California AG responds to barrage of criticism over not disclosing police personnel records

SAN FRANCISCO (KTVU) - Since his decision to withhold police personnel files now required by be made public, the Attorney General of California has faced a barrage of criticism from major news organizations and has been sued by the First Amendment Coalition, alleging he is breaking the law.

“It’s time for Xavier Becerra to show some courage,” the Los Angeles Times editorial board wrote.

“Becerra sides with law enforcement against public transparency,” opined the San Francisco Chronicle.

“Becerra betrays public trust and the law,” the Sacramento Bee editorial board said. 

Xavier Becerra’s decision to not hand over these files for Department of Justice officers he oversees also has had a ripple effect on police agencies throughout the state, which had been poised to release them, but then reversed course because of the weight his office carries. 

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2 Investigates, along with the American Civil Liberties Union, found that at least 42 departments throughout California are currently refusing to release police personnel files under SB 1421, which cover instances when police use force that causes death or great bodily injury, and when there are sustained findings against them that they lied or had inappropriate sexual misconduct on the job.

These agencies are insisting that “The Right to Know Act,” or SB 1421, should not be retroactive to before Jan. 1,  despite the author of the bill, Sen. Nancy Skinner, (D-Berkeley) and two judges, in Los Angeles and Contra Costa counties, saying the law applies to all public records no matter when they were created. 

Included in that number are 11 agencies – including Palo Alto police and the San Mateo County Sheriff’s Department – which had said they would release the files, but then changed their minds, citing Becerra’s decision to hold back. 

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"The AG's position caused me to take another fresh look at the law,” San Mateo County Chief Deputy Counsel David A. Silberman told KTVU in an earlier interview. “His opinion is given significant deference. It specifically noted the concern about not violating the privacy rights of officers. You have to give that a lot of weight." 

On Thursday, 2 Investigates questioned Becerra to explain in more detail why he is not releasing the files, and elaborate on why he believes that officers’ files should be kept secret because historically they have been. The Attorney General's Division of Law Enforcement comprises sworn officers with the Department of Justice, such as the Bureau of Firearms and Narcotics Enforcement.

“We’re waiting to see what those courts say,” he said. “When it comes to disclosing a person's private information, you don't get a second chance to get it right. And so if we disclose this private personnel data, and we find out that the courts rule that it should not have been disclosed, it's too late for all those individuals…We're not going to mess with people's private information. We're going to do it right."

As for his critics, Becerra stuck to this line: “It’s not a matter of what I believe or what I don’t believe. It’s a matter of trying to implement the law the right way.” 

In court papers, however, Becerra seemed to dial back his original statement this week when he filed an amicus brief before a pending state Supreme Court case. In the brief, he acknowledged that the law is intended to be retroactive, but he also reiterated that he wants courts to definitively interpret that the law applies to records of older incidents before he makes public those held by his office. The matter has not been settled in four court jurisdictions, and the matter is winding its way through the appeals courts in at least two cases, before it inevitably lands in the Supreme Court. 

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Becerra said he will honor whatever ruling the highest court has to say.

“If a law is enacted that changes those standards, we will respect it,” he said. “That's my job. In fact, we will defend it. But I want to make sure I understand what exactly the law requires me to do. And when there are some courts that are saying hold up, it's not clear. I'm not going to jump ahead of them and presuppose what they're going to decide."

He emphasized again: “If these rulings becomes clear, I'll be the first to get the information out there and do what the courts tell us -- whatever the interpretation of the law is."

But despite amicus brief filing, the Los Angeles Times noted that Becerra is not upholding his own legal opinion. 

And as for other agencies who are following his lead, Becerra said: “We haven't told anyone what they should do. We've only explained to those who have requested information from us what we're going to do.” 

Not all police agencies are waiting for the courts to decide.

Reporting by 2 Investigates and the ALCU has found that 62 departments so far have released records and 73 said they will produce when the records are ready.  A total of 93 other departments said the files are “under agency review,” which means they haven’t said either way whether they will produce the reocords or not.