Loopholes in California’s police transparency law leave public in the dark
OAKLAND, Calif. - First Amendment advocates cheered with enthusiasm at the plethora of records that they thought would surely be unearthed and made public when a police transparency bill became law in 2019.
Since then, tens of thousands of records have indeed been opened, exposing one Contra Costa County deputy who lied about drinking and who also didn’t pay his bridge tolls to a Sutter County sheriff’s deputy being fired for allegedly using his position as a law enforcement officer to intimidate women into having sex with him while on duty.
The police transparency law also became the launching pad for the KQED podcast, On Our Watch, which details the fallout of bad police behavior, and The California Reporting Project, where daily journalists have filed hundreds of public records requests with law enforcement agencies in California.
But the law, no matter how groundbreaking, was limited to begin with. And now, five years later, is revealing weaknesses as several agencies are finding ways to keep many of the records from public purview.
"Historically, California was a complete black hole on police transparency compared to other states," said David Loy, legal director at the First Amendment Coalition. "But did the law move the ball forward? Yes. But it still has a long way to go. It's up to maybe a B- from an F."
SB 1421 – and a followup law, SB 16 – mandate the release of a very limited number of police records that fall into roughly six categories. They were both authored by state Sen. Nancy Skinner (D-Berkeley).
The public can only see a police officer’s file if the Internal Affairs department rules that there is a "sustained finding" when an officer was dishonest, committed sexual assault, caused great bodily injury or death, used excessive force, conducted an unlawful search or acted in a racist, homophobic, misogynistic or prejudiced manner.
A "sustained finding" is when an investigating agency determines the officer violated the law or department policy.
Despite the letter of the law, many police departments – and their legal counsels – have figured out ways to sidestep releasing documents by finding loopholes.
KTVU has direct knowledge of these evasions as this news organization has been denied records for a variety of reasons.
One law enforcement source, speaking on the condition of anonymity, said they were told by the agency’s lawyers never to find that an officer had been dishonest, for example, because that would mean the record must become public.
Instead, the law enforcement agent said they were told to rule that the officer made a mistake in a different category, like not following policy, which doesn’t need to be disclosed.
"A problem with the law is that you rely on the agency to act in good faith because they have the records and they determine whether they fit into the law in the first place," said Oakland attorney Sam Ferguson, who has represented journalists in SB 1421 cases. "There’s a lot of discretion within the agency’s decision-making. Many agencies are abusing this discretion and not disclosing things when they should be"
Ferguson added: "It essentially leaves requesters blind because they have no vision of whether those documents are being withheld."
Take for example the 2021 death of Maurice Monk, who was found languishing at Santa Rita Jail before he was found dead and the allegations in a civil lawsuit that the deputies forged documents that they checked on him.
The Alameda County Sheriff’s Office did not release any documents or video pertaining to Monk’s death, telling KTVU that there were no public records to disclose because there were no "applicable sustained findings."
However, an internal sheriff's investigation, which remains private, hints that the deputies were not truthful when they filled out their observation logs, according to a civil lawsuit, and yet there was no Internal Affairs finding of dishonesty.
Alameda County counsel has ignored KTVU’s requests for comment on this issue.
Loy, the First Amendment lawyer, said that often sustained findings are negotiated on appeal down to a lesser finding, which then doesn't fall under the police transparency law either.
Then, there’s the interpretation of certain terms, such as what is great bodily injury?
Police departments have been withholding records because they don’t believe someone was seriously injured, despite evidence that the person went to the hospital or needed medical attention.
Civil rights attorney Izaak Schwaiger said he is representing an 11-year-old boy who was Tasered by the Sonoma County Sheriff’s Department and who now has permanent brain damage.
But the county is refusing to give Schwaiger the video of what happened, without telling him why.
"So, it’s like they get to decide that?" Schwaiger said. "And yes, they do. Cops will come up with any way to claim GBI to throw the book at you. But if someone was taken down by a K-9, they’ll say it wasn’t great bodily injury."
And that’s just one case: Schwaiger said he has plenty more examples from other jurisdictions that have also denied him documents and video because the agency has denied that his clients were injured, despite his evidence to the contrary.
"When I defended criminal cases, DAs would routinely charge whiplash in a DUI crash as GBI (Great Bodily Injury)," Schwaiger said. "Any soft tissue damage, regardless of whether there was an open wound or required a hospital or a chiropractor visit should be a GBI."
In the early days of SB 1421, Schwaiger said it seemed to him as though cities at least attempted to comply with the law.
But as the years go on, he said it seems like the police department’s lawyers are figuring out ways to prevent the release of records.
"They’re making a calculus. How many people denied a request will actually litigate this?" Schwaiger asked. "How many people are going to bring a lawsuit to fight their request being denied?"
Not many journalists or members of the public do sue.
But some do.
And after months of legal argument, both The Oaklandside and the Bay Area News Group won their cases against the Oakland Police Department and San Jose Police Department, respectively.
Both suits were over police departments taking too long to release records.
In Oakland, a settlement between the two parties now requires OPD to clear its backlog of California Public Records Act requests within six months and release all records related to police shootings and misconduct within 15 months, with disclosures on a rolling basis every two weeks.
The judge also ruled in favor of two investigative reporters, Darwin BondGraham and Ali Winston, fighting the police for SB 1421 records by ordering OPD to turn over thousands of documents within six months that the pair requested years ago.
In the Bay Area News Group case, it took two years in court to convince the San Jose Police Department to agree to a settlement requiring the timely release of use-of-force and officer disciplinary records.
SJPD must now produce most of the requested material within 30 days. The settlement also compels San Jose police to retrain officers to document force and widen the category of injury-causing incidents to make more injuries disclosable.
Ferguson and other First Amendment advocates note that the police transparency laws are a "good start" but they wonder why the police get more privacy than any other type of government worker.
"The law has given critical insight into misconduct," Ferguson said, "but it’s not a perfect law by any means. It’s still less than you would get for any other public employee."
ABOUT THIS REPORTING: This story is part of a statewide multi-newsroom collaboration, called the California Government and Accountability Journalists, focused on increasing transparency and accountability in government and police personnel files. Over the next year, a group of government and investigative reporters from newsrooms across the state will be working to expose public harm when agencies and officials withhold records and public information.