Law opening police records faces challenge

Some police groups want to limit access to discipline reports

A new state law that opens certain internal police records to the public for the first time in decades is being challenged by a Southern California law enforcement union.

The lawsuit filed by the Los Angeles Police Protective League could have far-reaching statewide implications for the new law that went into effect Jan. 1.

As civil liberties advocates who endorsed the new law prepare for a lengthy legal battle to keep it intact, police departments in multiple cities—including Morgan Hill—have already destroyed some of their older internal and investigation records in recent weeks.

The new law, known as Senate Bill 1421, requires police agencies in California to release internal police investigation records related to shootings or use-of-force incidents involving an officer, or an accusation of misconduct or certain types of crimes against an officer. The records newly opened by the law, which amends the state’s Public Records Act, include certain personnel documents and complaints against officers.

Previously, these police records were considered to be confidential and prohibited from disclosure even in any criminal or civil investigation.

Some police unions and agencies have harshly criticized the new law. The Los Angeles Police Protective League suit is attempting to prevent the City of Los Angeles from disclosing internal city police records from before Jan. 1.

The lawsuit obtained a court order that limits the disclosure requirements of SB1421 to only those records in existence as of Jan. 1, said Jim Ewert, general counsel of the California News Publishers Association. The order only applies to the City of Los Angeles, and the CNPA and other parties are planning to push back against the LA Superior Court interpretation.

Ewert and other SB1421 proponents argue the law applies retroactively to all records in a police agency’s possession, regardless of how old they are. The CNPA, First Amendment Coalition, Los Angeles Times and other parties are preparing a motion to file in response to the LA Superior Court’s ruling. A hearing on that motion is scheduled for Feb. 5.

“Any time the Public Records Act has ever been changed—including the exemption that made these records confidential back in the 1980s—those bills never contained language that specified the change in law applied retroactively,” Ewert said. “Nevertheless, the cops understood it to apply to all records in existence on the effective date. For them to argue now that, without some explicit statement in the bill, it only applies prospectively is a little disingenuous.”

He noted that the language of previous changes to the Public Records Act has never indicated that the changes only apply to a certain time period.

Despite the police union’s challenge in Los Angeles and other resistance to SB1421 from individual law enforcement agencies, the California Police Chiefs Association has been a proponent of the law that expands police transparency. Morgan Hill Police Chief David Swing, who is president of the CPCA, said he “personally” supports applying the new only to actions after Jan. 1, 2019, similar to the position argued by the LA Police Protective League lawsuit.

“However, we as a profession and department will abide by the court’s application,” Swing said.

The CPCA supported the law because it could improve public trust in police, as it allows the public to gain a glimpse of the “time and attention and resources” that investigators put into dealing with officer-involved incidents, Swing said in October.

Ewert said regardless of the outcome of the Feb. 5 hearing in Los Angeles, he expects the losing party to appeal.

In the weeks before the law went into effect, multiple California cities authorized police departments to destroy stacks of old internal and investigative records sitting in storage. These cities’ officials have argued the timing of the record purges so close to the Jan. 1 implementation of SB1421 is merely coincidental, but Ewert is skeptical.

In Morgan Hill, the city council on Dec. 19 adopted an update to its citywide records retention policy, setting defined schedules for when each type of public record can be destroyed.

Under the city’s new policy, the Morgan Hill Police Department will retain records related to officer-involved shootings for two years before they can be destroyed. An existing state law requires police departments to, in most cases, retain some of the documents related to officer-involved shooting investigations for a minimum of five years.

“If the officer is cleared of wrongdoing, the criminal investigation of the officer may be destroyed after two years,” Morgan Hill City Attorney Donald Larkin clarified. “In any officer-involved shooting, there will be a separate administrative investigation. Files from the administrative investigation are kept for five years.”

Larkin said that “because administrative investigations typically involve compelled statements that cannot be used in court, the administrative investigation is kept separately. Reports and evidence from the criminal investigation would be included in the administrative investigation, so even if the separate criminal investigation files are destroyed, the documents and evidence from those files are maintained under the administrative investigation.”

Two officer-involved incidents resulting in injury or death have occurred in South County within the last year. On Feb. 25, 2018, Gilroy resident Stevie Juarez died while he was being restrained and arrested by city police officers. On April 29, a Morgan Hill Police officer accidentally fired his service handgun during an incident response, resulting in injury to a teenage girl.

Both incidents are still under investigation by the Santa Clara County District Attorney’s Office. Records related to those incidents must be retained at least until the investigation is completed, and for at least five years under existing state law.

Police personnel complaints and internal investigation records will be retained for five years in Morgan Hill before they can be destroyed, under the city’s policy update. MHPD case files for certain types of felonies—including murder, capital offenses and child abuse—will be held permanently, according to the Dec. 19 city staff report. Citywide, personnel files for all employees will be retained until each employee’s termination, plus three years.

Swing said the update to the city’s records retention policy was not inspired by SB1421, and that city staff have been working on it for some time. He said the police department has destroyed some records pursuant to the update since Dec. 19.

“The city clerk’s office has worked extensively with the city attorney’s office and police department over the past two years to accomplish a comprehensive update to their sections of the schedule,” reads the Dec. 19 staff report.

Larkin clarified the volume of records destroyed since the council approved the police update: “Approximately eight bankers boxes of documents were destroyed on Dec. 27. In order to save staff resources and costs, they were destroyed by a vendor through incineration. Destroyed documents primarily included background reports for officer candidates (which were not included in the prior retention schedule) and internal investigation reports issued between approximately 1990 through 2013.”

He added that only one investigation report, from 2011, was included in the destroyed documents. This was an allegation of dishonesty involving former MHPD Officer David Ray, who was fired from the local department in relation to an incident in which he illegally deleted a suspect’s photos from her smartphone and repeatedly lied about his actions which led to the internal investigation. The firing resulted in civil legal action in Santa Clara County Superior Court.

“Although it would be subject to destruction under the revised retention policy, a copy of the one disclosable investigation report was retained,” Larkin said of the 2011 MHPD investigation.

In Southern California, the police departments in Long Beach and Inglewood have in recent weeks destroyed mounds of records dating back decades, according to a Jan. 9 report from the LA Times. Officials for both cities denied the record purges had anything to do with SB1421. In Long Beach, officials said the purge was the result of a two-year effort to streamline records retention practices, the LA Times reported.

Ewert said it is “laughable” to claim these records purges have nothing to do with SB1421, adding that it’s “a bit of a mystery as to why they want to do that because there are employees of agencies that have been around more than five years, and why they would want to destroy part of the personnel files that are older than five years is beyond me,” Ewert said of the Long Beach and Inglewood records purges.

He added that the purpose of SB1421 is “not simply to out bad cops.”

“The true purpose behind this is to ensure that agencies are made aware of potential misconduct in a fair and just manner, and when they find misconduct they deal with it appropriately because they are doing it on behalf of the public,” Ewert said.

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