Free Speech Advocates Blast California A.G. for Refusing to Release Police Misconduct Files

Updated Tuesday, Feb. 5, 1:30 p.m. 

A leading free speech and open government advocacy organization is blasting California Attorney General Xavier Becerra's office for rejecting a request to release misconduct files about law enforcement agents that work for his department.

New state legislation requires agencies that employ sworn officers to publicly release disciplinary records involving sexual assault, dishonesty and serious use of force.

The attorney general's response to a public records request seeking that information references some superior court challenges to the law's application to past records brought by police unions.

"We will not disclose any records that pre-date January 1, 2019 at this time," Mark Beckington, supervising deputy attorney general, said in a response last Friday to a request from freelance reporter Darwin BondGraham.

David Snyder, executive director of the San Rafael-based First Amendment Coalition, called Becerra's decision unfortunate.

"This is the highest law enforcement officer in the state. He has decided not to disclose records that I think the new law makes very clear should be disclosed," Snyder said in an interview Tuesday.

State Sen. Nancy Skinner, D-Berkeley, who authored the new law, Senate Bill 1421, said she was baffled by the state attorney general's rejection of the records request.

"I find the AG's interpretation puzzling considering that we have law enforcement agencies up and down the state, including our California Highway Patrol, releasing records," Skinner said, also an interview.

Skinner said she submitted to Becerra's office a letter she had written for the state Senate recently that clarified the law's intentions. She also asked that his staff review a California Supreme Court decision last month to deny an attempt by a San Bernardino County sheriff's deputies to block access to existing misconduct records.

The attorney general's response came several weeks after BondGraham, formerly of the East Bay Express, put in a public records query for copies of misconduct complaints made against sworn law enforcement members of the California Department of Justice since 2014 and files involving sustained cases of misconduct, among other material.

BondGraham's request is among scores of other queries by news organizations, including KQED, to state and local government agencies since SB 1421 went into effect on Jan. 1.

Lawyers representing police unions have filed superior court challenges to the law in more than half a dozen counties, arguing that it does not apply retroactively before 2019.

"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 wrote.

Beckington noted that in two of those cases, involving unions that represent Richmond and Los Angeles police officers, courts have told law enforcement agencies not to release the records, at least temporarily.

"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 said.

Becerra, who runs the state agency tasked with enforcing California's laws, acknowledged his office's refusal to hand over the documents in an interview Monday.

"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," Becerra said.

"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 said.

Synder says Becerra's decision could have a ripple effect.

"One would hope that they (the attorney general's office) would adhere to the requirements of the law rather than take what I believe is a significant minority position that disclosure's not required," Synder said.

"It sends an unfortunate message to other law enforcement agencies around the state, that they can hide behind a spurious interpretation of the new law," he said.

The First Amendment Coalition has waged legal battles against police unions who've argued against releasing misconduct files.

BondGraham declined to comment.

SB 1421 represents a key change for police in California. For years, law enforcement officers enjoyed some of the most restrictive laws in the nation, making access to information about misconduct and discipline all but impossible.

The legislation has led to disclosures by KQED and the Bay Area News Group about police misconduct at several Bay Are police agencies. That included the firing of two police officers in Rio Vista (Solano County) involving allegations of excessive force and filing false reports.

The two news organizations revealed that a Burlingame police officer was fired after it was found that he offered to help a woman charged with drunk driving if she had sex with him.

The collaboration also obtained records detailing the firing of two police officers in Watsonville (Santa Cruz County) for repeatedly having sex with civilians while on duty.

KQED's Mina Kim and Peter Jon Shuler contributed reporting to this story.