Appeals Court Rules California Must Release Police Misconduct Records

California Attorney General Xavier Becerra sits for an Oct. 10, 2018, interview with The Associated Press, in Sacramento, Calif. (AP Photo/Rich Pedroncelli)

SAN FRANCISCO (CN) – California’s Department of Justice cannot withhold records related to officer-involved shootings, use of excessive force and other police misconduct, the First District Court of Appeal ruled Wednesday.

The ruling upholds an order by San Francisco Superior Court Judge Richard Ulmer requiring Attorney General Xavier Becerra’s office to comply with a 2019 law compelling state agencies to release misconduct records.

Enacted last year as Senate Bill 1421, the law amends Penal Code Section 832.7 to require the release of public records on police shootings, use of excessive force and confirmed cases of lying and sexual assault by on-duty officers under the California Public Records Act.

“We are gratified that the court upheld this important piece of legislation that increased transparency and accountability for police misconduct, and we call upon the Attorney General now to make these records available and stop obstructing the Legislature’s decision,” said Glen Smith, litigation director for the free-speech group the First Amendment Coalition.

Just days after the law went into effect on Jan. 1, 2019, Smith sent a letter to Becerra’s office on behalf of the coalition requesting disclosure of SB 1421-related records. Public media outlet KQED also made a similar request.

But the Justice Department fought against disclosure, saying compliance would be unduly burdensome.

In appealing Ulmer’s order, Becerra’s attorneys argued that an officer’s employing agency should be responsible for gathering and reviewing the files, not the Department of Justice, which investigates complaints against officers.

The department said it was worried about disclosing sensitive or confidential information that could put officers at risk, and that employing agencies are better suited to making the necessary redactions.

“That may be so, but such a policy argument affords no ground for a judicial interpretation that shields responsive records in the Department’s possession, especially in light of statutory allowances for consultation with other agencies in processing CPRA requests,” Justice Carin Fujisaki wrote for the three-justice panel.

She was joined by Justice Peter Siggins and Justice Ioana Petrou.

Turning to the legislative history of SB 1421, Fujisaki said the record is teeming with evidence that lawmakers intended to encourage transparency regarding office misconduct, “whether such records are maintained by officer employers or by other agencies exercising independent law enforcement oversight responsibilities.”

“Contrary to the Department’s contentions, the legislative history does not even remotely suggest that disclosure obligations should be limited to an officer’s employing agency,” Fujisaki wrote, adding that the court’s interpretation of the statute “harmonizes with the constitutional principle that the people have a right to access information concerning the conduct of the people’s business and that restrictions on this right are narrowly construed.”

To avoid releasing the records, Becerra’s office also invoked Government Code section 6255(a), an exemption to the California Public Records Act that allows agencies to withhold records if the public interest served by keeping them secret outweighs the public’s interest served by their disclosure.

Ulmer had ruled that the exemption was available but that its use was unjustified. The appellate court upheld Ulmer’s ruling on that point, but said nothing would stop the trial court from reconsidering applying the exemption to certain requested records, provided the department can substantiate its claims.

“We do not doubt that public agencies and others may have some generalized knowledge regarding the onerous burdens posed by certain types of CPRA requests,” Fujisaki wrote. “But officer-related records were exempt from disclosure before the passage of SB 1421.

“Consequently, the nature and scope of responsive records in the Department’s possession are relatively unknown to litigants and the courts, and the burden of making such records available for inspection must, at this juncture, be established through expert testimony, or at the very least, with a more thorough showing that substantiates the Department’s burden.”

The Attorney General’s press office said in an email that the Justice Department is reviewing the decision.

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