In the months since SB 1421 became law, we have been granted a front-row seat for public officials finding excuses not to release critical documents that should be released under the new law. First, they were fighting whether it should be retroactive (answer: of course it should have been, there is no reason not to make it such).
In case you are not paying attention to the ongoing debate, under the law, certain police records, especially those attached to use-of-force complaints and shootings, now have to be made available through normal public records act (PRA) requests.
But that hasn’t stopped jurisdictions from continuing to fight disclosure. We just ran a story from our San Francisco program about the hurdles that have been put up there.
In the meantime, the city of Davis, which has generally been better and more willing to release records (as they did to us in the Glacier Point tasering) is fighting the release of the Picnic Day records.
With regard to the use of force, new Section 832.7(b) makes records relating to peace officer use of force disclosable under the following circumstances:
(A) A record relating to the report, investigation, or findings of any of the following:
(i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
(ii) An incident in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury.
New Section 832.7 also allows the disclosure of records related to a sustained finding that a peace officer sexually assaulted a member of the public.
Finally, records that can be obtained with a PRA request under SB 1421 are records related to sustained findings of peace officer dishonesty.
There are some key points here – one is that any discharge of firearm or shooting must be disclosed, any use of force that resulted in a great bodily injury or death must be disclosed, but the last two categories for sexual assault or dishonesty require “sustained” findings.
That gets us to the Picnic Day incident. Back in January a group of citizens requested the Picnic Day file and were denied.
The reason the city is denying the request? No sustained finding of dishonesty.
Writes the city in the letter: “[S]upervisor of the specific incident or involved officer(s) in an effort to ensure accuracy.” The finding concerning the press release was that the initial press release issued by DPD following the Picnic Day incident was inaccurate but there was no finding of dishonesty.”
Rather, “the finding was that DPD violated Policy 1.30-A because neither the involved officers nor the immediate supervisor to the incident reviewed the press release prior to it being released to ensure the accuracy of the events pursuant to Policy. Such a finding regarding compliance with the press release policy does not meet the definition of a sustained dishonesty finding under Penal Code section 832. 7(b)(1 )(C).”
Was the police chief just wrong here or was he dishonest about the press release? The city is drawing a very narrow line. But they are willing to have the Independent Police Auditor reevaluated the matter.
An item on the agenda for Tuesday recommends that council, “Direct the City Manager to assign the Independent Police Auditor to investigate the 2017 Picnic Day incident to determine if the facts support a finding that would require the release of records. The Auditor should review the events surrounding the April 24, 2017 press release and statements to the press, the decision not to correct inaccurate public information in a timely manner, and any other official statements related to the criminal investigation.”
Seems like a narrow line to draw, but there is not a lot of guidance here either. Mr. Gennaco told the Vanguard, “Under 1421, investigations are releasable that result in a finding of false statement against an officer. The Picnic Day investigation resulted in a finding that DPD’s media release policy was violated by the Department but no finding of false statement was made against any particular officer. Thus, the investigation is likely not releasable under the statute.”
There is however, an interesting caveat here.
Under PC 832.7 (A)(ii), “An incident in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury.”
What is interesting here is that the penal code language doesn’t specify that the death or great bodily injury has to have been suffered by the individual on the receiving end of the police use of force.
In this case, the officers clearly used force. The finding by the investigation was that that use of force was reasonable. While the defendants in that matter did not suffer major injuries, several of the officers did.
It may be that under the existing law, that might make these records disclosable. The city did not respond to my query about this on Friday.
In any case, the city is taking a tight line, believing that they could be sued by the officers if they release information that is protected under the Peace Officer Bill of Rights. And in this case, they cut their decision pretty narrowly, arguing that they had not had a sustained finding of dishonesty – and it appears that they may not have even considered it, which is why they are going to go back to see if the facts warrant it.
My problem – that is probably too narrow and it adds to city costs for the consultant.
—David M. Greenwald reporting.