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First Amendment Group Sues State AG Over Withholding Police Records

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California Attorney General Xavier Becerra speaks to reporters March 27, 2018, about the investigation of the shooting death of Stephon Clark in Sacramento. (Josh Edelson/AFP/Getty Images)

Updated Thursday, 3 p.m.

A Bay Area-based First Amendment group is suing the California attorney general and Department of Justice, looking to force the release of law enforcement misconduct and shooting information unsealed by a new state law.

Attorney General Xavier Becerra declined to provide any misconduct or use-of-force records about DOJ employees on Feb. 2 in response to freelance reporter Darwin BondGraham's request.

The San Rafael-based First Amendment Coalition, which filed the lawsuit Thursday in San Francisco Superior Court, received a similar rejection from the  California Attorney General's Office. The letter points to ongoing cases in county courts brought by police unions throughout the state.

Those court challenges aim to block the release of records created before Jan. 1, 2019, the date the law took effect.

Citing a "significant privacy right" enjoyed by California law enforcement for decades, Becerra's rejection lent credibility to the police union arguments that the landmark law — Senate Bill 1421 — should apply only to future cases.

The "nonretroactive" interpretation has been repeatedly rejected by state Sen. Nancy Skinner (D-Berkeley), the law's author, and more recently, a Contra Costa County judge.

"[U]ntil 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," the attorney general's rejection letter says.

The First Amendment Coalition's lawsuit points out that the DOJ isn't directly arguing that past records should be kept secret.

"[I]nstead, it argues that because a handful of police unions have sued to prevent the release of records under the new law ... it can refuse to release records," the petition says. It's asking a San Francisco court to order the attorney general to provide those documents.

The Department of Justice has yet to hand over its records on police misconduct and serious use of force, and it has not yet responded to a public records request from KQED and the Bay Area News Group.

Citing police privacy laws that the new law rescinded, Becerra stood by his position on waiting for direction from the courts.

"When it comes to disclosing a person’s private information, you don’t get a second chance to get it right," Becerra said.

In the days following the attorney general's rejection, a growing number of local and county law enforcement agencies began citing Becerra's position directly or making a similar argument to withhold pre-2019 records.

"This is the highest law enforcement officer in the state, and (he's) taking a position that unfortunately is now being adopted by other agencies that might have otherwise disclosed these records," said David Snyder, executive director of the First Amendment Coalition. "It's disturbing and it's directly counter to what the clear purpose of this law was, and that is to disclose all records regardless of when they were created that relate to the most serious forms of police misconduct."

In contrast, the vast majority of law enforcement agencies throughout the state have either provided those records or say they plan to do so. In response to KQED and BANG's requests to more than 350 agencies, 65 had provided at least a synopsis of the files they have. Some have released detailed case files.

The first records released under the law exposed sexual misconduct and potential exploitation by former cops in Watsonville and Burlingame, prompting the San Mateo County district attorney to reopen a criminal inquiry in the latter case.

Detailed internal investigations released by Rio Vista showed findings of excessive force and dishonesty by the former president of the police officers' association, who was fired and now works as an investigator for Uber. A Rio Vista officer is facing firing in a separate case in which a woman was mauled by a police dog during an illegitimate arrest.

And despite the attorney general's position, the state Department of Consumer Affairs provided KQED and BANG with an internal investigation Monday, showing that a veteran San Bernardino County sheriff's deputy and state investigator had stolen thousands of bullets over his 30-year career, trading the ammunition for weapons at a friend's gun shop. Despite the former investigator's confession and loads of physical evidence recovered, he was never charged with theft.

"The Public Records Act makes very clear that quick disclosure of records is essential," Snyder said, adding that otherwise there's no real way to hold public officials and agencies accountable.

"The public has to know as quickly as possible about what's going on in their government so that they can take action as quickly as possible," he said.

Sukey Lewis of KQED News and Thomas Peele of the Bay Area News Group contributed to this report.

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