California AG Steps Up To Help Cops Pretend New Public Records Law Doesn't Apply To Past Misconduct Docs

from the bros-before-accountability,-as-they-say dept

The bullshit debate over California police misconduct records continues. A new law granting the public access to police misconduct records for the first time in decades has resulted in a slew of public records requests. It's also resulted in a slew of refusals and legal challenges.

Some law enforcement agencies (and their unions) have chosen to believe the law erases their past misdeeds. Although the law says nothing limiting access to records created prior to January 1, 2019, some agencies have decided the lack of specific language allows them to draw this inference from the missing words. Multiple lawsuits have hit the California court system, which may soon force the state's Supreme Court to deal with this miss, even if it took a hard pass on one law enforcement union's attempt to get a preemptive declaration that past misconduct records are off-limits.

If these law enforcement agencies were truly seeking clarity, they were given a crystal clear explanation of the legislative intent from none other than the law's author, Senator Nancy Skinner.

[I]t is my understanding in enacting SB 1421 that the change in the law applies to all disclosable records whether or not they existed prior to the date the statute went into effect…

This isn't the answer cops wanted. They wanted someone to tell them they could whitewash the past and stonewall the future. Instead, the law's author told them the law applies retroactively. If they missed their opportunity to destroy these records prior to the law's enactment, that's on them.

But they're getting a little help from the state's top cop. State attorney general Xavier Becerra has decided retroactivity is still an open question, despite Sen. Skinner's statement on the issue.

The attorney general's response to a public records request seeking that information references some superior court challenges to the law's application to past records brought by police unions.

"We will not disclose any records that pre-date January 1, 2019 at this time," Mark Beckington, supervising deputy attorney general, said in a response last Friday to a request from freelance reporter Darwin BondGraham.

This sentence follows a very dubious assumption by the attorney general's office.

[U]ntil the legal question of retroactive application of the statute is resolved by the courts, the public interest in accessing these records is clearly outweighed by the public's interest in protecting privacy rights.

Oh, really? But whose privacy rights? The public may want to protect their own privacy rights, but I doubt they're more concerned about protecting the "privacy" of public servants who committed misconduct on the public's dime.

AG Becerra is deliberately confused by the retroactivity non-question. Sen. Skinner, the law's author, is honestly confused.

"I find the AG's interpretation puzzling considering that we have law enforcement agencies up and down the state, including our California Highway Patrol, releasing records..."

Also confusing: the AG was sent a copy of the same letter Skinner sent to the Senate Rules Committee clarifying the law's retroactive powers.

Cops have a friend in high places. With this action, he's the best friend a bad cop could have. But he's only delaying the inevitable. These records will be in the public's hands. If the courts somehow find in favor of law enforcement agencies, this only keeps the past a secret. Unless police misconduct is somehow also only a thing of the past, California cop shops will still be generating a whole lot of publicly-accessible documents.

Filed Under: california, foia, nancy skinner, police, police discipline, retroactive, transparency, xavier becerra

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  1. icon
    cattress (profile), 10 Feb 2019 @ 11:36pm

    Re: Back to the legislation session boys and girls

    Yup, time to go back and write legislation that makes all records ever produced past present and future public, to be made available on a free to access database, record keeping of all incidents legally required, illegal to destroy or tamper with records. Most private citizen information would be redacted, accessible for attorneys for legitimate things like civil suits. Legislators should pass some crystal clear laws that say public employees are accountable to the public and they are not entitled to the same constitutional protections, let alone more than private citizens. These laws should cover all government employees, from cops and teachers (and if you think public school teachers should be exempt, there's a nasty story about a teacher bringing in a third party to whip a little boy in the bathroom in Chicago and the district has no idea how many teachers have hurt children and ultimately been disciplined, or if any teachers have a pattern of accusations) prison guards, prosecuting attorneys, judges, magistrates, sherriffs, principals, everyone. I can see a fair exemption of medical records, including incidents relating to a mental health condition so long as direct supervisors are accountable for continued employment. . And while I'd bet the unions would drop their opposition to the current laws if full transparency gained steam, legislators should push on and air all the whiney grievances against accountability. It's utterly ridiculous that government employees get special privileges and immunities and yet constantly whine and cry how they are under attack, and how they selflessly devote themselves to thankless public service. (And I hold teachers in high regard, but they aren't as poorly paid as they claim because no one considers the mega health insurance they have to contribute almost nothing to both now and after retirement along with the salary they collect in the form of a pension. They also continue to support the unions that are responsible for the working conditions good and bad).

    Yeah, back to the drawing board and do it right this time.

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