State attorney general says police records ruling doesn’t apply to him

Attorney General Xavier Becerra continued his pushback on SB 1421, the state's peace officer transparency law, arguing this week the law only applies to an officer's overseeing agency.

Challenging a May ruling by San Francisco County Superior Court Judge Richard B. Ulmer Jr. that would require Becerra's office to turn over records of police misconduct, Becerra said the Legislature didn't intend the law to cover his office.

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," Becerra said in a court filing Monday. Becerra v. Superior Court for the City and County of San Francisco, A157642 (Cal. App. 1st Dist., filed July 1, 2019).

Becerra's initial reaction to Ulmer's order was to acquiesce. Immediately following Ulmer's tentative, Becerra released a statement saying he would begin enforcing the retroactive application of the law, which his office resisted when the law went into effect Jan. 1. At the time, he stated, "Transparency and accountability in policing are fundamental components to building safe and secure communities for all Californians. 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."

First Amendment Coalition Executive Director David Snyder, whose organization filed the original suit when Becerra declined to release the records, said the attorney general's latest interpretation shows nothing much has changed.

"It's just unfortunate even after they lost the argument about retroactivty they continue to obstruct," Snyder said. "It's clear, from the AG on down, that law enforcement has not accepted the fact that SB 1421 is the law of the land."

As police departments resist the state's new transparency law regarding officer misconduct records -- either by destroying records or by stalling the process in court -- reporters and criminal justice nonprofits have attempted to obtain information about officers by applying the law to prosecution files. The results have been mixed with some prosecutors deferring responsibility and others unsealing what information they do have in the form of prosecutorial records.

In March, Contra Costa County District Attorney Diana Becton released a report of sexual misconduct concerning employees of her office although it was heavily redacted. In April, Alameda County District Attorney Nancy E. O'Malley answered a request from the California Reporting Project by releasing details of police and sheriff's officers who had been charged with sexual assault and dishonesty.

When the Daily Journal sent a similar request to Los Angeles County District Attorney Jackie Lacey, the records department denied having the kind of information covered under the new law and said the police department was the more appropriate agency to field such requests.

Meanwhile, police departments have been purging old records although law enforcement attorneys maintain this is a routine practice that has only come under scrutiny in the wake of SB 1421's rocky rollout.

Police unions have lost all but one case pertaining to the ways SB 1421 could be applied, and the state Supreme Court has denied to review, at least, the retroactivity question. But Snyder fears the state's top attorney's actions could bolster a resistance that has been brewing in spite of these rulings.

"The bigger message he has sent to law enforcement around the state is that the DOJ is going to keep fighting as hard as they can not to release these kinds of records," Snyder said. "That gives the green light to other agencies to continue to concoct devious arguments as to why the law doesn't apply to them."

"They're burning up a lot of taxpayer dollars and court time to debate a topic that I don't think is still debatable at this point," he continued. "Ultimately these records will come out."

Becerra has released two case files regarding state agents: the first involving a Santa Clara County-based agent fired in 2015 for mishandling drug evidence and the second involving a Southern California agent fired in 2010 for lying about an affair and for making racist comments. But the First Amendment Coalition and KQED TV station have argued the records are incomplete. Additionally, the organizations are seeking records pertaining to justice department investigations into the sexual misconduct of county and city peace officers as well as use of force cases.