Thanks to a recent state law, the public now has a right to see investigation files about police officers who were found to have committed serious misconduct – including lying, wrongfully killing someone, or sexual assault.
But if you ask the OC Sheriff’s Department for anything older than a few years, you’re largely out of luck.
Sheriff officials have a policy of destroying their misconduct records after five years – with narrow exceptions if there’s a legal hold or pending records request.
It’s the bare minimum they’re required to keep the documents under state law.
This thwarts the public’s ability to understand how misconduct is handled, says David Snyder, an attorney who serves as executive director of the First Amendment Coalition.
“Once the records are destroyed, that means they’re not available to anybody – internal or external. That means that for police misconduct records, which are of heightened interest to the public, the public will have no ability to learn what they’re entitled to learn, if the [investigation was finished] more than five years ago.”
David Snyder, an attorney who serves as executive director of the First Amendment Coalition
Sheriff officials wouldn’t give a reason for why they don’t keep the records for longer.
Spokespeople for Sheriff Don Barnes noted state law requires keeping the files for “at least 5 years,” and said the department’s five-year retention policy was approved by the county Board of Supervisors.
But when it comes to why they’re not kept for longer, sheriff officials said they already answered the question and “have no additional response to provide at this time.”
Asked again, Barnes’ spokeswoman said the department is meeting the state law requirements for retaining the records.
A recent contract by another county agency shows it costs the county less than 10 cents per document to digitize paper records – about $188,000 per month to digitize 2.1 million documents.
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Voice of OC discovered the destruction policy after requesting a list of cases where deputies were found to have lied in the last 10 years.
The department responded with a list of cases that only covered a five-year period, from 2013 to 2018.
When a reporter asked why, the answer was that the department’s policy is to keep misconduct investigation records for five years.
In one of the available cases from recent years, the Sheriff’s Department kept a deputy on patrol after he was placed under criminal investigaiton over an alleged sexual assault. Two months later, the deputy was accused of assaulting a woman in an incident a judge later described as rape.
Orange County taxpayers were ordered to pay $2.25 million to the alleged rape victim, after a civil jury found the Sheriff’s Department had responsibility because of its policy that kept the deputy on patrol interacting with the public while under criminal investigation.
In another case, the department found a deputy violated department policy against tampering with evidence – and then promoted him to sergeant after a 60-day suspension.
“It seems to me a department would want to know about and understand instances of misconduct – regardless of when they happen – in order to improve a department’s policies and track record with respect to misconduct,” Snyder said.
A big part of that is keeping records of what happened in the past, he added.
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State lawmakers are now looking to change the law – so police agencies have to keep these records for longer.
A bill known as SB-16, by Sen. Nancy Skinner, would extend the minimum requirement to keep records from five years to 15 years for investigations that found officers did engage in misconduct.
“Californians have a right to know when an officer has a history of bad behavior. That’s why my bill SB 16 requires law enforcement agencies to hold records related to officer misconduct for at least 15 years, and other police records for at least five,” Skinner said in a statement to Voice of OC.
“When agencies destroy records, they destroy public trust. And with records now digital, keeping and storing records is not difficult.”
The bill would also expand the types of misconduct records the public can access, to include cases where officers were found to have made unlawful arrests or searches, failed to intervene when another officer used excessive force, and engaged in discrimination.
And it would require agencies to release misconduct records even when an officer resigns before an investigation is finished – which currently can shield records from being disclosed.
Fullerton city leaders considered a deal with a then-lieutenant to halt an internal affairs investigation if she resigned from the department, in an effort to shield the records from disclosure laws, according to a lawsuit and records published online.
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SB-16 now working its way through the Legislature after passing with strong majorities out of state Senate committees.
Among other things, IA files reveal how a department handles discipline – and whether officers are treated consistently.
Current and former law enforcement officers often describe a culture of double-standards in how discipline is meted out by higher-ups – a view that’s reflected in recent survey results at one of OC’s largest police departments.
IA files are an important window into how police agencies handle discipline, Snyder said.
“Accountability should apply not just to individual officers but to the department as a whole. And the department as a whole needs to be accountable for consistent and well-reasoned application of its rules,” he said.
“It’s hard to hold the department accountable for consistent and well-reasoned application of its disciplinary rules if nobody can see records of how those rules have been applied in the past.”
Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.