Originally published in California Publisher, Summer 2019
By Jason M. Shepard
Many California law enforcement agencies are dragging their feet in complying with a new state law mandating disclosure of police misconduct records, according to journalists.
The California Reporting Project, an impressive consortium of 33 news organizations is evaluating agency compliance with the new law, known as Senate Bill 1421.
Some agencies complied with information requests. But many agencies haven’t turned over a single record. Others admit to destroying documents. Some agencies are charging journalists thousands of dollars before they begin a document review. Others have gone to court to prevent disclosure.
“We’ve learned quite a bit about police misconduct” since the new law took effect in January, the San Francisco Chronicle wrote in a July editorial. “But the biggest thing we’ve learned is that many police departments believe that compliance with the law is optional.”
Sen. Nancy Skinner, the law’s author in the state Senate, told journalists she will call for oversight hearings to push law enforcement agencies to comply with the law.
For decades, California law allowed government agencies to keep most police records secret. Powerful police unions blocked periodic attempts to improve transparency, arguing that the public records law jeopardizes officers’ privacy and safety.
But last year, partly in response to growing public outcry over police misconduct and the Black Lives Matter movement, the state Legislature amended California’s Public Records Act to require disclosure of records when officers are involved in shootings, use of force, or sexual assault.
“The public has a right to know about all serious police misconduct,” the new law reads. “Concealing crucial public safety matters such as officer violation of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.”
In addition to Senate Bill 1421, the California Legislature also passed another major disclosure law effective in 2019. Assembly Bill 748 requires the release of police body camera footage within 45 days of an incident, unless the release would interfere with an ongoing investigation.
Both laws are powerful statements about the public interests in government transparency, and they reverse a decades-long presumption of secrecy in police records in California.
But the laws are only good if they are enforced, and legislators and the courts need to ensure police agencies comply with them.
Advocates on both sides have filed lawsuits over elements of the new laws.
Police unions have sued in several counties to block release of police misconduct records prior to 2019, arguing the new law only applies to records created after Jan. 1.
In response, the bill’s authors have said their intent was for the law to apply to all records, not just those created after the bill’s passage.
So far, most courts have agreed the law is retroactive, including the First District Court of Appeal in San Francisco, in a decision that experts say is binding in all of the state’s superior courts.
But court conflicts are emerging. In June, a superior court judge in Ventura County ruled the law did not apply to pre-2019 records.
“To call this order an outlier doesn’t begin to describe it,” David Snyder, executive director of the First Amendment Coalition, told KQED. “I don’t know what to call it other than bizarre.”
Several appeals are underway in state courts over other issues. In one case, the state’s attorney general, Xavier Becerra, is appealing a San Francisco superior court ruling instructing the state Department of Justice to turn over records it has about local police cases.
Also, the California Supreme Court this term is hearing an appeal in a case that transparency advocates say would create an “unprecedented fee barrier to public access for most of California’s public records.”
The case, National Lawyers Guild v. City of Hayward, involves a public records request to the city of Hayward for police body camera footage of a protest about police violence. The city charged more than $3,000 in fees associated with staff time to search for, review and redact the footage.
A trial court ruled against the city, but an appellate court disagreed, saying the legislature intended to allow agencies to recover fees for these kinds of requests.
The Public Records Act allows government agencies to charge some fees for duplication costs but generally not for costs associated with searching and reviewing the materials.
For electronic records, the law allows agencies to charge for “the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record.”
The City of Hayward argues the law provides a right to charge fees for compiling raw camera footage into viewable formats for public release.
Local government agencies are urging the California Supreme Court to uphold the appellate ruling, saying that as public records requests increase in volume and complexity, their agencies shouldn’t have to bear the costs of complying.
But journalism organizations say fees could skyrocket if the Supreme Court gives agencies a green light to be expansive in charging for electronic records.
“When journalists and news organizations cannot afford public records, it is the public that is hurt the most,” the Reporters Committee for Freedom of the Press wrote in a friend-of-the-court brief, joined by more than two dozen other news organizations.
“Allowing agencies to create insurmountable fee barriers to public records strips the public of any opportunity to meaningfully participate in a democratic system of government, which the California Constitution and CPRA were designed to protect,” the news organizations argued.
The California Legislature made two big advances in the public’s right to know with passage of Senate Bill 1421 and Assembly Bill 748. Now it’s up to judges to enforce it.
Jason M. Shepard, Ph.D., is chair of the Department of Communications at CSU Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at firstname.lastname@example.org or Twitter at @jasonmshepard.