Cities Cite State AG Letter to Stall Release of Police Misconduct Files

California Attorney General Xavier Becerra. (Anne Wernikoff/KQED)

Several local governments in California are using a recent rejection letter from California's top lawyer to bolster their arguments that they should not have to release police misconduct files.

The tactic has intensified a legal battle over a new state law intended to shine light on police discipline and use-of-force information, which has been shielded from public view for decades.

Late last week, California Attorney General Xavier Becerra rejected a public records request from a freelance journalist for misconduct files for law enforcement agents employed by his agency.

Becerra cited two superior court cases in which police unions have challenged the implementation of Senate Bill 1421, which requires agencies that employ sworn officers to publicly release disciplinary records involving sexual assault and dishonesty, as well as records about serious uses of force. KQED is part of a coalition of news organizations intervening in one of those cases, which is scheduled to be heard Friday afternoon in Contra Costa County Superior Court.

"We want to make sure what we do, we do legally so that there are no repercussions if we disclose confidential documents," Becerra told reporters at McClatchy High School in Sacramento Tuesday night after he delivered the Spanish language response to President Trump's State of the Union address.

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"Once you disclose a document that's confidential and private, you can't take it back," Becerra said. "You don't get a second chance to get it right, you got to get it right the first time."

Lawyers for six police unions in Contra Costa County have argued that the law should not be applied retroactively, before Jan. 1, 2019, when the bill went into effect. Several similar cases are ongoing in Southern California counties, including Orange and Los Angeles counties.

Free speech advocates feared Becerra's rejection would cause a ripple effect — that local agencies would use his reasoning to strengthen their own arguments against releasing similar documents.

"They (the attorney general's office) set the tone for law enforcement around the state," said David Snyder, executive director of the San Rafael-based First Amendment Coalition, which has led most of the legal battles arguing for transparency and release of the records.

That fear has come true. Cities and law enforcement agencies in Suisun City (Contra Costa County), Citrus Heights (Sacramento County), Lindsay (Tulare County) and Arvin (Kern County) have cited Becerra's position in correspondence with KQED and the Bay Area News Group in response to pending public records requests seeking law enforcement misconduct files.

The attorney general's office sent a letter to the California Police Chiefs Association recently, articulating the department's position on responding to requests for police personnel documents, according to the association's president, Morgan Hill Police Chief David Swing.

"I think it's an appropriate course of action to wait," Swing said in an interview Thursday. "If there is something being challenged, I think it is in everyone's best interest to respect the process."

The association shared the attorney general's letter with its members, according to a copy of that alert provided by a California police chief.

SB 1421's author, state Sen. Nancy Skinner, has repeatedly emphasized that the new law was meant to be applied retroactively. She said she was puzzled by Becerra's rejection of a public records request by former East Bay Express reporter Darwin BondGraham, who had asked for copies of misconduct complaints against law enforcement members of the California Department of Justice.

Skinner reiterated that on Wednesday in a Tweet involving a dispute over records for Berkeley police officers.

KQED's Katie Orr, Alex Emslie and Sukey Lewis contributed reporting to this story.

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