From: San Francisco Chronicle
By: Megan Cassidy, 2/08/2019
A new California law requiring cities to unseal police misconduct records applies to past records as well as new ones, a judge decided Friday in denying injunction requests from several police unions fighting to prevent the release of pre-2019 records.
Contra Costa County Superior Court Judge Charles Treat’s decision is the first in a wave of lawsuits across the state by unions that say the state’s transparency law, SB1421, should not force cities and counties to release police misconduct records created before the law took effect on Jan. 1.
Six law enforcement unions in Contra Costa County — in Concord, Richmond, Antioch, Martinez and Walnut Creek, as well as the Contra Costa County Deputy Sheriff’s Association — sought preliminary injunctions to bar officials in their cities and county from releasing pre-2019 personnel records. Several law enforcement associations in Southern California have filed similar suits in their own counties.
Treat said the attorneys for the unions in Contra Costa County failed to convince him the law should apply only to new documents. He denied their requests for preliminary injunctions.
Treat, however, ordered that the records remain withheld for 10 more days to allow unions time to appeal, should they choose to do so. Treat had recently issued a temporary restraining order to prevent cities from releasing the documents while the matter was pending in court.
SB1421, by Sen. Nancy Skinner, D-Berkeley, is intended to unveil certain California police personnel files, which for decades have been guarded by some of the most rigid privacy laws in the nation.
The law applies to records “maintained by an agency” involving sustained findings of sexual assault or dishonesty by law enforcement officers while on the clock, and for records involving deadly or serious use of force, regardless of whether the force was deemed justified. Some agencies, including Fairfield police, have already released some of these records in response to public records requests.
The California Supreme Court has already declined to weigh in on the matter, after the San Bernardino County Sheriff’s Employees’ Benefit Association filed a similar suit with the high court.
This leaves the cases to be handled by local courts. Treat was the first to officially rule one way or another, but his order doesn’t set a precedent for other counties. The issue could make it back to the California Supreme Court if another judge’s ruling favors the unions.
The hearing drew about 15 protesters to the downtown Martinez courthouse Friday afternoon, with signs and chants demanding that the records be made public.
Inside the courtroom, union lawyers battled not the cities that maintain the records but attorneys representing the American Civil Liberties Union and various media outlets. Attorneys for the cities declined to lodge any arguments before the court.
The ACLU is seeking several of these secret documents, including records on eight fatal Bay Area shootings. Among the requested records are documents pertaining to the shooting of Oscar Grant at an Oakland BART station 10 years ago and last year’s Sacramento police killing of 22-year-old Stephon Clark.
Among his arguments, union attorney Timothy Talbot said some officers may have dealt with misconduct accusations differently in the past if their records weren’t kept confidential.
Some officers, he said, “may have forgone an opportunity to appeal or challenge administratively some finding to the highest level, knowing that protection existed.”
Talbot said the burden was on his opponents to prove that the law was intended to apply to incidents before this year, not the other way around.
“We’re fighting for those rights that existed prior to 2019, which precluded that limited disclosure,” he said.
Kathleen Guneratne, an attorney with the ACLU of Northern California, said that police unions were well aware of the effects of SB1421 as it was making its way through the Legislature, and unions fought it then, too.
She said there essentially is no “retroactivity” argument, and that public records laws apply to any documents currently maintained by a government agency.
Guneratne called the unions’ court battles “a last-ditch effort to subvert the will of the people and the statute.”
“We don’t think that the language ‘records maintained by an agency’ is ambiguous,” she said. “‘Records maintained by an agency’ means records in the possession of that agency.”
Treat seemed to agree. In his ruling, the judge wrote that “it makes little sense to suppose that the Legislature saw these serious problems and concerns as applying strongly to police personnel records dating to 2019 — but that it viewed the same problems and concerns as categorically inapplicable to police personnel records dating to 2018 or earlier.”
When speaking to reporters outside the courthouse after the hearing, Talbot said they would probably file an appeal in the short window available, but the decision was ultimately left to his clients.
