Metropolitan News-Enterprise


Friday, January 31, 2020


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C.A. Rejects Becerra’s Stance on Release of Police-Conduct Records

Amendment to California Public Records Act Does Not Limit New Provisions to Records Generated by the Agency From Which They Are Sought, First District Opinion Declares


By a MetNews Staff Writer


The First District Court of Appeal has rejected the contention of California Attorney General Xavier Becerra that the state Department of Justice need not provide police records, pursuant to an amendment to the California Public Records Act, that went into effect Jan. 1, 2019, where those records are in its possession but were generated by another agency.

Justice Carin T. Fujisaki of Div. Three wrote opinion, filed Wednesday but made public yesterday, which denies a writ of mandate sought by Becerra to overturn an order by San Francisco Superior Court Judge Richard B. Ulmer to hand over records sought by the First Amendment Coalition and the Bay Area’s public television station, KQED.

The California Public Records Act (“CPRA”) was amended by SB 1421, authored by Sen. Nancy Skinner, D-East Bay, which was signed into law by then-Gov. Jerry Brown on Sept. 30, 2018. It makes public any record relating to a law enforcement officer’s discharge of a firearm, use of force resulting in great bodily injury, or—where an allegation was sustained—a sexual assault on a member of the public or dishonesty.

Attorney General’s Position

Becerra’s office, in a Feb. 1, 2019 letter from Supervising Deputy Attorney General Mark K. Beckington to the First Amendment Coalition, in response to its Jan. 4 request under the CPRA, said:

“To the extent that the Attorney General has obtained records from other state and local law enforcement agencies, the Attorney General is not the agency that ‘’maintains’ those documents. A requester may properly seek disclosure from the employing agency, which not only maintains the records, but will be best situated to assess any applicable exceptions to the disclosure requirement and any statutorily required redactions concerning sensitive and private information.”

Ulmer rejected that view, as did Fujisaki, in yesterday’s opinion.

Fujisaki noted that under Penal Code §832.7, as amended by SB 1421, the specified types of “peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act.”

Portions of CPRA

She then looked at two portions of the CPRA, adding emphasis to each in quoting it. Government Code §6253, pointed out, says:

“Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided.”

Fujisaki said that Government Code defines “public records” as including “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”

The jurist drew this conclusion:

“A plain reading of these two CPRA statutes and the italicized language therein leads to the conclusion that, ordinarily, members of the public may inspect ‘any’ public record ‘retained by’ or in the possession of a state agency such as the Department, even if the record was not ‘prepared, owned, [or] used’ by the particular agency.”

Section 832.7

She added:

“Whether section 832.7 is considered on its own or in conjunction with the CPRA, the statutory language appears unambiguous in contemplating disclosure of the records in dispute.  Standing on its own, section 832.7’s statutory phrase ‘peace officer...personnel records and records maintained by any state or local agency’ (italics added) makes clear that officer-related records in the Department’s possession are subject to disclosure, regardless whether such records concern peace officers employed by the Department or by another state or local agency (hereafter non-Department officers), and no matter which agency created them.”

  If the Legislature had intended that an agency be required to provide only those records originating with it, Fujisaki reasoned, it would have so specified.

‘Catchall’ Provision

The CPRA contains a “catchall” provision, exempting records where an agency shows “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”

That provision applies, Fujisaki said, to records that are disclosable by virtue of §832.7, but observed that the Department of Justice “fell short of demonstrating that the public interest served by nondisclosure of the records at issue clearly outweighs the public interest in their disclosure.”

She specified, however:

“[W]e emphasize that nothing in our opinion should be understood as barring the trial court from reconsidering the applicability of the CPRA catchall exemption as to any of the requested records upon a proper showing by the Department.”

The case is Becerra v. Superior Court, A157998.

Comments on Opinion

The First Amendment Coalition’s executive director, David Snyder, issued a statement saying:

 “We are grateful the Court saw through the attorney general’s arguments, which would have shut the public out of a trove of serious police misconduct files. We are optimistic the agency will now begin producing records it has fought for over a year to keep secret—but if not, we will keep up the fight.”

Glen Smith, the First Amendment Coalition’s litigation director, remarked:

“We would hope that they would now begin the process of compliance, but given how they’ve handled this case so far I think there’s a very good chance they will continue to drag their heels and assert every exemption they can lay their hands on.”

Ethan Lindsey, executive editor of News for KQED, commented:

“This ruling from the appeals court is a victory for truth and transparency—but it is not just that. This should be a marker for agencies around the state who continue to withhold public documents. The ruling shows that the public deserves to see these records.”

The Office of Attorney General has said it is reviewing the decision and has not otherwise commented.


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