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State Attorney General Must Disclose Police Misconduct Files on Local Cops, Appeals Court Rules

Alex Emslie
The ruling stems from a lawsuit filed by KQED and the San Rafael-based First Amendment Coalition aiming to force public access to files on police misconduct and serious use of force.
A state appeals court has ruled that state Attorney General Xavier Becerra must release files about police misconduct and shootings held by the state Department of Justice, including those created by local law enforcement agencies. (Justin Sullivan/Getty Images)

A California appeals court rejected Wednesday the state attorney general's withholding of thousands of records on police misconduct and shootings made public by a landmark transparency law last year.

In a published opinion, a three-judge panel based in San Francisco found that California law "enshrines the value this state has long placed on government transparency and public access to information concerning the conduct of the people's business." The judges ruled that the new transparency law, Senate Bill 1421, acknowledged "the extraordinary authority vested in peace officers and the serious harms occasioned by misuse of that authority."

A representative from the Attorney General's Office wrote in an email that it is reviewing the opinion. Attorney General Xavier Becerra may appeal further, including to the state Supreme Court.

KQED helped form a coalition of 40 California news organizations in late 2018 to obtain and report on previously secret law enforcement records made accessible under SB 1421. The coalition has also fought numerous legal battles to ensure broad public access in what was one of the most secretive states regarding the conduct of police officers.

"This ruling from the appeals court is a victory for truth and transparency — but it is not just that," said Ethan Lindsey, executive editor of News for KQED. "This should be a marker for agencies around the state who continue to withhold public documents. The ruling shows that the public deserves to see these records."

In early 2019, Becerra stalled responses to public records requests seeking information under the new law, arguing that he should wait for further direction from courts throughout California who were fielding challenges to the law filed by law enforcement unions. Those court filings argued that information from cases that occurred before the law took effect should remain secret. Many law enforcement agencies seized on Becerra's position to delay releasing records.

KQED joined the San Rafael-based First Amendment Coalition last March in a lawsuit aiming to force release of records covered by SB 1421, which include sexual assault and dishonesty by peace officers, as well as any use of force resulting in serious injury and any shooting by law enforcement officers.

The attorney general refused to budge, however, until a few weeks later when a coalition of news organizations, including KQED and the Bay Area News Group, won a separate state appeals court ruling that all such records, regardless of when they were created, should be disclosed.

But even then, the state Department of Justice released only a few case files — those pertaining to misconduct by state agents, arguing that it was not required to provide thousands, and maybe more, files regarding investigations into local police officers and sheriff's deputies. Nearly a year later, the courts and public remain unclear on exactly what police misconduct and shooting investigations the state Department of Justice may possess.

"There is no indication what kinds of records, if any, the Department may generate when it conducts an independent investigation of a law enforcement agency or when it reviews an agency's decision not to file charges in connection with an incident," the opinion says.

Judges strongly rejected the attorney general's arguments that SB 1421 should only require release of records related to an agency's own employees. The court found that the Legislature could easily have worded the law that way, and it did not.

"[W]e will not add words it has chosen to omit," the opinion says.

The attorney general has argued that providing the Department of Justice's misconduct files would be a huge burden largely duplicative of what the public can obtain directly from any local law enforcement agency. But the DOJ also conducts its own investigations and creates its own files on those cases.

The state appeals court found that the attorney general may still be able to withhold some files that would be too difficult to release, but it must do so by making a case-by-case argument that the benefit of nondisclosure outweighs the public benefit of release.

"I think the court recognized the importance of SB 1421, the fact that it was a transformative piece of legislation, and when combined with the public records act, it provides a powerful tool for the public to gain access to records of police misconduct and serious use of force," said Glen Smith, the First Amendment Coalition's litigation director.

This story was produced by the California Reporting Project, a coalition of 40 news organizations across the state. The project was formed to request and report on previously secret records of police misconduct and use of force in California.

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