Free-speech group sues California AG Xavier Becerra over new police records law

California Attorney General Xavier Becerra announces lawsuit against Trump Administration over fracking regulations on Tuesday, January 23, 2018 at the Attorney General’s office in Sacramento, Calif.
California Attorney General Xavier Becerra announces lawsuit against Trump Administration over fracking regulations on Tuesday, January 23, 2018 at the Attorney General’s office in Sacramento, Calif.

A free-speech group sued California Attorney General Xavier Becerra on Thursday over his refusal to release police misconduct records under a new state law.

The First Amendment Coalition, an organization that promotes open government and First Amendment rights, filed a lawsuit against Becerra alleging the California Department of Justice rejected a Jan. 4 records request under the transparency law, according to an FAC news release.

“As the highest law enforcement officer in the state, the Attorney General has an obligation to not only comply with the California Public Records Act, but to send the right message about transparency to police departments across the state,” FAC Executive Director David Snyder said in the release. “Unfortunately, the Attorney General has done neither. By denying public access to these crucial files, he has given a green light to other departments to disregard the new law.”

KQED reported earlier this month that the attorney general’s office rejected a freelance reporter’s records request, saying that the law did not apply to records dating before Jan. 1, when SB 1421 took effect. Becerra’s office said last week it would not issue records about law enforcement officers it employs until the matter is decided by the courts.

“Historically, under state statute, peace officers have had a significant privacy right in their personnel records. Several cases have recently raised the issue whether SB 1421 ... requires the disclosure of records relating to conduct that occurred before January 1, 2019, which is SB 1421’s effective date. Given the ongoing proceedings, at this time, we are prepared to disclose only records beginning January 1, 2019,” Becerra’s office said in a statement emailed to The Bee. “When it comes to disclosing a person’s private information, you don’t get a second chance to get it right.”

Becerra sent out a bulletin to all California law enforcement agencies Jan. 3 ordering them to “preserve all records that may be subject to disclosure” under the law.

On Feb. 8, a Contra Costa County judge ruled the law is retroactive and applies to records dating back years, according to the Associated Press.

Republican Assemblyman Jordan Cunningham, who represents the 35th District in San Luis Obispo and was a supporter of SB 1421, implored Becerra in a prepared statement to follow the law.

“As a strong supporter of the First Amendment, and supporter of SB 1421, I think the Attorney General of California should follow the law. One court already has ruled that the law applies retroactively,” Cunningham said in his statement. “The AG is the top law enforcement officer in the state and he has a constitutional duty to follow California law. He shouldn’t shirk his duty. SB 1421 was narrowly tailored, and where it applies, the public has a right to the information.”

The Sacramento Bee and the Los Angeles Times jointly sued the Sacramento County Sheriff’s Department on Jan. 25 in a legal test of SB 1421, which requires the disclosure of internal investigations regarding police shootings, sexual misconduct and professional dishonesty.

The sheriff’s department has argued that personnel records are protected and the law did not apply retroactively, according to previous reporting by The Bee.

Officials at several public agencies, including Placer County officials, have told The Bee they are following the Justice Department’s position.

Democratic Senator Nancy Skinner, who authored SB 1421 and represents the 9th District in Berkeley, said in a prepared statement that the law does apply retroactively.

“Some agencies seem to feel that since releasing a record is an irreversible decision, they shouldn’t have to do so until all court actions on SB 1421 are resolved. However, California law doesn’t work that way,” Skinner said in her statement. “Unless the state Supreme Court issues an injunction, which it has chosen not to do, SB 1421 is the law and covers pre-2019 records as the Legislature intended. The only agencies that can legitimately hold records are those agencies in the few counties where lower courts have issued a stay.”

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Vincent Moleski covers business and breaking news for The Bee and is a graduate student in literature at Sacramento State. He was born and raised in Sacramento and previously wrote for the university’s student newspaper, the State Hornet.