S.F. Court Rejects State Attorney General's Stalling, Rules for Release of Police Records

A San Francisco Superior Court judge strongly rejected state Attorney General Xavier Becerra's arguments stalling the release of police misconduct and shooting records in a ruling Friday, indicating that the California Department of Justice will be compelled to make public a huge stockpile of that information under a new transparency law.

"The attorney general’s stonewalling now for five months has now been put to a halt," said David Snyder, executive director of the San Rafael-based First Amendment Coalition, which sued Becerra and the Department of Justice in February to force public access to the unsealed police files. "They will have to be producing records."

When that state-level information on police sexual assault, dishonesty and serious use of force will see the light of day, however, has not yet been decided. San Francisco Superior Court Judge Richard Ulmer ordered the First Amendment Coalition and KQED, which joined the lawsuit in March, to negotiate a timeline and other issues with the Attorney General's Office. The parties are scheduled to report back to court on June 21.

In a statement Friday afternoon, Becerra abandoned his previous contradictory position on the new law, Senate Bill 1421. He has argued repeatedly that he agrees it applies to any files in a law enforcement agency's possession, regardless of when they were created.

But in light of police unions throughout the state filing now-defeated court challenges to the law's application to cases before the start of 2019, Becerra had said he needed further direction from judges before making any of the information public.

"With this court’s ruling, my office now has much of the clarity we have sought in our efforts to appropriately follow the letter of the law," Becerra said in a written statement announcing that the state Department of Justice plans to begin releasing misconduct files.

At a hearing Friday morning, Ulmer relied heavily on a March state appeals court ruling that the police unions' arguments are "without merit."

"I’ve got to follow what they say, don’t I?" he asked attorneys representing the state Department of Justice.

Deputy Attorney General Jennifer Rosenberg said that technically, the appeals court ruling was on a request for a stay, and not on the actual question of whether older police misconduct records should be made public.

"Call me a literalist, but I’m just kind of hung up on that you say the court didn’t address the issue on the merits when they say this argument is without merit," Ulmer replied.

In addition to questioning SB 1421's application to older records, the attorney general has argued that he shouldn't have to turn over files about local police and sheriff's departments, but should only be obligated to provide information about state agents.

To support that argument, Senior Assistant Attorney General Michael Newman wrote that an example case from a local law enforcement agency "includes over 109,000 items stored in an electronic database, including text messages, emails, documents, photographs and audio or video files," that would all need to be reviewed and redacted before being made public.

In its written statement Friday afternoon, the Department of Justice maintained that it does not plan to release the files it has from local law enforcement agencies.

Ulmer said that Newman's declaration was "terse and conclusory." He said the new law clearly requires the Department of Justice to turn over any records it maintains, regardless of who created them.

"What this sounds like to me is you don't want to do the work at the Attorney General's Office," Ulmer said, adding that he understands the position "because it's going to be onerous."

But he added that the issue is bigger than First Amendment and news organizations pursuing the records with the help of "high-powered lawyers."

"It's mothers and fathers of people shot by the police," he said, underscoring the public interest in the long-secret information.

Attorney Thomas Burke, who represents KQED in the case, said Becerra's position has led many police departments and sheriffs to withhold their own files. He said that should stop after Friday's ruling.

"This is an important victory for access to police misconduct records because it requires the attorney general to now act," Burke said after the hearing.