In late January, New Times received a call from a reporter at the Tribune asking a peculiar question: "Is the Sheriff's Department talking to you?" she queried. "Have you been able to get anything from them?"
"Come to think of it," I responded, "they recently rejected a public records request I filed."
"About a month ago."
"I mean more like in the last two weeks."
That time frame indicated the local daily, apparently, was having trouble getting a word out of the Sheriff's Department ever since printing the results of a statewide Californians Aware study earlier that month. Participants in the exercise walked into law enforcement offices with a stack of requests and graded each department based on the timeliness and legality of their responses. The experiment yielded poor marks across the Central Coast and straight-up flunked the department of Sheriff-Coroner Patrick Hedges, who reportedly didn't take the news too well.
I vaguely recalled the front-page report, which, after a year of hammering away at records in a notoriously good-ol'-boy county, seemed to me something like writing an essay on the ocean being blue.
The daily paper suspected unfair treatment, and a public access lawsuit seemed on the verge of making the scene. At the very least, strong letters were being crafted.
My curiosity piqued, I sifted through a mound of documents on my desk and pulled the only open matter I had dealing with the Sheriff's Department. I wanted to see if I would encounter Hedges' alleged information embargo, too.
On the back of a press release, I had logged a tip from an Animal Services volunteer about a criminal complaint reportedly filed against an Honor Farm trustee. I managed to dial up the department and get a same-day interview with the director of Animal Services. Whatever trouble the Tribune was or wasn't having with the department, it didn't apply to us at least, not this time.
But is the overall situation surprising? Not even slightly.
To withhold public information without reason or by mere whim locally on any level is not only immoral, but illegal. Yet California law enforcement bodies manage to slip by the letter of the law with frightening regularity. Rather than risk litigation by openly denying access, police officials employ avoidance tactics or flout legal authority that simply doesn't exist. Without an expensive court challenge, these methods typically go unchecked.
Public records archives exist to break these dangerous chains of hearsay and, for that very reason, lawmakers began pressing legislation during the Civil Rights era to guarantee their disclosure. California once stood out in front on this issue, but, without vigilant protection of these rights, transparency in the Golden State proves ridiculously eroded. Less than a decade into the 21st century, law enforcement again possesses nearly unilateral control over its records.
In fact, the pieces of code are so insidious that most California snoops can recite them verbatim.
For example, Government Code sections 6254 and 6255 tack on a massive list of exemptions to the California Public Records Act. The non-disclosure caveat applies to almost any documents related to an investigation or an open lawsuit, information collected for employee screening, or application data required to lawfully carry a firearm.
These provisions make it impossible for a member of the public to look into the conduct of a peace officer employed at their local department or check the background of a recent hire. Investigators in more transparent states can actually cross-reference District Attorney declinations defined as situations where prosecutors decided not to act on a criminal complaint with police rosters to find criminal cover-ups. In a practice sometimes called "retread," police departments have been known to offer transfer recommendations to prevent shamed former employees from telling the messy truth.
But even if someone could discover an incident of retread in California, it's unlikely the rest of the file would be available. Any complaints made about a law enforcement department stay out of the public view so long as the books remain open, which can happen indefinitely.
See the problem yet? It gets worse.
For a long time, police misconduct hearings were open to the public and often drew major attention in racially charged urban hotbeds like Los Angeles. A well-cited section of penal code required a department or agency to "establish a procedure to investigate complaints by members of the public" and retain any findings for a period of at least five years. The hearings continue today (perhaps, anyway) but the door closed to the public following a decision late last year by the California Supreme Court.
Ruling in favor of the Berkeley Police Association, the highest appellate in the state overturned the decision of an Alameda County judge to keep meetings of the city's Police Review Commission open. Now members of the fuzz decide among themselves, behind closed doors, whether any alleged impropriety is valid or frivolous. Complaints falling into the latter category are permanently undisclosed and don't even enter the personnel records. This is what we call carte blanche.
Of course, many apologists often the same folk who turn a blind eye to foreign wars of aggression argue that police are entitled to manage their own affairs. I disagree. Once destroyed, trust is a difficult thing to rebuild, and California law enforcement is far from extricating the sins of decades past. Let's not forget this is the state of Tyisha Miller, Rodney King, and Keith Batt. If California cops have the street cred for unconditional trust, God knows where it came from.
It's a sensitive topic, because much of the justification for these disclosure laws hinges on an individual cop's right to privacy. This deserves consideration, but not absolute dismissal of the mechanism designed to enforce accountability. Police should expect to surrender some rights when assuming the power of deadly force.
For civil liberties to prevail, a member of the public must maintain the right to walk into a law enforcement office with the name of a dubious cop, flip up the aviators, and ask for license and registration.
Staff Writer Patrick M. Klemz can be reached at firstname.lastname@example.org.