‘What is it that they're trying to hide?' Senator asks of police blocking release of personnel files

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As some police departments around the state are busy complying with a new transparency law mandating the release of certain personnel files, others are vigorously fighting to keep them under wraps. 

On Friday, six police unions in Contra Costa County head back to court to convince a judge to keep their files private if they were created before Jan. 1, when the new law, SB 1421, took hold. They are arguing that the law never expressly stated that files created before that date have to be released, even though the senator who wrote the legislation said the intent of the law is clear: Any record that is now deemed public must be disclosed, no matter when it was created.

Interactive map: Who is releasing police personnel files and who is not

Police unions in Antioch, Concord, Martinez, Richmond, Walnut Creek and Antioch, as well as the union for the Contra Costa County Sheriff, say they understand they have to release these files going forward. But they have set up a legal showdown arguing that it’s not fair or lawful to go backwards to unseal records that had previously been private. Police unions in Los Angeles, San Bernardino, Orange and Ventura counties are also trying to stop the retroactivity of the law. 

“Our clients had reason to believe and did believe that these records were confidential and should remain confidential because that was the law," said Pleasant Hill attorney Michael Rains, who is representing the Bay Area unions. 

California’s  “Right to Know” law now mandates the release of three types of personnel files: If there was an internal “sustained finding” that an officer lied or had an inappropriate sexual relationship on the job; and if an officer used force where a person died or suffered great bodily injury. 

The last category is not necessarily an indicator of police misconduct. But the release of information will allow the public to review why force was used and determine whether a fair and impartial analysis was conducted. These records have been sealed for 40 years. 

California Sen. Nancy Skinner (D-Berkeley), who wrote the law, said that the police unions are misinterpreting the Public Records Act, which she said these records fall into. 

“It’s patently absurd,” Skinner said in an interview last week in Sacramento. If a record exists, she explained, then it is disclosable no matter what year they were created. 

Plus, Skinner emphasized: "They're funded by the public. They serve the public. What is it that they're trying to hide from the public?”

Advocates say the release of the records will have real and immediate effects.

Some examples include:

Knowledge is healing: Unless it comes out at trial, the past behaviors of police officers have not been made public. Even then, juries don't always get to hear that information.

 “All this information has been denied to families, which really keeps them in a sick state of pain of not knowing what happened to their loved one,” said Cephus “Uncle Bobby” Johnson, the uncle of Oscar Grant, who was killed by BART police in 2009. “It's just part of the healing process that families can get by knowing."

Johnson said simply learning the officer’s name who pulled the trigger can be healing. Discovering if an officer had a troubled past in the department also provides crucial context, he added. It’s most often the troubled past of the person who is killed that comes under scrutiny. 

“Having the ability to know what kind of police officers work in our community and whether they've been disciplined for wrongful acts in our community is critical to the essence of building the relationship between the community and the police," Johnson said. "We have police officers that have histories, too. And to deny the community that right to understand that history denies us to begin to help the agency to protect us from officers like that."

Holding officers accountable: After the Bay Area News Group and KQED first reported a possible pattern of inappropriate behavior of a Burlingame police officer than had been previously been seals, the San Mateo County District Attorney is now considering filing charges against him. 

Supporters of the law point out that judges, lawyers and doctors all have their disciplinary records available to the public. 

Reviewing the quality of police investigations: The ACLU of Northern California and the Anti Police-Terror Project have filed requests on behalf of eight men killed by police in California, hoping to review the histories of the officers who pulled the triggers and the internal investigations into their deaths. ACLU Attorney Kathleen Guneratne said the public should be able to review these Internal Affairs investigations to see if they were conducted fairly. 

Plus, the Alameda County Public Defender filed public records requests with every police department in the county, seeking personnel files. Public defenders want to see if any officers could be impeached at trial if they were found to have engaged in misconduct on the job. 

Since Jan. 1, 2 Investigates sent out more than two dozen California Public Records requests to agencies in the Bay Area and has been keeping tabs on others filed throughout the state.

First batch of Bay Area police misconduct records released under new transparency law

Many police departments have already complied with the law and have released, or partially released, information. For example, Emeryville released the names of officers involved in deadly shootings and disclosed that the agency fired one officer five years ago for lying about his overly aggressive takedown tactics. “No one here wants a bad cop,” said Capt. Oliver Collins. 

Some departments were quick to release what they had. Rio Vista, a small department in Solano County, released two discs of video and Internal Affairs reports showing that they had fired two officers for fabricating reports and using unnecessary force, first reported by Bay Area News Group and KQED. The department did not charge any fee.

Some departments have quickly determined that they have no sustained findings in any of the categories. Mountain View and Berkeley, for example, said they have not found any officer to have lied or had inappropriate sex during the last five years, drawing criticism from some skeptics like LaDoris Cordell, a retired judge and independent police auditor for San Jose. “They just police themselves,” she said.  “Of course they’re going to say, ‘We did nothing wrong.'"

The majority of departments have asked for more time. Departments in San Jose, Oakland, Palo Alto, San Leandro and the California Highway Patrol have all asked for more time. San Francisco, for example, noted there was such a backlog of requests,  the department needed to invoke a "rare request" to take longer to fill "burdensome and time-consuming" task of releasing information. San Francisco police said they must balance the duty to respond to public records requests with their other duties that "result in keeping the peace and maintaining safety in our communities."  Still, San Francisco police promised to complete the request and give an update later this month.

At least one department is releasing information but is charging a hefty sum so that clerks can redact sensitive information from documents and audio and video. Burlingame is charging $3,258.40 to redact 29 audio and video files stemming from when the department fired Officer David W. Granucci after they found he offered to help a woman charged with DUI if she would have sex with him.

Other departments ranging from Fremont police to the San Diego Sheriff's Office also have noted that voluminous reports and videos cannot simply be released to the public before officials can make sure that witness and innocent bystander identities are protected. This work, they say is costly and painstaking. 

Rains also said that he's afraid the public and the media will simply go on a "fishing expedition" and take what they find out of context. Historically, he said, police have already been rooting out bad cops on their own, it’s just that the public hasn’t been aware of internal disciplinary measures.

 “I think they'll be surprised to see that most police agencies have investigated allegations of this nature very methodically, very objectively,” he said. 

But Skinner countered that claim can be very easily be proven: All police need to do is open up their files for public review. 

“We were asked to basically have a willing suspension of disbelief that all the agencies were holding all their officers accountable and we’re just supposed to just trust that,” she said. “Good public safety requires trust between law enforcement and the communities they serve and when you don't have transparency, it is very hard to have that trust."