Destruction of Internal Affairs Files

ATTORNEY GENERAL OPINION: 99-1111

A California law enforcement agency may destroy peace officer internal investigation files after a five-year retention period, and peace officer personnel records five years after the officer has terminated employment, when the destruction is solely a matter of administrative routine and no other factors are present that would establish "bad faith."

The Attorney General points out that the law allows for a longer retention period than five years and then comments on the need of law enforcement to establish trust with the public. The implication is that it may be appropriate, in order to accomplish that task, for an agency, if it intends to routinely purge files, to do so after a period greater than the five year required minimum. As we have pointed out in the past, there are certain management perspectives which should also be considered in making this decision. Retaining complaints which have been sustained and resulted in discipline may become significant in the future if there is further misconduct by that particular employee and the Department needs to show a history or pattern of behavior. Additionally, in order to justify increasing discipline, it is necessary to show in certain circumstances that progressive discipline is being applied. Absent the ability to refer to prior disciplinary actions, management would be hard pressed to meet this burden.

*********

As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel or your police legal advisor. If you have any questions regarding any of the above please do not hesitate to call Mayer & Coble at (562) 590-8280.