies make all department policies available for public review. (Id. at 11.) Electronic access to police policies and procedures is consistent with the goals of enhancing police-community relations and furthers procedural justice efforts set out in the President’s Task Force on 21st Century Policing, Action Item 1.5.1: “In order to achieve external legitimacy, law enforcement agencies should involve the community in the process of developing and evaluating policies and procedures.”[4]
Question: Are there law enforcement agencies already putting this kind of information online?
Answer: Yes. By our last informal count, between 20-30 California law enforcement agencies – and at least 20 more nationwide – already post and maintain all or part of their regulations and rules online.
Question: Why are some law enforcement agencies already doing this, even though they are not yet required to do so?
Answer:
- Because they know communities and law enforcement each benefit by electronic access to police policies and procedures.
- Because they know that unnecessary costs, labor & paperwork associated with requests for these materials will be greatly reduced, thereby making the process more streamlined, efficient and environmentally sound.
- Because they know the only way communities can participate in the development and the evaluation of their police department’s policies is to provide members of the community with better access to these policies, practices and trainings.
See, for example, this statement posted on the Santa Ana Police Department website:
The Santa Ana Police Department has numerous policies that guide its employees in their duties enhancing safety in our community. Policies are based on policing best practices, current legal standards and community safety needs. The department strives to achieve the upmost transparency in providing public safety services to the community. Department policies ensure that the community has the opportunity to be well informed and that our police officers receive the most up to date guidance available in policing. We believe placing these policies in a location easily accessible to the community helps broaden communication and increase community trust. (Emphasis added.)[5]
Question: What will SB 345 cost?
Answer: It’s not exactly clear. As far as we know, no one has actually compiled the costs of complying with CPRA, including the exact number of CPRA requests filed by members of the public on any given day or during any given year, or how many CPRA requests are received annually by each law enforcement agency.
However, we do know that each law enforcement agency in California must comply with CPRA: responses to CPRA requests are mandatory, not optional.
For those agencies that are already posting and maintaining their materials online, there will be no additional cost. For those agencies that are not already doing so, there will be an initial cost with eventual cost savings. By posting and maintaining this information online, law enforcement agencies will cut down staff time and resources necessary to respond to each and every CPRA request.
Finally, we know that many law enforcement agencies – including smaller and rural law enforcement agencies – are already posting their information online because, in part, it is a cost-effective and fiscally responsible choice. These law enforcement agencies would not already be posting their information online if it was cost prohibitive to do so.
Question: Who sponsors and supports SB 345?
- Answer: California Public Defenders Association (sponsor)
- ACLU of California (Natasha Minsker testified in support of the bill at both the Senate & Assembly Public Safety Committee hearings)
- National Association of Public Defenders
- Electronic Frontier Foundation
- Gideon’s Promise
- Northern California Innocence Project
- Dr. Samuel Walker, Police Accountability Expert and Author of several books on police accountability
- Silicon Valley De-Bug
- California Attorneys for Criminal Justice
Question: Who opposes SB 345?
Answer: California State Sheriffs’ Association
Question: Why should I support SB 345?
Answer: Because SB 345 is a simple, cost-effective, common sense way to improve police-community relations while increasing transparency and access to police information.
[1] See e.g., “Summary of the California Public Records Act 2004,” California Attorney General’s Office, August 2004.
[2] See Washington, D.C.’s Police Complaint Board’s Recommendation for Publication of MPD Orders on the Internet (July 14, 2005), p. 2, available at: http://policecomplaints.dc.gov/sites/default/files/dc/sites/police%20complaints/publication/attachments/policy_rec_mpd_general_orders.pdf
[3] Samuel Walker, The New World of Police Accountability 190 (2004).
[4] In December 2014, President Barack Obama established the Task Force on 21st Century Policing. The Task Force identified best practices and offered 58 recommendations on how policing practices can promote effective crime reduction while building public trust. The Task Force recommendations are centered on six main objectives: Building Trust and Legitimacy, Policy and Oversight, Technology and Social Media, Community Policing and Crime Reduction, Officer Training and Education, and Officer Safety and Wellness. The Task Force’s final report is available at: http://www.cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.
