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California AG Xavier Becerra and the Thick Blue Wall of Police Secrecy

By David Snyder

California Attorney General Xavier Becerra appears to believe there are two sets of rules about government transparency—one for his office, and another for everyone else.  

Back in 2017, when the Environmental Protection Agency (EPA) refused to disclose public records about EPA Administrator Scott Pruitt’s potential ethical conflicts, Becerra promptly sued under the federal Freedom of Information Act, coming down hard on Pruitt. “The EPA is legally required to respond to our FOIA request,” Becerra said in a statement released by his press office. “Administrator Pruitt and the Trump Administration are not above the law.”

But when his own state’s legislature passed a bill requiring police misconduct records to be released to the public under the California Public Records Act (CPRA)—in essence, California’s version of FOIA—Becerra refused to comply.  In response to the First Amendment Coalition’s CPRA request for records under the new, landmark Senate Bill 1421, Becerra’s office refused to release anything.

Instead, the Attorney General claimed that because a handful of trial courts around the state are in the midst of deciding whether certain records must be disclosed under SB 1421, “the public interest” requires the AG to refuse to disclose the records until the “legal question” about the applicability of SB 1421 “is resolved.”

This is nonsense.  Under SB 1421, which went into effect on Jan. 1, all state and local agencies are required to disclose files that have been confidential for decades, including those involving police shootings and accusations of serious police misconduct.  

While a handful of police unions across the state have rushed to court claiming SB 1421 should only apply to files created after Jan 1—none before—this argument lacks any serious legal merit.  Despite what the unions claim, it’s clear that when the Legislature passed this bill, it never envisioned it being limited only to documents created in the future.

The AG’s office knows this.  In fact, it expressly admitted in briefing submitted to the California Supreme Court last month in an unrelated case that SB 1421’s objectives — increasing transparency into police misconduct — “could not be achieved if all records of prior conduct were excluded from the law’s coverage.”

In other words, Becerra’s office has expressly acknowledged that SB 1421 requires the release of pre-2019 records — but it still won’t release such records.  This is untenable, and a deeply disturbing position for the state’s highest law enforcement officer to take.

The Attorney General, of all people, has an obligation to comply with the law—or at least to say why he believes the law doesn’t require that he disclose the records FAC requested. Becerra has done neither. Instead, he’s delegated his authority and obligation to follow—and enforce—the law to a few courts around the state.

This isn’t how it works. A government agency, in particular the Attorney General, doesn’t get to evade the law simply becausecompliance raises thorny legal or political questions.  In order to bring this crucial point home, FAC filed suit against Becerra last month to get a court to force his office to turn the records over.

Even more troubling here is a larger, insidious pattern at play. When fighting for truth, justice and government transparency serve Becerra’s political interests—for example, when it involves suing the Trump Administration, terminally unpopular in California—Becerra is at the vanguard.  

But when these lofty principles require the Attorney General to do more than lob legal bombs at Trump, things get … complicated. As described in this recent editorial in the Mercury News and East Bay Times, Becerra has a habit of jettisoning his soaring rhetoric—not to mention consistent enforcement of  the law—when his own political skin is in the game.

This is one of the reasons that the CPRA, like FOIA—and the First Amendment at large—knows no political party. Politics has a way of infecting a government agency’s approach to transparency. But transparency must be decidedly nonpartisan; the public has a right to see what its government is up to, regardless of political persuasion.

So while we at FAC cheered when Becerra sought to enforce transparency at the federal level, and indeed have ourselves sued the Trump administration for its abysmal record on transparency, we did not hesitate to go to court to force the AG to comply with California law.

If any doubt remained about Becerra’s allegiances following his dismaying reaction to SB 1421, it was erased late last month when news broke that he had threatened legal action against journalists for the unquestionably lawful act of simply receiving government records under the CPRA.

Reporters from UC Berkeley’s Investigative Reporting Program and Investigative Studios used the CPRA to obtain a list of cops who have been convicted of crimes.  They received that list from the Commission on Peace Officer Standards and Training.  Then, after receiving the list, those reporters got a letter from the Attorney General issuing a not-so-veiled threatof “legal action” if the journalists did not return the list.

The Attorney General’s letter threatened: “You are hereby on notice that the unauthorized receipt or possession of [the list of convicted cops] is a misdemeanor” (italics original), and it cited to California Penal Code section 11143.  In short, the AG threatened to bring criminal charges against the journalists for the mere possession of a list they did nothing wrong in obtaining.

What the AG’s letter did not say is that while Penal Code section 11143 does make it a crime for many people to possess the list at issue, it specifically exempts journalists.  In other words, there was no reason for the AG to cite that law but to strike unjustified fear into the hearts of law-abiding journalists.  This is the sort of saber-rattling against the press for which Trump is often (and justifiably) criticized. Coming from an elected official who positions himself as leading the anti-Trump vanguard, this would be comical if it weren’t so depressing.

But it fits with a larger picture. As in the case of SB 1421, the AG’s office disregarded clear law in order to protect police officers at the expense of government transparency and accountability.

It’s an old story for anyone who follows politics. Virtually all politicians favor transparency when their opponents are in the glare of public scrutiny. But when sunlight turns to them, they scurry into the shadows. One might have thought, given his work on the national stage, that Becerra would be different. His actions over the past month strongly suggest that’s not the case.

David Snyder, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here do not necessarily reflect the opinions of the FAC Board of Directors.

 

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