California AG Faces Tough Slog in Bid to Dodge Police Transparency Law

SAN FRANCISCO (CN) – The California Department of Justice defended its withholding of police misconduct files before a panel of three state appellate justices Thursday, insisting that compliance with a landmark transparency law would place undue strain on agency resources.

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

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.

“Yes, there will be a burden on the Department of Justice to disclose these records. SB 1421 was a watershed law and it’s going to be a burden on a lot of police agencies. SB 1421 is not some minor tweak of public records law. It is designed by the Legislature to let the public know everything about these records,” said attorney Michael Risher, who argued on behalf of the nonprofit First Amendment Coalition.

The group has been fighting alongside public media outlet KQED since shortly after the law went into effect on Jan. 1 to force state Attorney General Xavier Becerra to identify and release any police misconduct records it has on officer sexual assaults, dishonesty and use of force.

This past May, San Francisco Superior Court Judge Richard Ulmer ordered the Department of Justice to release SB 1421-related records, a ruling Becerra appealed in July after only disclosing files on two DOJ agents fired for theft and dishonesty.

Becerra argued the law only applies to records on officers employed by any given agency, not to investigating agencies like the Department of Justice.

Ulmer previously rejected this argument, and the appellate panel also seemed unconvinced.

“Agencies can get complaints for officers not in their employ. That’s the whole point,” said Presiding Justice Peter Siggins. “It seems that the Legislature recognizes both the employing and investigating agency may have these records and have an obligation under the statute.”

After making little headway with the panel on this route, Deputy Attorney General Jennifer Rosenberg shifted arguments, saying a catch-all exemption to the Public Records Act embodied in Government Code section 6255(a) excuses Becerra’s office from complying with public records requests that are unduly burdensome.

Section 6255(a) allows agencies to withhold records if the public interest served by keeping them secret outweighs the public’s interest served by their disclosure.

Rosenberg said SB 1421 would require the Department of Justice to conduct multiple meetings with each local law enforcement agency and make tough judgment calls about officer privacy and safety. “The employing agency is closest to these records. In terms of cost and pure speed they’ll be able to define more efficiently and more carefully what to disclose,” Rosenberg said.

She said the Legislature never contemplated the fiscal impact of SB 1421 on the Department of Justice, so must have intended the law to primarily apply to employing state agencies.

Risher said the law may be burdensome, but contains provisions allowing agencies to delay releasing records related to active investigations for up to 18 months.

Speaking to reporters after Thursday’s arguments, Risher said the 6255 exemption can be interpreted broadly by courts and is often used by government agencies as a pretext to conceal records. “It’s a huge barrier to public access,” he said.

Risher said local police departments started destroying documents “going back 20-30 years” after SB 1421 passed. Reports by the Los Angeles Times and KQED confirm that cities like Fremont, Bakersfield and Downey purged files or imposed high fees for records this year.

Because state laws on records retention allow local agencies to destroy files at a faster rate, the public’s only hope of seeing those files may rest with the Department of Justice. While Risher said the FAC has no idea what records the department currently has, he expects it has records related to officer-involved shootings up and down the state.

“We hope the attorney general won’t delay the records release any more,” Risher said. “In a state like California whose constitution guarantees the public’s right to know what’s going on, for the state’s chief law enforcement agency to keep stonewalling is frustrating.”

A ruling is expected from the panel within 90 days.

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