Update, Jan. 31, 7 p.m. The Berkeley City Council met in closed session Thursday evening and told staff that SB 1421 should apply “to existing records pre-dating Jan. 1, 2019.” The vote was unanimous, according to Mayor Jesse Arreguín. He informed the public of the vote at the beginning of Thursday’s special council meeting to consider a zoning board appeal.
Original story, Jan. 30: Berkeleyside and the ACLU of Northern California sued the city of Berkeley on Wednesday in Alameda County Superior Court over the city’s refusal to release police records that many argue are now disclosable under a new police transparency law authored by Sen. Nancy Skinner.
The law, SB 1421, allows for the release of police records related to misconduct and significant use of force, such as police shootings, that were not historically public in California because they were deemed private personnel records. After the law went into effect Jan. 1, 2019, many police unions around the state took the position that records created prior to 2019 are still confidential.
A number of lawsuits have already been filed this year on both sides of the new transparency law. Media organizations, First Amendment experts and legislators, including Skinner, say the law applies to all existing records and cities should release them. Meanwhile, the law firm Rains Lucia Stern St. Phalle & Silver, representing police unions around the state, says the law should only apply to incidents from 2019 going forward. It sought restraining orders to stop the release of earlier records and has been granted a number of temporary orders while judges consider the issue.
Many California law enforcement agencies have declined to release records, while some have been more forthcoming, according to data compiled recently by KTVU. Burlingame PD, for example, shared the name of an officer who was fired after he offered to help a woman with a DUI charge if she agreed to have sex with him, according to media reports. Emeryville PD said it fired an officer for lying and released the names of officers involved in high-profile shootings.
Earlier this month, in response to a Public Records Act request from Berkeleyside, the city of Berkeley said it did not have to release pre-2019 records regarding the use of force resulting in great bodily injury or death. The city said it did not have to release pre-2019 misconduct records related to dishonesty or sexual assault either. But it went on to say it had searched five years of those misconduct records and found nothing.
The week after the city’s first response, it revised its position and said it was “evaluating the applicability” of SB 1421 to pre-2019 records. The city said it would make a new determination by Feb. 11 about disclosable records. It gave no explanation for the new deadline and provided no additional records.
In the Jan. 30 lawsuit, Michael T. Risher and attorneys from the American Civil Liberties Union of Northern California (ACLU-NC) have said Berkeley should release all the requested records it has “regardless of when they were created.” The city should “withhold only those portions that the current law protects from disclosure.”
They argue that the city violated the Public Records Act because any records held should be shared, and also because it limited its misconduct-related search to five years when Berkeleyside had asked for records over a broader period.
“The new law states that the records that Berkeleyside requested ‘shall be made available for public inspection,’ ‘notwithstanding any other law,'” said Berkeley-based Risher, a longtime ACLU-NC senior staff attorney who is now in private practice. “There is nothing in the law that even suggests that the government can refuse to make records public just because they were created last year.”
The attorneys wrote, too, that the Feb. 11 timeframe does not comply with the Public Records Act (PRA), which requires a response “within 10, or at most 24, calendar days after receiving a request.”
“They also ask the Court to declare that the City violated the PRA by failing to conduct searches based on the time frame set forth in the requests, by unilaterally giving itself until February 11 to decide whether to comply with Berkeleyside’s January 2 request, and by failing to provide the ACLU-NC with any compliance date,” according to court papers. “If necessary, the Court should enjoin the City from committing similar violations in the future.”
Skinner (D-Berkeley) told Berkeleyside that the city’s refusal to release the records struck her as “pretty outrageous.” She suggested that City Council members might need to get involved to urge staff to rethink the policy.
“Here we have a community that has been one of the first in the entire United States to have very robust citizen review of police practices through ordinances that established Berkeley’s Police Review Commission in the early 70s,” she said. “I would hope that the court of public opinion — the community of Berkeley — that has been one of the boldest when it comes to real transparency and citizen accountability for its law enforcement would hold its other city officials accountable similarly.”
Skinner described the police union position against so-called “retroactivity” as a “very clever tactic” and a “smokescreen” that no one brought up during her many discussions with law enforcement groups during the creation of the bill.
“If a record exists, and under the law it is disclosable, then it is disclosable,” she said. “We didn’t need to discuss that [the timing] because we were amending the Public Records Act.”
A number of SB 1421 cases are already underway in Southern California and Contra Costa County. Law firm Rains Lucia Stern (RLS) secured temporary restraining orders last week against Richmond, Antioch, Concord, Martinez and Walnut Creek and the county of Contra Costa to ensure that pre-2019 records are, at least for now, withheld.
“RLS has asserted in all of the cases that SB 1421 is not retroactive and should only apply to incidents that occur on or after January 1, 2019,” according to a statement released last week. “The petitions filed on behalf of our clients seek to protect the confidentiality of their personnel files that existed before the enactment of the statute.”
In late December, RLS had asked the state Supreme Court to say the law would apply only to records from 2019 forward. But “the Supreme Court denied the petition and a related request to issue a stay, which could have stopped the release of records made public by the new law throughout the state,” KQED reported. First Amendment advocates called it a substantial win.
Berkeley’s case was somewhat different from a number of other jurisdictions, First Amendment experts have noted, because the city itself declined to release its records — rather than taking a more transparent approach and being stopped by police union legal action.
“The law was intended to make existing records available to the public,” said Kathleen Guneratne, senior staff attorney at the ACLU of Northern California. “The city of Berkeley’s refusal to release records that predate January 1, 2019, undermines transparency and the public’s ability to hold law enforcement accountable for misconduct in the communities that they should be protecting.”