Agencies drag feet on records requests
Experts: Legal challenges, purges, refusals subvert law
Sex, lies and faces smashed into walls. Throw in stolen drugs and bullets by the tens of thousands, plus illegal chokeholds, planted evidence, falsified reports, and a state law enforcement agent fired for pilfering cocktail goblets from her favorite bar.
It’s been quite a first six months of disclosure under California’s new police transparency law, Senate Bill 1421, which took effect Jan. 1.
The law requires police to release long-secret records about officer shootings, use of force, sexual misconduct and dishonesty.
But the eye-opening revelations about police misconduct come from only a fraction of the law enforcement agencies around the state, many of them small.
Some large agencies, such as the San Jose Police Department, Solano and Monterey counties and the California Highway Patrol and Department
of Corrections have yet to turn over a single document to requesting media organizations including this one. Still others, such as Oakland and San Francisco police and many county sheriffs, have released only paltry records.
The CHP’S latest estimate for releasing records is August. As of late last week, the Department of Corrections has yet to provide even a list of records responsive to the law, although a spokesperson promised a “comprehensive status update” soon.
The resistance has sparked criticism that police are still in denial about the requirements of a law their unions fought but failed to block.
“They’re trying to thwart the law,” said state Sen. Nancy Skinner, D-berkeley, the author of SB 1421. She said she’s open to amending the bill to require quicker release of records. It’s “absolutely the … wrong example to set for the rest of the local government agencies.”
A lawyer instrumental in getting the law passed said he is “not aware of any requester who has gotten everything they have asked for.”
“The Legislature has spoken,” said Jim Ewert, general counsel of the California News Publishers’ Association. Skinner’s bill opened up only a narrow set of police misconduct and use-offorce records, but “agencies are acting as if we’re going after their first-born child,” Ewert said.
Ewert said he is particularly shocked that San Jose, the state’s third-largest city, hasn’t released any documents requested under the new law. San Jose police were involved in 33 shootings from 2014 to 2018, 15 of them fatal.
“It is disappointing that many of the Bay Area’s largest and most sophisticated law enforcement agencies are the very ones dragging their feet in producing these records,” said Bert Robinson, senior editor for the Bay Area News Group.
“They know the law, and they know they have information of critical importance to their citizens that is public under the law,” Robinson said, “yet they keep responding with the same tired excuses — saying they don’t know what we want when they do, saying they have too many records to review when they’ve had months to review them, and claiming they have nothing to release when they have file folders full of relevant cases.”
San Jose police have a “vast” amount of records the new law makes public, Capt. Paul Cook wrote in a May 2 email to this news organization, adding he expected to release some records later that month. But on June 22, a police clerk wrote that the department was still identifying the records and promised another update in late July.
Like many other agencies, San Jose had at first sought refuge in a position that state Attorney General Xavier Becerra offered shortly after the law took effect — that its language didn’t make clear whether it applied to records created before Jan. 1, and that no records should be released until the courts decided that issue. Police unions insisted in a series of lawsuits that only records of incidents occurring after the law took effect should be public.
But starting with a case in Contra Costa County in February, judges across the state ruled that the law does, in fact, apply to older cases. The 1st District Court of Appeal upheld the Contra Costa decision, and that case is now the law of the state.
Becerra eventually gave up and released a few disciplinary records involving Department of Justice officers.
The legal consensus that the law covers old records was shaken slightly this month when a judge in Ventura County issued a surprise ruling saying the law applies only to newly created records, the only jurist in the state to take that position. The ruling affects only that county. It is unclear if it will have a broader impact.
“I mean the cat’s out of the bag,” said Michael Rains, one of the state’s top police-union lawyers, referring to the documents agencies have already released.
And the dire predictions about officers’ privacy being violated and careers damaged haven’t proved true with the records that have been released so far, Rains admitted.
“I don’t think the sky is falling,” he said Wednesday.
The things the records reveal range from the tragic, such as sexual assault in jails and domestic violence, to the bizarre, like a state agent and part-time deputy sheriff who stole tens of thousands of bullets from two agencies. He was caught but never criminally charged.
But the majority of records this news organization and its partners, KQED News and the Investigative Reporting Program at UC Berkeley, requested from hundreds of agencies on Jan. 1 remain secret. Some departments purged records before and even after the law took effect.
On Jan. 16, two weeks after SB 1421 became effective, the Yuba County Sheriff’s Department destroyed years of records, despite receiving multiple records requests. County Counsel Andrew Naylor said this was a routine purge unrelated to SB 1421.
Media representatives aren’t buying it.
“That’s highly, highly suspicious,” said attorney David Snyder, director of the First Amendment Coalition. He said once the county understood that the public was seeking these records, it had a duty to preserve them.
The cities of Downey and Inglewood purged years of records in December, before the law took effect. Morgan Hill purged records its attorney said were not disclosable under the law; Fremont made similar claims about records it shredded.
Other agencies are simply stalling. Police in Concord, Oakland, Richmond, Vallejo and Hayward, and the Alameda County and Santa Clara County sheriff’s departments, have rolled out records infrequently.
To Ewert, agencies are “wasting taxpayer funds” and resources by engaging in protracted arguments.
“They’re just delaying the inevitable,” Ewert said.
This story was produced as part of the California Reporting Project, a collaboration of more than 40 newsrooms across the state to obtain and report on police misconduct and useof-force records unsealed in 2019. Lewis and Emslie work for KQED News.