Public record disclosure under SB 1421

San Francisco 2019-2020

Office of the Public DefenderNovember 27, 2019

Records Received from DPA in 2019

Source: San Francisco Public Defender

0%

25%

50%

75%

100%

1/1/19 2/1/19 3/1/19 4/1/19 5/1/19 6/1/19 7/1/19 8/1/19 9/1/19 10/1/19 11/1/19

Per

cen

tag

e o

f a

ll S

FP

D O

ffic

ers

Percentage of SFPD Officers with Disclosed Records and No Records

Current DPA disclosure

percentage: 14%

DPA’s Production of SB 1421 Records

*The Public Defender will consider each disclosure of records “partial” unless informed by DPA that partial disclosure for an officer is complete.

Source: San Francisco Public Defender

No Response (Unknown)

201386%

No Records28712%

Partial Dislosures*392%

SB 1421 Records Received for SFPD Officers

No Response (Unknown) No Records Partial Dislosures

Firearm25

62%

GBI15

38%

Dishonesty0

0%

Sexual Assault0

0%

Number and Type of SB 1421 Records Received

Firearm GBI Dishonesty Sexual Assault

Projection of DPA Records Received through 2025

Source: San Francisco Public Defender

0%

25%

50%

75%

100%

01/01/19 01/01/20 01/01/21 01/01/22 01/01/23 01/01/24 01/01/25

Per

cen

tag

e o

f a

ll S

FP

D O

ffic

ers

Percentage of SFPD Officers with Disclosed Records and No Records

Records Received from SFPD in 2019

Source: San Francisco Public Defender

0%

25%

50%

75%

100%

1/1/19 2/1/19 3/1/19 4/1/19 5/1/19 6/1/19 7/1/19 8/1/19 9/1/19 10/1/19 11/1/19

Per

cen

tag

e o

f O

ffic

ers

wit

h a

Res

po

nse

Percentage of SFPD Officers with Disclosed Records and No Records

Current SFPD disclosure

percentage: 5%

SFPD’s Production of SB 1421 Records

*The Public Defender will consider each disclosure of records “partial” unless informed by SFPD that partial disclosure for an officer is complete.

Source: San Francisco Public Defender

No Response (Unknown)

222495%

No Records572%

Partial Dislosures*

583%

Number of Records Received

No Response (Unknown) No Records Partial Dislosures

Firearm55

92%

GBI5

8%

Dishonesty0

0%

Sexual Assault0

0%

Number and Type of SB 1421 Record Received

Firearm GBI Dishonesty Sexual Assault

Projection of SFPD Records Received through 2025

Source: San Francisco Public Defender

0%

25%

50%

75%

100%

1/1/19 1/1/20 1/1/21 1/1/22 1/1/23 1/1/24 1/1/25

Per

cen

tea

ge

of

Off

icer

s w

ith

a R

esp

on

se

Percentage of SFPD Officers with Disclosed Records and No Records

Projected SFPD disclosure

percentage: 36%

Media Report of DPA & SFPD Staffing for SB 1421

Source: San Francisco Examiner article dated April 3, 2019

DPA August Statement on SB 1421 Staffing

Source: DPA statement created for August 24, 2019 SB 1421 symposium produced pursuant to a California Public Records Act Request

SFPD August Statement on SB 1421 Staffing

Source: SFPD statement created for August 24, 2019 SB 1421 symposium produced pursuant to a California Public Records Act Request

Draft 1421 Protocol increases delay and nonproduction

• Non-statutory delay should not be tolerated or promoted

• 14-day delays have no end and eviscerate any deadline (see Section III.A., p.7)

SFPD’s Production of SB 1421 RecordsTwenty-Third Letter of Extension

Source: Records Obtained Pursuant to a Public Records Act Request

SFPD’s Production of SB 1421 RecordsTwenty-Third Letter of Extension

Source: Records Obtained Pursuant to a Public Records Act Request

Draft 1421 Protocol increases delay and nonproduction

• Non-statutory delay should not be tolerated or promoted

• 14-day delays have no end and eviscerate any deadline (see Section III.A., p.7)

• Non-statutory notice to officers in Section II.A.4 (p.5) creates delay

• Non-statutory coordination between agencies in Section V (p.10) creates more delay

Draft 1421 Protocol increases delay and nonproduction

• “Sustained” defined by statute & not open for expansion

• PC 832.8 : “Sustained” means a final determination by an investigating agency, commission, board, hearing officer, 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 officer were found to violate law or department policy.

• By excluding members who retire or resign before process is completed, the protocol unlawfully amends the definition to require taking and exhausting appeals

• Protocol unlawfully blocks public access to DPA records. DPA can make a “sustained” finding where the Chief makes the same finding given “opportunity” for appeal thereafter

Draft 1421 Protocol increases delay and nonproduction

• Redaction

• SFPD and DPA redaction of all civilian names is not authorized

• Discretionary redaction in Section II.C. must be case-specific

Draft 1421 Protocol increases delay and nonproduction

DPA Redaction SFPD Redaction

Source: Records Obtained Pursuant to a Public Records Act Request

Draft 1421 Protocol increases delay and nonproduction

DPA Redaction

SFPD Redaction

Source: Records Obtained Pursuant to a Public Records Act Request

Draft 1421 Protocol increases delay and nonproduction

• Great bodily injury definition

• Section I.C.4.a misleadingly cites CALCRIM No. 810 (torture) for the definition of GBI, instead of CALCRIM 3160, the stand-alone GBI instruction

• Protocol should incorporate CALCRIM 3160 defining great bodily injury in group context: If a person uses substantial force “sufficient in combination with the force used by the others to cause” great bodily injury, each person is liable for the GBI

Achieving a goal of full and transparent 1421 compliance in 2020

• Establish a deadline and plan for complete 1421 compliance in 2020

• Dedicate adequate resources – two employees per agency is not enough

• Remove all non-statutory obstacles to SB 1421 production

• Establish a clear search protocol to search for and produce records –the draft protocol leaves wide discretion, compromising transparency

• Self-initiate investigation of publicized cases of police misconduct

• Prioritize claims of dishonesty, excessive force, bias