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
    That One Guy (profile), 9 Feb 2019 @ 4:44am

    Back to the legislation session boys and girls

    Sounds like they need to add an amendment/addition to the new law making it even more crystal clear that it does indeed apply to older records too.

    Might I suggest they call it the 'Clarification for the thick-headed' clause?


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