The legal fights over a new California law related to the release of police disciplinary records continues, and this time the state’s own attorney general is a target.
The First Amendment Coalition—a nonprofit public interest organization dedicated to advancing free speech and a more open and accountable government—filed a lawsuit against California Attorney General Xavier on Thursday, accusing him of failing to comply with the state’s new police transparency law.
FAC said in a news release that the lawsuit, which was filed in San Francisco Superior Court, seeks the release of records pertaining to serious police misconduct. Senate Bill 1421, which went into effect on Jan. 1, was enacted to create more police transparency and accountability, and requires law enforcement agencies to release records related to internal investigations of officer-involved shootings, professional dishonesty and sexual misconduct on the part of law enforcement officers.
Prior to the passing of SB 1421, those records were kept confidential.
According to FAC, the California Department of Justice—which is under the authority of Becerra—is “one of a relatively small number of agencies that has refused to comply with the law.”
The fight stems from a debate over whether the law applies to records prior to Jan. 1, 2019, when the law went into effect.
Darwin BondGraham, a freelance journalist in California’s Bay Area, submitted a request in January for records of misconduct complaints made against sworn law enforcement members of the California DOJ since 2014, as well as files involving sustained misconduct, according to KQED.
On Feb. 1, Supervising Deputy Attorney General Mark Beckington responded and denied the request and said “Several cases currently pending in the California superior courts raise the issue whether SB 1421 requires the disclosure of records relating to conduct occurring before January 1, 2019.”
Beckington said that in two of those case involving unions representing law enforcement officers in both Richmond and Los Angeles, courts had advised the agencies not to release the records for now.
“Therefore, until the legal question of retroactive application of the statute is resolved by the courts, the public interest in accessing these records is clearly outweighed by the public’s interest in protecting privacy rights,” Beckington wrote.
Becerra backed Beckington’s decision and told KQED “We have a couple of cases where courts are about to weigh in on how to interpret that state law, and we want to make sure that we remain consistent.”
“We are trying to enforce state law, and we want to make sure we are protecting rights that may be implicated by this new state law as well,” he added.
FAC also requested records from the state DOJ on Jan. 4, and the request was denied on Jan. 28 for the same reason. FAC subsequently decided to file the lawsuit.
“As the highest law enforcement officer in the state, the Attorney General has an obligation to not only comply with the California Public Records Act, but to send the right message about transparency to police departments across the state,” FAC Executive Director David Snyder said in the release. “Unfortunately, the Attorney General has done neither. By denying public access to these crucial files, he has given a green light to other departments to disregard the new law.”
“Police unions across California have been working to undermine the law by arguing it doesn’t apply to records prior to Jan. 1 of this year. FAC has led media coalitions to work to defeat these efforts in various counties, including successfully opposing an attempt by a police union in San Bernardino County—the California Supreme Court denied the union’s request to make the law apply only after Jan. 1 after FAC filed a briefing to block the last-ditch effort,” the release said.
The Sacramento Bee and the Los Angeles Times jointly sued the Sacramento Sheriff’s Department in January when it also refused to release records for the same reason.
According to the Bee, Becerra sent a bulletin to all California law enforcement agencies on Jan. 3, advising them to “preserve all records that may be subject to disclosure” under the law.
In a statement emailed to the Bee, Becerra’s office said “Historically, under state statute, peace officers have had a significant privacy right in their personnel records. Several cases have recently raised the issue whether SB 1421 ... requires the disclosure of records relating to conduct that occurred before January 1, 2019, which is SB 1421’s effective date. Given the ongoing proceedings, at this time, we are prepared to disclose only records beginning January 1, 2019. When it comes to disclosing a person’s private information, you don’t get a second chance to get it right.”