California must disclose old police misconduct records, appellate court rules

(CN) — An appeals panel sided with a San Francisco Bay Area free speech group on Thursday when it ruled that police officer misconduct records were not protected by the disclosure elements of California’s Public Records Act.

In 2019, the Free Speech Coalition sued then-Attorney General Xavier Becerra and the California Department of Justice for refusing to hand over records related to police misconduct and excessive use of force. The coalition said Senate Bill 1421, introduced in 2019 by state Senator Nancy Skinner, opened up access to personnel records on police shootings; excessive uses of force that resulted in death or “great bodily injury;” and confirmed cases of sexual assault and lying by officers while on duty.

When SB 1421 went into effect on Jan. 1, 2019, numerous police unions sued to stop demands for records. Becerra and the unions argued that the law couldn't be applied to older records because the state Legislature did not explicitly state that it retroactive; therefore, disclosing pre-2019 police records would violate officers’ privacy rights. 

State court judges overwhelmingly rejected that argument, and current Attorney General Rob Bonta, appointed by President Biden in 2021, said he would comply and release the records.

Still, the Department of Justice withheld certain officer-related records, saying their disclosure was either exempted or prohibited by statutes not specifically mentioned in the California Public Records Act. In response, the petitioners filed a motion for judgment compelling disclosure of the withheld documents.

In a 30-page opinion, Justice Carin Fujisaki wrote that the law indeed applies retroactively and “supersedes state law disclosure exemptions” that “pose a direct conflict with its decree that records within its scope are not confidential and shall be made available to the public.”

The only exception to this, the appellate court found, would be attorney-client communications.

Justices Ioana Petrou and Victor Rodriguez concurred with the opinion.

The defendants had been relying on California Government Code Section 11833, which prohibits officers from disclosing any subpoenaed records. Officers that violate the code could be charged with a misdemeanor and would be prohibited from acting in any official capacity for the department.

“We have, however, already concluded that Government Code section 11183 poses a direct conflict to the extent it would allow the department to shield a broad swath of officer-related records that are subject to public inspection pursuant to section 832.7(b), and that therefore effect must be given to section 832.7(b)(1)’s notwithstanding clause. If the department believes the confidentiality protections in Government Code section 11183 deserve precedence over section 832.7(b)’s express contemplation that records within its scope are not confidential and shall be disclosed, it may take its cause to the Legislature,” Fujisaki wrote.

The defendants contended that the law couldn't be applied to records obtained during a pattern-or-practice investigation, “because such investigations are aimed at systemic violations and do not target individual incidents for review.”

“In other words, the department seems to read these statutory provisions as excluding records from the scope of section 832.7(b) when they are obtained during a review or investigation of multiple incidents of misconduct. We are not convinced,” Fujisaki wrote.

The court determined that the penal code made it clear that terms referencing the singular also include the plural and vice versa.

“By contrast, the department's textual construction would categorically shield officer-related records whenever a local or oversight agency conducts a single investigation involving separate incidents of misconduct committed by one officer, or a single investigation of misconduct committed by multiple officers, no matter how related the incident,” Fujisaki wrote.

The matter will be remanded to the respondent court for any further proceedings consistent with the panel’s opinion.

Requests for comment from the Free Speech Coalition were not returned before publication.

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