Author Of California's Public Records Law: The Law Covers Old Police Misconduct Files, Not Just The New Ones
from the stick-that-in-your-deliberate-obtuseness,-PD-officials dept
For the first time in years, California police misconduct records are accessible by the public. There's a huge asterisk on that sentence because, so far, law enforcement agencies have been unwilling to hand them over.
One police department decided to purge all of its old records before the law went into effect, mooting the question with a questionable memory-holing. Other agencies have told requesters the law isn't retroactive, pretending the law says something it doesn't. A sheriff's union tried to force the question by petitioning the state's supreme court, but the court declined the opportunity to clarify the law's ability to open up records of past misconduct.
At this point it's clear PDs aren't interested in complying with the new law. They'll sit on records until they're forced out of their hands by lawsuits. This isn't how transparency is supposed to work. The law wasn't a History Eraser button for old files and it certainly isn't there to assist PDs in withholding documents they're definitely obligated to turn over to the public.
Most law enforcement agencies appear to believe the law hit the reset on misconduct records, ordering them only to release records created past the point the law went into effect (January 1st, 2019). Again, the law says nothing about it only affecting records going forward, but since it doesn't say anything specifically about past misconduct records, law enforcement agencies will continue to pretend it doesn't affect those until courts tell them otherwise.
Whenever the courts take up the question, they'll have to examine the bill-making process and the law itself to determine its legislative intent. The law doesn't have to specifically order the release of pre-2019 documents if it's clear legislators intended the law to be retroactive. Fortunately for those suing PDs over withheld documents, the legislation's author has decided to clear the air on the law police departments are conveniently and deliberately misunderstanding.
In a one-page letter to the state Senate Rules Committee, Sen. Nancy Skinner (D-Berkeley), sought to clarify the intent of the law, which opens up records of shootings by officers, severe uses of force and confirmed cases of sexual assault and lying by officers.
In the letter obtained by The Times, Skinner said any relevant discipline records kept by a government agency should be disclosed under the new law, which was approved last year.
“Therefore, it 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,” Skinner wrote. “This is the standard practice for public records legislation in California.”
We'll see how quickly this letter results in the lifting of the temporary restraining order secured by Contra Costa law enforcement agencies, which are being sued by California newspapers for refusing to turn over historical misconduct files. There doesn't seem to be any room for misunderstanding in Skinner's letter. But if anyone's incapable of understanding crystal clear laws, it's law enforcement agencies.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: california, foia, nancy skinner, police, police misconduct, public records, retroactive
Reader Comments
Subscribe: RSS
View by: Time | Thread
Wording matters, offer to claim more excuses
Thus directing law enforcement agencies to claim that the records are a part of an ongoing investigation even when the cases have been closed otherwise. Or, and maybe more pertinent, they will come up with other reasons that the records are not disclosable such as, we nuked them, or we don't have records for that incident, or it's a personnel matter, or the question is beyond the statue of limitations, or...none of which are legitimate excuses. Even the nuked records should be made available. There is a back up somewhere, or there are printed records, or there are court cases, or personnel proceedings, or entries in an officers record, etc..
They are employed by the public and all records, past or present should be accessible, unless they are legitimately part of an ongoing investigation, the law says so. Secrecy such as 'confidential informants' should not be a constraint against the public knowing what is going on. CI's might be pertinent to one case or another, but should not have immunity from identification, or investigation, forever.
Then there is the record of officers lying on the witness stand. These should be an integral part of qualifying any testimony given by these officers in any future litigation, and actually prevent them from testifying, as they are known liars.
I would prefer it to be otherwise, but not that lying officers get the benefit of the doubt, but that officers conducted themselves in such a way that they did not need to lie on the witness stand. It's gonna take a long time to get there.
[ link to this | view in chronology ]
Re: Wording matters, offer to claim more excuses
The only answer is to create a database outside of police control. We need to watch the watchers.
[ link to this | view in chronology ]
Create a database outside of police control...
by a department who doesn't like the police very much.
We need a change of culture regarding the government in which opacity is by implication an indicator of malicious wrongdoing.
It already is a cover-up by which to escape audit.
[ link to this | view in chronology ]
Re: Create a database outside of police control...
There are already various citizen committees that 'oversee' police forces. Unfortunately they don't have much power, and if they did, what about the potential for retribution?
There is a need for a Federal Government agency that protects Civil Rights and other Constitutional protections against government exigencies. The DoJ is supposed to do that, but by policy, at least for now, they won't. And when they have, in the past, they were lackluster in their efforts, fellow law enforcement considerations one presumes, but there may be other reasons for their failure to do their jobs.
The effort needs to be attributed with significant power. Power to subpoena, power to request warrants, power to question political positions, and in the whole with the protection of citizens, not law enforcement, in mind. Being a part of the Government, selection, at least of the head people, is a problem. Election doesn't work, appointment by the Executive doesn't work, so how the achieve this is certainly problematic.
Governments tend to want to protect their selves, and any agency that is subject to political pressure, in any way, it liable to protect the Government first, and the people second. This is wrong.
[ link to this | view in chronology ]
Institutions are ultimately self-serving
Governments tend to want to protect their selves, and any agency that is subject to political pressure, in any way, it liable to protect the Government first, and the people second. This is wrong.
It's consistent with Pournelle's Iron Law of Bureaucracy which really is an expression of how entropy applies to bureaucratic systems.
The question we're considering now is if this process of deterioration can be checked in any way (slowed, detected and corrected, or purged and renewed periodically) if not, then the Libertarians and Anarchists have a point that humans are too primal to civilize.
But if we can, then we need to find out how. Otherwise any justice system including law enforcement will become a ruling class that enforces law (as they define it) for everyone else but themselves, as the US law enforcement is today.
For now, our courts and our department of justice is not going to give up their power if they can hold it by force, so we're going to have to come to terms with eventually overwhelming that force, or with staying peons in a new, ruthless feudal system.
[ link to this | view in chronology ]
Re: Wording matters, offer to claim more excuses
The law does not say that all the documents you reference are public. In California personnel files are generally not public records outside of position and compensation. AB1421 made certain categories of personnel documents regarding peace officers public records. However, it is very limited in scope.
[ link to this | view in chronology ]
Words
Interpreting the new law will require reading what was written. If the author has some insight that can be a good thing but the people that voted it in didn't have that when they made it a law.
[ link to this | view in chronology ]
Re: Words
What? The author of a bill can influence how the courts interpret it? How the people subject to the law are affected by it?
Call the author of the Patriot Act! Stat!
[ link to this | view in chronology ]
Re: Re: Words
Bad news: the PATRIOT Act has been used exactly as its authors intended.
[ link to this | view in chronology ]
They should have included actual penalties for destroying records that the law applies to, regardless of their age.
[ link to this | view in chronology ]
Re:
I think there are such laws, but they only apply to the little people.
[ link to this | view in chronology ]
Re:
All this law does is designate that certain categories of documents are public documents which previously were not so categorized. Every public agency routinely purges documents because there is a cost to maintaining them. There are laws requiring retention of different types of documents for specified periods. If you want them kept longer, you have to come up with the storage and maintenance budget to do so.
[ link to this | view in chronology ]
Its only a few bad apples and not reflective of all police officers, but we are going to put our reputation above your safety.
[ link to this | view in chronology ]
Re:
But their reputation is already many thousands of feet below the toilet, isn't it?
[ link to this | view in chronology ]
* Hands over Shovel *
Keep digging.
[ link to this | view in chronology ]
LawDirt
[ link to this | view in chronology ]
That's not what "retroactive" means
If the law were retroactive, government employees could be successfully sued for having not released records years ago in response to old requests. The constitution doesn't allow such laws. The law is about releasing (old and new) data in the future, ie. while the law is active.
[ link to this | view in chronology ]
"The constitution doesn't allow such laws. The law is about releasing (old and new) data in the future, ie. while the law is active." Citation requested
[ link to this | view in chronology ]
Re:
Article I section 10, see the reference to ex post facto laws.
[ link to this | view in chronology ]