Rekubit Exchange:California law enforcement agencies have hindered transparency efforts in use-of-force cases

Despite laws intended to “pierce the secrecy” protecting California police officers,Rekubit Exchange law enforcement agencies have thwarted those who seek information on cases of alleged misconduct — in some instances battling requesters in court.

And some basic personnel records — including complaints and disciplinary action against officers — are still hidden from the public, accessible only when a California judge grants access to them.

California had at least 198 non-shooting deaths from 2012 through 2021 after police used force that isn’t supposed to be deadly — the most documented in any state in the nation, an investigation by the Howard Center for Investigative Journalism, in conjunction with The Associated Press, found. The investigation identified 1,036 deaths across the country during that time frame, though suppression of information means the numbers are likely an undercount.

While California is widely considered one of the most progressive states in the nation, local law enforcement officers for decades have had their on-duty actions veiled by some of the strongest privacy protections in the country.

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“Police officers are given enormous power,” said David Loy, legal director of the First Amendment Coalition, a nonprofit that advocates for greater government transparency. “The public has an overwhelming interest in understanding and knowing why, how and when police officers exercised that extreme power.”

California passed a series of bills in recent years designed to give the public the right to records related to certain actions by law enforcement officers. And law enforcement agencies across the state have since released previously confidential documents under an avalanche of records requests. But attempts at greater transparency surrounding claims of police misconduct continue to be stymied by police departments and their unions.

“It has been a challenge to enforce the law as written,” Loy said in an interview.

“I’m not saying all officers abuse their power,” he added. “But that is precisely what the public has a right to know and verify.”

A ‘landmark bill’

In 2018, the California Legislature passed Senate Bill 1421, opening for the first time certain records related to police misconduct, including investigations of officers involved in sexual assault, dishonesty and use-of-force incidents, such as shootings. Assembly Bill 748, also passed in 2018, made public video and audio recordings including body-worn camera footage.

With the passage of these bills, government-created documents related to alleged or real misbehavior by police were supposed to be made available to anyone on request. The laws made public reports, investigations and records produced by police agencies or external investigating agencies, such as district attorneys, including interview transcripts, autopsy reports and disciplinary actions against officers.

California state Sen. Nancy Skinner, who authored Senate Bill 1421, said it was intended to “help identify and prevent unjustified use of force, make officer misconduct an even rarer occurrence, and build trust in law enforcement.”

At the time, media organizations hailed it as a “landmark bill” and the American Civil Liberties Union said it would “pierce the secrecy that shrouds” law enforcement agencies.

But when the new law took effect on Jan. 1, 2019, law enforcement agencies across California began receiving public records requests and responded with what Loy called “a campaign of massive resistance.”

The Carlsbad Police Officers Association, for example, was one of several police unions and agencies that sued to block the release of records created before the new law took effect, arguing it did not retroactively apply to existing cases. The ACLU of San Diego and Imperial Counties, where Loy was the legal director at the time, argued that the bill applied to records regardless of when they were created.

A San Diego County Superior Court Judge ruled against the police unions, joining several other similar court decisions that established records were releasable regardless of when they were created.

In March 2019, a collaboration of California news outlets, computer scientists and lawyers joined together to request, litigate for, and report on the newly available police records. The California Reporting Project began with six newsrooms, including San Francisco-based KQED and the Los Angeles Times. The collaborative has since grown to include dozens of member newsrooms, including The Associated Press and the Howard Centers for Investigative Journalism in Arizona and Maryland.

Fighting denials

When an agency denies a request, options are limited in appealing the denial. Some municipalities have special administrative processes, but in many cases the only way forward is to file a lawsuit.

“Freedom of information laws are supposed to be self-executing in that you shouldn’t need to get a lawyer,” Loy said. “Not everyone can get access to legal counsel.”

Skinner, in a 2021 report to the state Senate Committee on Public Safety, said some cities went as far as destroying records prior to the Jan. 1 effective date “to avoid producing responsive documents.”

At the time, records retention laws gave agencies the right to destroy complaint records that were more than five years old. Among the cities named by Skinner were Downey and Morgan Hill, whose representatives told the Howard Center the records were destroyed according to the cities’ retention schedule.

Skinner introduced her second bill, which became law in 2022, to broaden the types of police transparency records available to the public and to address some of the issues and confusion resulting from her first piece of legislation. The law expanded the categories of public information to include excessive use-of-force cases, as well as unlawful searches and arrests, failures to intervene against other officers who use unreasonable force, and cases in which police officers showed discrimination against certain people based on race, religion, sex or disability.

The law requires agencies to maintain complaints and any related reports or findings for at least five years if the complaints are determined to be unfounded — and at least 15 years if the findings are confirmed. The law also set a 45-day deadline for agencies to produce requested police records.

But current law also states that records don’t need to be released for “pending” or “active” investigations, a provision experts say some agencies use to continually delay disclosure.

More recently, state lawmakers approved a measure that added other obstacles for people seeking records related to police misconduct.

A 2023 law made California’s Commission on Peace Officer Standards and Training exempt from disclosing records related to officers’ personnel files, misconduct records and other investigative materials of decertification cases. The state previously had required the commission to make those records public.

Now through Jan. 1, 2027, the commission is forwarding such requests back to the officer’s department, essentially giving the decision to release records back to the local agencies that could be hurt by the release of any negative information. Civil rights and open government advocates had opposed the measure, arguing it would “deny promised transparency into the decertification process” and “take the state backward with respect to law enforcement transparency.”

When records aren’t specifically made disclosable by the new laws, agencies look to other state laws to determine whether to release officers’ records.

The Public Records Act, California’s body of law that covers the release of government information, gives law enforcement agencies broad latitude to keep records confidential based on their judgment that releasing the information “would constitute an unwarranted invasion of personal privacy.”

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This story was produced by the Howard Center for Investigative Journalism at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication. The Howard Center is an initiative of the Scripps Howard Fund in honor of the late news industry executive and pioneer Roy W. Howard. Contact us at [email protected] or on X (formerly Twitter)@HowardCenterASU.