From: SF Gate
By: Tony Saavedra, 2/06/2019
California Attorney General Xavier Becerra will not release disciplinary records for his investigators under the state’s new transparency law until the courts rule on whether the statute is retroactive, saying that for now disclosure would invade the officers’ rights.
“Historically, peace officers have had a significant privacy right in their personnel records … the public interest in accessing these records is clearly outweighed by the public’s interest in protecting privacy rights,” said Becerra’s office, referring to police secrecy laws approved more than 40 years ago. “We will not disclose any records that pre-date January 1, 2019, at this time.”
The attorney general’s decision, in a letter circulated among city attorneys, has influenced agencies deciding whether to comply with the new law or wait for the outcome of court challenges by police unions trying to block access to existing records.
“Please hold on to your money,” La Verne Assistant City Attorney Cary S. Reisman wrote the Southern California News Group on Monday, citing the attorney general’s opinion and reneging on an earlier decision to supply the files in exchange for $31.80 in copying costs.
California law enforcement unions and some cities are using, in the words of one legislator, a “smokescreen,” to fight the new law, which took effect Jan. 1.
Unions in Los Angeles, Orange, Ventura, San Bernardino and Riverside counties have obtained or are seeking court orders temporarily blocking police agencies from complying with the new law until a full hearing can be conducted. Some cities, such as Buena Park, Montebello, Glendora, Huntington Park, Oxnard, Ventura and now La Verne, are simply refusing to comply without the benefit of a court order.
At issue is the language of the bill, which is silent on whether it is retroactive — that is, whether it applies to police records existing before 2019. Police agencies are required by law to maintain such records for five years.
State Sen. Nancy Skinner, who authored the transparency law, said in an interview that she intended the statute to apply to existing records on police shootings and confirmed incidents of sexual assault and dishonesty. Skinner said the court challenges speak volumes about the police unions that are trying to keep disciplinary records hidden.
“The language of the bill is very clear … if (a record) exists, it is disclosable,” said Skinner, D-Berkeley. “This whole notion (that the law must state it is retroactive) is a smokescreen. … The associations that did not support the law, they will go to court. It’s round two.”
Attorney Jacob Kalinski, representing many of the Southern California unions, said the law violates the rights of first-responders who made career decisions based on their expectation of privacy.
“I disagree with that characterization of a smokescreen,” Kalinski said. “I just don’t see why we all wouldn’t want to wait for the courts to come down with a ruling before reacting.”
It could take months before the challenges wind through the lower courts, appellate courts and, finally, the state Supreme Court.
While some cities are citing the retroactivity argument, others are charging tens of thousands of dollars for the public to obtain the records. For instance, Anaheim wants $96,000 to copy and remove nonpublic information from audio and video evidence produced by such devices as body cameras.
The city estimates the process will take more than 1,200 hours at $80 an hour. City lawyers point to a 2018 appellate ruling — the National Lawyers Guild v. the city of Hayward — that allows municipalities to charge for the direct costs of copying and redacting a document.
In San Diego County, sheriff’s officials want $30,617 to copy and redact several hours of audio and videos dealing with confirmed sexual assaults by deputies. San Diego County estimates its hourly cost at $33, much lower than in Anaheim, but still high.
Several agencies have already complied with the law and provided records to the Southern California News Group, including police departments in Laguna Beach, Colton, Pomona, Escondido and Porterville, as well as the Palomar Community College District.
About 25 agencies, mostly small city departments and school police, did not have any responsive documents for the five-year period, 2014 to 2019, requested by the news group.
