Is California rolling back public access to police misconduct records?

In September 2021, Gov. Gavin Newsom and Democratic lawmakers touted a package of bills creating a system to decertify law enforcement officers for serious misconduct and increasing transparency of their personnel records — a move aimed at weeding cops with a history of troubling behavior out of law enforcement.

It was hardly revolutionary: California had been one of only five states in the country without a system to revoke the badges of rogue cops.

The new laws came amid shocking revelations of abuses of power at police departments around the state, including the Bay Area. The Antioch Police Department, where eight current and former cops are under investigation for civil rights crimes, made national headlines in April over racially and sexually biased banter among dozens of officers. Statewide, officials expect some 3,500 of California’s 90,000 cops could face decertification for misconduct.

But civil rights advocates say a money-saving budget scheme by the Newsom administration threatens to throttle key transparency provisions — and undermine the highly-touted reforms.

A “trailer bill” that is part of ongoing budget discussions would exempt the state Commission on Peace Officer Standards and Training from having to disclose police misconduct records that the commission, known as POST, reviews to determine an officer’s suitability for the job.

“Please do not take the state backwards with respect to law enforcement transparency,” a coalition of civil rights, open-government and press groups wrote Thursday in a letter to Newsom and state legislative leaders.

The administration’s budget language comes as the state faces a $31.5 billion budget deficit and amid mounting estimates of the number of officers who could be subject to decertification. That has created concern over the costs of decertification proceedings and the public records requests expected to accompany them.

Newsom’s office deferred comment to POST, where Public Information Officer Meagan Poulos said the proposal “does not limit public access to records, it instead channels those requests to the most appropriate agencies” — local law enforcement that compiled the misconduct records on their employees.

Poulous argued that such a shift “continues to ensure public access to police misconduct records in a way that improves efficiencies, reduces duplicative efforts, and saves substantial taxpayer money.” She didn’t say how much money it would save.

At issue is Senate Bill 2, which created a system to investigate and revoke or suspend peace officer certification for serious misconduct, as well as SB 16, which increases transparency over peace officer misconduct records.

Legislative analysts in 2021 said SB 2 would require POST to add more than 200 people to its staff to handle the increased workload at a cost of up to $37 million more each year. Those costs would grow if annual misconduct investigations exceeded 1,200 a year.

In May, POST indicated in a budget request that it anticipated 16,000 misconduct reports a year, 3,500 of which would result in sustained misconduct findings and decertification proceedings — about 4% of the state’s 90,000 officers. POST has received 6,200 misconduct reports since January and asked for an additional $6.1 million in the current budget and $5.3 million a year going forward to handle those proceedings.

POST’s May budget request didn’t mention public records request costs. But Poulos indicated the time and cost of fulfilling records requests — a process that would involve redacting sensitive information from stacks of investigation papers and videos — would be more efficiently borne by the local agencies that submitted the material.

Law enforcement agencies that conduct investigations of their officers and compile such materials have an independent obligation under the law to respond to any California Public Records Act request, Poulos said.

“The proposed change is intended to allow POST to focus on its core work of investigating allegations of misconduct and decertifying individuals who should not be peace officers in California,” she said.

But critics say the proposed change is a betrayal of the law’s language and intent that will frustrate public access to records because local agencies have a history of resisting disclosure about their own officers’ misconduct. Legislative analysts said SB 2 “makes all records related to the revocation of a peace officer’s certification public,” and the bill’s language states that those provisions apply to “records maintained by any state or local agency.”

Carmen-Nicole Cox, director of government affairs for ACLU California Action, said law enforcement agencies that employ troubled officers often resist making records of misconduct available. The California Reporting Project in 2021 found more than 173 police agencies failed to fully respond to requests for disclosable use-of-force records from a coalition of news organizations.

“So the officers and agencies subject to investigation are now going to say, ‘We’re going to produce this’?” Cox asked. “It’s mind-boggling. This is a repeal of the only opportunity the community has had to get these records.”

If an officer had a record of misconduct at multiple law enforcement agencies, those seeking access would have to know which agencies to ask and make separate requests at each.

“That POST should make these records public is not only required, but necessary,” said Cox, arguing POST should provide the records on which it bases its decisions on officer certification.

The showdown is now part of budget negotiations in Sacramento. The offices of SB 2 author Sen. Steven Bradford of Inglewood and SB 16 author Nancy Skinner of Oakland, both Democrats, said a compromise is expected next week.

But Cox said such a substantive change in the law’s records access provisions shouldn’t be made through opaque budget negotiations, but instead through an open legislative process.

“Trailer bill language is supposed to be about implementing the bill,” Cox said, “not changes you’d be embarrassed to move through the legislative process.”