Code 3 is a monthly column by Jim Newton, a veteran journalist who has covered police accountability issues for the Los Angeles Times and Blueprint magazine for more than 25 years. His column appears in this space and on the Blueprint website, blueprint.ucla.edu. He may be reached at firstname.lastname@example.org.
This month’s column: January 2019
Note: A version of this column appeared in the Los Angeles Times on Tuesday, January 29, 2019
By Jim Newton
There always will be rare instances where records related to allegations of police misconduct will need to be withheld from the public. There are cases, for instance, where revealing those records might compromise important criminal investigations, or where the identities of police informants might be disclosed, causing them danger.
That’s why public records laws have exemptions – to address those unusual circumstances that violate what is otherwise the norm: that all records and meetings of public agencies, those supported by taxpayers and charged with performing the public’s work, should be available to any member of the public.
What is emphatically not justified are blanket provisions that withhold whole classes of records, just because a group of public employees would prefer not to be accountable. And that’s precisely what police unions are attempting to secure for officers in response to a new California that they don’t like.
As the California Legislature was winding down its session last year, the Assembly and Senate both passed SB 1421, which for the first time made clear that records of police shootings and other uses of force that resulted in serious injury were matters of public record. It also opened up records of cases where officers were investigated for dishonesty or sexual assault.
But not all records and not all the time. Importantly, the bill included exemptions to protect some arguably private information regarding those officers – personal phone numbers, names of family members and the like. It also specifically exempted information that might compromise informants and authorized delaying the release of any information regarding ongoing investigations. The bill even allows for records to be redacted, when in the opinion of a judge and “on the facts of the particular case, the public interest served by nondisclosure clearly outweighs the public interest served by disclosure.”
In short, the law created a general presumption of openness, while specifically recognizing that individual cases may fall outside it. That is a sensible balance between the public’s right to examine its police and the recognition that sometimes other rights come into play, too.
Although those exemptions were carved out in deference to the privacy interests of police officers, the resulting compromise nevertheless agitated California’s police unions, which unsuccessfully lobbied against the bill and then unsuccessfully tried to get Gov. Jerry Brown to veto it. They tried, but lost – a rare setback for a lobby used to getting its way in Sacramento.
Having failed to win on the merits, those unions now are trying a novel – and intellectually dishonest – end run to get back what they lost with two branches of government by trying to snooker the third. In court cases up and down California, lawyers for police unions are maintaining that the law only applies to new records created after the law took effect, not to existing ones. If successful, that argument would mean that almost no records already in possession of California’s police agencies would be affected.
Imagine, for a moment, that the logic of the police union challenge was applied to other laws that create open government in California or elsewhere. The Freedom of Information Act was first passed in 1966 and then substantially strengthened after Watergate led to Richard Nixon’s resignation in 1974. FOIA allows any American to request information being held by his government, and FOIA requests have allowed historians to examine the nation’s history with new insights into old decisions. I used FOIA to review the FBI’s monitoring of Earl Warren, governor of California and later chief justice of the United States, as well as to explore previously classified decisions of the Eisenhower Administration and to look at the FBI’s monitoring of alleged subversives at Dartmouth College.
Other scholars and historians have examined old tax records, histories of environmentally sensitive areas and the work of agencies from the Justice Department to the Park Service. FOIA has allowed for important histories of civil rights, the Vietnam War, Ronald Reagan, John Lennon, civil disobedience, government surveillance and many other eras and events. Those records were created before FOIA, and were released to historians and others after the law’s enactment.
The unions contesting SB 1421 like to say that they are contesting whether the act can be “retroactive,” but that’s a deliberate misuse of that term. No one is suggesting writing new laws for police conduct and then retroactively examining that conduct: If an officer used force on a suspect last year and authorities elected not to charge him, this statute won’t affect that one bit. It will only affect what the public knows about the actions of the officer and those who judged him, based on records already in an agency’s possession.
Kelly Aviles, a lawyer who represents news organizations, is a determined and effective advocate for public openness, and she’s played a leading role in fighting off this ill-advised union effort. SB 1421, she said last week, was not about securing some right in the future. It was specifically “intended to remedy the lack of access to police records now.”
To make matters even worse, some cities have anticipated SB 1421’s debut by destroying old records, at least implicitly acknowledging that the law reaches material already in their possession, but thwarting the public’s right to get at it. Which raises a significant question about those city governments: Exactly who do they represent when they destroy public records? How is it in the interests of their residents, as opposed to the union representing their police, to have documentation of possible police abuse shredded? Such records may well result in lawsuits against police departments, but how about the price paid by a city government that deliberately protects wayward officers from accountability?
There are close calls in the area of accountability, and all sides should be wary of absolutes. That’s why intelligent laws in this area attempt to anticipate issues and allow for individual exemptions when the facts warrant it. Blanket attempts to shield records – and deliberate misreading of a law’s purpose – do not fit the definition of “individual exemptions.” They are an effort to change law and history to suit only one purpose: the protection of officers and unions with something to hide.