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On paper, California has some of the nation’s best open records laws, the latest of which allows access to previously secret information about police misconduct.
However, passing a sunshine law is one thing, while applying it may be entirely different.
That’s currently being demonstrated vis-à-vis the aforementioned law granting access to police misconduct records.
The Los Angeles Times and other media outlets jointly explored how police officials are complying with requests for information and found that “six months after Senate Bill 1421 went into effect, some of the state’s largest law enforcement agencies haven’t provided a single record. Some law enforcement organizations are charging high fees for records, destroying documents and even ignoring court orders to produce the files.”
Agencies that are stonewalling records requests include the California Highway Patro. Sen. Nancy Skinner, a Berkeley Democrat who authored the new law, told the Times, “If the state agencies themselves are acting like they’re above the law, that’s absolutely the wrong model and the wrong example to set for the rest of the local government agencies up and down the state.”
Footdragging is not confined to local or state police departments.
San Francisco Superior Court Judge Richard Ulmer ruled on May 17 that SB 1421 requires the state Department of Justice to release all records on officer sexual assault, dishonesty and serious use of force, including files about police and sheriff’s deputies that the department possesses.
The suit was brought by the First Amendment Coalition and public radio station KQED.
However, Attorney General Xavier Becerra, who had rebuffed requests for records held by his agency, is appealing Judge Ulmer’s ruling, arguing anew that the Department of Justice shouldn’t have to release records on local police misconduct.
The frustrations about obtaining police records that the Legislature declared to be accessible mirrors what journalists and others have experienced while invoking the half-century-old California Public Records Act (PRA) to obtain documents.
It’s not uncommon for government officials to stall on requests or misuse the law’s exemptions to deny access. Currently, the only way for frustrated requesters to proceed is to sue, which may string out the issue for months or even years and is, of course, quite costly.
Assemblyman Vince Fong introduced legislation, backed by journalistic and good government groups, to provide another avenue to appeal PRA denials by state agencies. Assembly Bill 289 would designate the state auditor, currently Elaine Howle, as an “independent referee” to examine denied requests and, if warranted, order the affected agency to comply.
The bill passed the Assembly without dissent but ran into a stone wall last week in the Senate Judiciary Committee, whose chairwoman, Santa Barbara Democrat Hannah-Beth Jackson, had what she described as “two pages of concerns.”
She said it would allow a single unelected official to make decisions without judicial review and described the measure as “not ripe for prime time.”
With her opposition, the bill died on a partisan vote. “The Senate Judiciary Committee had an opportunity to bring transparency to state government and to close a loophole that allows bureaucrats to operate in secrecy with very little opportunity to be accountable to the public,” Fong, a Bakersfield Republican, said afterwards.
Some of Jackson’s criticism is well-placed, but the death of AB 289 leaves a serious problem unresolved. Those seeking records from recalcitrant agencies face expensive, often protracted battles with officials such as Becerra who have bottomless reservoirs of tax funds with which to wage legal war.