California has long led the nation in protecting public access to public information, with one glaring exception that took hold in the late 1970s: Police records have become increasingly off limits. The dubious rationale for blocking disclosure is that it is a private matter — and none of the public’s business — when a police officer fires a weapon, is found to have lied during an investigation or is disciplined for misconduct. Far from being a beacon of transparency, California — when it comes to the public’s ability to assess the performance of its law enforcement agencies — is the nation’s information black hole.
A bill by state Sen. Mark Leno, a Democrat from San Francisco, would restore the disclosure that Californians once considered a basic element of police oversight here, as it still is in many other states. There will no doubt be fierce opposition from officers and their unions to any effort to pare back the special privileges they have won over the last several decades. But Senate Bill 1286 is a wise package of reforms that would help to instill some needed public confidence in police agencies.
Courts would be able to protect records from disclosure on an adequate showing of risk to the officer in question or to another person. And nothing in the bill would do anything, nor should it, to undermine the constitutional protections afforded officers accused of a crime.
Contrary to the claims of some critics, the bill would not gut the Public Safety Officers Procedural Bill of Rights Act, which Gov. Jerry Brown signed into law in 1976. That measure was meant to protect officers from unfair interrogations in much the same way the Constitution protects criminal suspects from being railroaded, although it arguably goes further than it should (for example, by giving officers time to get their stories straight before being required to answer questions). Yet there should be little quarrel with the notion that officers ought to enjoy some reasonable procedural protections.
Nothing in the bill would do anything, nor should it, to undermine the constitutional protections afforded officers accused of a crime.
By contrast, California has been ill-served by a follow-up 1978 statute, passed by the Legislature and signed by Brown in the early years of the tough-on-crime era. This law prohibits police agencies from publicly releasing personnel records, which were deemed to include not just complaints but even findings of misconduct.
Disciplinary records were still accessible in Los Angeles and some other cities when custody of the documents moved outside the agency for appeals and reviews: for example, by a police oversight commission or a civil service commission. But the cutoff became total a decade ago under a ruling by the state Supreme Court in the case of Copley Press Inc. vs. Superior Court.
In the post-Rampart era, when even police chiefs were pressing for more public disclosure and accountability, the Copley ruling pushed information about police practices, discipline and uses of force further out of reach than ever before. It became more difficult for the public to assess how well police agencies identified problem officers and corrected patterns of excess force.
But officers are entrusted by the public with the power to carry weapons and take lives, so the line between actions that deserve “privacy” and those that are very much the public’s business must be drawn with public safety and police accountability in mind.
Besides, officer “privacy” may reasonably be deemed to extend to personal financial matters, family or other information that is not job-related. It strains the definition of the word, however, to allow “privacy” to encompass a performance record of dishonesty or scrutiny of a deadly use of force.