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News Organization Joins Lawsuit Against AG Becerra Over Police Transparency Records

Amended lawsuit is seeking to compel Becerra’s office to comply with new law

By Matthew Keys, March 6, 2019 1:30 am

A San Francisco news organization has joined a lawsuit against California Attorney General Xavier Becerra in an attempt to compel his agency and others to release records related to police misconduct.

On Tuesday, San Francisco public broadcaster KQED News said it had joined an amended lawsuit filed by the San Francisco-based First Amendment Coalition that is attempting to force law enforcement agencies, including one connected to the attorney general’s office, to release records under a new law.

That law, Senate Bill 1421, removed an exemption from California’s public records law that previously shielded certain police-related records from disclosure. Under the new state law, records related to officer-involved shootings, police misconduct and some other issues must be disclosed by an agency when an individual or organization requests them.

After the law took effect at the beginning of the new year, numerous news outlets filed requests with local, county and state law enforcement agencies seeking misconduct records. Those records have laid the foundation for several stories that shed light on police misconduct in numerous cities — including Fairfield, Rio Vista and other communities — in which officers were disciplined for sexual advances, lying in police reports and other acts of malfeasance.

But some agencies have resisted demands for disclosure, saying records requests seeking documents before the start of the new year can still be shielded from public view because Senate Bill 1421 did not make disclosure of documents retroactive. Other agencies destroyed police files before the new law took place, making disclosure of those records extremely difficult.

In regions where police have worked hard to protect old records from seeing the light, lawsuits have been filed by news organizations seeking courts to force law enforcement agencies into compliance. The outcome of those cases has so far resulted in a split among courts throughout California, with some judges siding in favor of news outlets and others siding with police.

Becerra’s office used that split as an advantage when it denied an Oakland reporter‘s request for records related to officers who work within state law enforcement agencies connected to the attorney general’s office. That triggered a lawsuit from the First Amendment Coalition, a San Rafael-based civil rights advocacy group, on Valentine’s Day.

KQED News joined the First Amendment Coalition’s lawsuit one week after it co-published a report with the Bay Area News Group based on thousands of documents released to journalists at the U.C. Berkeley Investigative Reporting Program. The journalists received documents that contained the names of 12,000 past, current and prospective police officers who had criminal convictions. The records were obtained through a records request filed with the California Commission on Peace Officer Standards and Training (POST), an agency that collects those records as part of a system that, among other things, allows law enforcement agencies to conduct background screening on police candidates.

Shortly after the records were released, Becerra’s office contacted the reporters at UC Berkeley saying the records were erroneously disclosed to them and asking the journalists to destroy them. If they did not, Becerra’s office warned the journalists could face criminal liability.

The journalists refused, instead choosing to publish one report through KQED and the Bay Area News Group that both illustrated what was contained in the documents and exposed Becerra’s threat. Neither news organization posted copies of the documents, and it was not clear if editors at KQED or the Bay Area News Group had reviewed the source material before the story was published.

An attorney representing the UC Berkeley journalists said it was hard to believe the records were disclosed “inadvertently” because the agency that released them had spent several weeks deliberating over the request from those journalists, KQED News reported.

The amended lawsuit filed in state court on Tuesday is seeking to compel Becerra’s office “to promptly comply with newly-enacted Senate Bill 1421, which requires state and local agencies to disclose new categories of records related to peace-officer conduct under the California Public Records Act.” The First Amendment Coalition and KQED said the law “make[s] it clear that these new provisions apply to all existing records regardless of when the records were created.”

The news organizations may have a powerful ally in Senate Bill 1421’s author, State Sen. Nancy Skinner (D-Berkeley), who said in January the law was intended to apply retroactively.

“The plain language of SB 1421…makes clear that any and all records that fit within the categories defined that are in the possession of the agency are subject to disclosure when an applicable request for a public records is received, regardless of when those documents were created or when the underlying conduct occurred,” Skinner wrote in a letter to the Senate Secretary Erika Contreras, a copy of which was obtained by the California Globe as published in the Senate Journal.

Skinner wrote that a retroactive application of the disclosure law “is the standard practice for public records legislation in California.”

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