By Lauren Bradley and Marshall Hammons
It has been seven months since January when Senate Bill 1421 was enacted as California Penal Code section 832.7. For the past several weeks this summer, the San Francisco Public Defender’s Office has attended police commission meetings every Wednesday to speak about the slow response they’ve experienced with regard to the release of police records pursuant to requests under the new law.
After asserting themselves into the mix and starting an ongoing discussion about compliance with the law, the public defender’s office was invited by the police commission to a working group on draft protocols for responding to section 832.7 requests for police records.
On July 10, 2019, the working group gathered in the multi-purpose room at police headquarters. Each group present was allowed one representative to speak for them and to sit at the table. The representative for the public defender’s office, Deputy Public Defender Brian Cox, was seated at the table with various SFPD officers and non-sworn civilians flanking him. The SFPD’s Chief of Staff, Information Technology, Behavioral Sciences, Legal Division, and many other unit representatives from various departments had a seat at the table. The Police Officer’s Association (POA), the Department of Police Accountability (DPA), the ACLU, and reporters from the Chronicle and the Examiner were also at the table. Additional officers, attorneys, reporters, and members of the public sat behind their respective representatives.
The purpose of the meeting, as stated in the beginning by Commissioner Mazzuco and President Hirsch, was that there had been good feedback at recent police commission meetings, but there were also accusations which made the police commission, SFPD, and DPA uncomfortable. Presumably, they were referring to comments made by the public defender’s office at those meetings.
Soon after, the slow and difficult process of going page by page began. The legal and factual disagreements quickly developed. On the second page of the proposal, Deputy Public Defender Brian Cox pointed out that, while one of the examples listed was correct, several of the other exceptions to disclosure were not grounded in any actual laws.
President Hirsch stated the commission drafted the policy with the help of the city attorney’s office. The city attorney’s office lawyer responded that her office had answered questions posed by various drafters of the policy during their drafting process.
When asked directly about why these uncited and unfounded examples were included in the draft protocols for section 832.7 public record disclosures, the city attorney’s lawyer stated that such an answer was protected by attorney-client privilege. President Hirsch, her own client, said such a response was unhelpful.
This highly controversial policy is under what the police commission and SFPD have been making their disclosures. Members of the commission’s administrative staff noted that some questions had already arisen during the review of records for disclosure and that these examples were to provide guidance in similar situations. The city attorney’s lawyer denied proposing these additions to the protocol, and the commissioners who drafted the original protocol stated that these additions had been made later.
Another dispute arose over whether the statute covered disclosure of off-duty conduct. The POA representative, along with Officer Moser and Officer Walsh of SFPD, all took issue with the draft protocol’s position that the statute does cover off-duty conduct. The ACLU representative accurately responded that the plain language of the statute most certainly includes at least some off-duty conduct, but clarified that certain hypotheticals provided in the working group discussion were not covered by the statute.
After several tense minutes of back-and-forth, the commissioners stated that this is a difficult issue, and a brief should be written by the parties interested in this section. The working group then moved on to discuss officer-involved shootings.
After some back-and-forth, little progress had been made. The commissioners asked the DPA, the SFPD, the public defender’s office, and the ACLU to provide briefs covering all of the issues they noticed in the policy. After 191 days since the bill’s passage, and over a month since going to the commission and asking for a resolution, information and the different interpretations are only now being sought.
The meeting did not end there, though, as SFPD and DPA went on to explain why the release is taking so long. The DPA made statements that they have few people working on this, and the amount of records, where they are stored, and how an attorney would have to go about reviewing the files, takes so much time that they are backlogged. SFPD said their problem was similar; the volume of records and the lack of an efficient case management system designed to track the disclosable records has made their process difficult.
SFPD disclosed that they had been working in no particular order, only that in which the requests came in. The “happenstance” of releasing only the records of retired or terminated officers was explained as being because those particular files were easy to evaluate and disclose.
The DPA and SFPD made it clear that they, with all of the money, time, and effort they have put into complying with the law, are doing their best. So far, only 14 records have been released.