Judge Orders Oakland Police to Release Misconduct Records ‘Promptly’

For two years, journalists have waited for the city of Oakland and its police department to make required Public Records Act disclosures of police misconduct files. Alameda County Superior Court Judge Frank Roesch just significantly shortened the waiting period with a ruling that requires a response within six months.

Officers from the Oakland Police Department and Alameda County Sheriff’s Office formed a line to keep protesters away from the city’s police headquarters on June 2, 2020. (Courthouse News photo/Nicholas Iovino)

OAKLAND, Calif. (CN) — A state judge ordered the city of Oakland and its police department Friday to promptly release thousands of documents on police misconduct journalists requested two years ago, after the California Legislature enacted a landmark police transparency law.

“It’s clear the production has not been prompt enough to satisfy the law. Not by a long shot,” Alameda County Superior Court Judge Frank Roesch said.

It’s been seven months since journalists sued the police department to force it to comply with Senate Bill 1421, a bill that requires 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.

Ruling from the bench on Friday, Roesch said he didn’t buy the city’s argument that its police department lacks the resources to comply with the law, one the California Supreme Court also rejected last year.

He said the police department should start releasing responsive documents in “clumps” every two weeks.

“The law doesn’t give you any extra slack on that at all,” he said. “You’ve got a legal obligation. The state Legislature says you must do it, and you must do it. Promptly means promptly. Under the circumstances of more than two years having gone by, clearly ‘promptly’ has passed.”

Senior Deputy City Attorney Erin Bernstein explained the delay to the court at a hearing on the journalists’ petition.

“It was a new law, it required a lot of analysis. There was a pretty sharp learning curve when it came to ramping up on how to review these documents and how to get those scanned and uploaded.” But, she said, “The city is producing apace and it is producing according to its own process. We have lots of people who have made these kinds of comprehensive requests.”

Bernstein added that Oakland documents cases of officer misconduct “much more comprehensively and much more thickly” due to the “Riders” civil rights case, where four officers were accused of kidnapping, beating, robbing and planting evidence on residents in West Oakland. That case resulted in a $10.9 million settlement and continued oversight of the department by a court-appointed monitor.

“We have two, and now three, separate review processes and each of these generates its own paperwork. So we believe that Oakland has a lot more requests coming to it, but also the volume of documents per request is a lot higher,” she said. “This is not to say we can’t do better, we are getting more resources to bear on this problem, but we do want to get it right. We take the public interest seriously but we also take individual privacy seriously, which means getting these redactions right the first time because these are people’s lives that we are putting out there in the public sphere.”

Nonetheless, Bernstein said she agreed with document production at two-week intervals. “The elephant in the room is how many documents need to be produced every two weeks and what our end point is…”

“Six months,” Roesch interjected.

“We don’t believe it would be possible to produce every single page and every video and audio responsive to every single request within six months,” Bernstein said, prompting an incredulous response from Roesch.

“You’ve had two years. How can you say you can’t do it in six months?” he asked.

“We’ve been throwing everything we can at it,” Bernstein said. “We’ve spent nearly half a million dollars just on throwing attorney time resources at this issue.”

She said nine months to a year would be a more realistic timeline.

“Courts can’t order entities to do the impossible,” she added.

Roesch declined to adopt this alternative proposal.

“After two years one would think an additional six months would be a sufficient amount,” he said. “Ultimately that’s what I’m going to ask you to do. If you need to get more resources, that’s a burden the state Legislature put on you and you’ll have to do that.”

Roesch also said he would order a system for handling redactions under which the department would have to produce a privilege log of redactions along with the documents, or “just a little sticker on each redacted box” explaining the basis for the redaction under the penal code.

The petitioners will have 30 days to challenge the redaction, which must be disclosed or justified by the department within two weeks. If still unresolved, the material could ultimately end up being evaluated by the petitioner’s counsel and then privately by the judge.

Attorney Sam Ferguson who represents journalists Darwin BondGraham and Ali Winston in the case, said the department had produced just a fraction of the documents his clients requested in the span of two years.

“We appreciate that the judge reads the Public Records Act for what it is. Agencies have an obligation to disclose records promptly and the city of Oakland has fallen woefully short of that.” he said in a phone interview following the hearing.

He added, “Whether you’re on the defund the police side or think it needs more resources, the Public Records Act is supposed to ensure that citizens have the information to have a meaningful debate. These records are at the core of what the Public Records Act is about, and this is a meaningful contribution to transparency in Oakland.”

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