State Attorney General Appeals S.F. Ruling That Would Release Police Misconduct Records

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California Attorney General Xavier Becerra's office is arguing in an appeal filed July 1 that the state Department of Justice should not have to provide police misconduct and serious use-of-force records about local police and sheriffs. (Anne Wernikoff/KQED)

California Attorney General Xavier Becerra is arguing in an appeal filed late Monday that the state Department of Justice shouldn't have to release records on local police misconduct and shootings under a landmark transparency measure that took effect this year.

The case began early in the year with complaints filed by the First Amendment Coalition and KQED against the attorney general in San Francisco court, arguing that the office should provide all the responsive files it possesses.

While neither the attorney general's office nor the Department of Justice have described in detail the records at issue, state investigators sometimes review police shooting cases, such as Stephon Clark in Sacramento. Local police and sheriffs are also required to report use-of-force and other information to the state DOJ.

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San Francisco Superior Court Judge Richard Ulmer ruled on May 17 that Senate Bill 1421, which took effect Jan. 1, requires the state DOJ to release all records on officer sexual assault, dishonesty and serious use of force, including files about police and sheriff's deputies that the department possesses.

That previous ruling ended the attorney general's delay in providing any information from cases originating before the beginning of this year, and Becerra's latest filing acknowledges that the law opens public access to records regardless of when they were created.

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"The department does not dispute that conclusion," the appeal says. But, "When viewed in the appropriate statutory context, it is plain that the Legislature intended SB 1421 to reach only records maintained by an officer's employing agency, not records that the agency might have relating to other agencies' employees."

The Department of Justice has released two case files regarding state agents. One case involved a Santa Clara County-based special agent fired in 2015 for stealing mugs from a restaurant and mishandling drug evidence. The other case involved a Southern California senior agent fired in 2010 for dishonesty about an affair with a subordinate and for making racist comments.

The files appear incomplete, however. The First Amendment Coalition and KQED are arguing for more documents, according to recent court filings. They're also pushing for prompt production of an index of files the Department of Justice hasn't yet provided.

"Plaintiffs submitted their records requests six months ago," the organizations' attorneys wrote in a recent status report. "[T]he Court issued its order on the merits nearly one month ago. And the government has yet to explain why creating an index of responsive files — not even of individual records — should take so long."

During arguments in May, Judge Ulmer disagreed with the attorney general's arguments that the law applies only to records on employees of any given agency.


"In plain English it just says 'records maintained by any state or local agency,'" Ulmer said, referring to the text of the new law. "That is precisely what it says."

The attorney general's office had cited just one example of a case involving a local police department that includes 109,000 files to argue that providing that information would be too difficult.

Ulmer called the argument "terse and conclusory."

"What this all sounds like to me is you don't want to do the work at the attorney general's office," the judge said. "And I sort of get that because it's going to be onerous."

Now the attorney general is asking San Francisco-based appellate judges to overturn Ulmer's order.

"The trial court ... misconstrued the scope of the Department's duties by concluding the Department must disclose not only records relating to its own employed officers, but also records regarding officers employed by other agencies," the appeal says, adding that the "onerous burden of reviewing, redacting, and disclosing records regarding other agencies' officers — a burden that the trial court itself acknowledged would be substantial — outweighs the public interest in obtaining those records from the Department of Justice."

It's unclear at this point whether the appeals court will hear the case, which is still being negotiated under Ulmer. The next hearing in the case is scheduled for July 18.

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