The First Amendment Coalition won an important legal victory in its year-long effort to enforce California’s landmark police transparency law, with an appeals court saying the public has a right to see police misconduct records the state attorney general has on local officers across the state.
The Wednesday ruling means the state’s top law enforcement official, whose agency conducts outside reviews of local police shootings and complaints of officer misconduct, has the same disclosure obligations as the police departments and sheriff’s offices that employ the officers.
The First District Court of Appeal in San Francisco in a unanimous opinion rejected Attorney General Xavier Becerra’s argument that the new transparency law, known as SB 1421, doesn’t apply to records his agency has obtained or created related to officers employed by local agencies. The court also rejected Becerra’s arguments that producing the records sought by FAC and others would be too costly and burdensome.
“We are grateful the Court saw through the attorney general’s arguments, which would have shut the public out of a trove of serious police misconduct files,” said FAC Executive Director David Snyder. “We are optimistic the agency will now begin producing records it has fought for over a year to keep secret — but if not, we will keep up the fight.”
FAC, joined by public news outlet KQED, sued last year after Becerra’s office refused to turn over records in response to California Public Records Act requests seeking the information newly available after SB 1421 went into effect on Jan. 1, 2019.
The law, which covers instances of serious use-of-force, sexual assault of a member of the public and official dishonesty, ended decades of secrecy over police personnel files in the state. Writing for the three-judge panel, Justice Carin Fujisaki said the new transparency provisions were “in acknowledgment of the extraordinary authority vested in peace officers and the serious harms occasioned by misuse of that authority.”
Becerra’s office at first argued that SB 1421 was not retroactive, so old files could remain shielded — a position his lawyers abandoned after the superior court ruled against him. FAC and a media coalition previously won a separate appellate court ruling rejecting the retroactivity claims. But Becerra’s office continued to maintain that the law only required the release of records related to an agency’s own employees, a San Francisco Superior Court judge rejected in May. Becerra petitioned the appeal court to review that decision.
While the justices upheld the lower court ruling in FAC and KQED’s favor, the release of the requested records is not necessarily imminent. The court noted Becerra’s office can challenge disclosure of individual records based on various exemptions allowed by the Public Records Act. And his office could appeal to the California Supreme Court.
FAC is represented by Michael T. Risher. KQED is represented by Thomas R. Burke of the law firm Davis Wright Tremaine.
Read KQED’s coverage.
For more information:
David Snyder
Executive Director
First Amendment Coalition
fac@firstamendmentcoalition.org
Michael T. Risher
Law Office of Michael T. Risher
(510) 689-1657
Thomas R. Burke
Davis Wright Tremaine
(415) 276.6552
thomasburke@dwt.com