California may roll back hard-won transparency measures for officer personnel and disciplinary records.
Five years after a landmark bill reversed three decades of legislation and court decisions that built a wall around internal misconduct records in the Golden State, a proposed bill authored by Democratic assemblywoman Blanca Pacheco – with the backing of the Los Angeles sheriff’s department and much of California’s police and prosecutors’ unions – could wall off all personnel files for officers deemed to be working in an “undercover” capacity.
The bill, AB 1178, would require courts to take into account an officer’s undercover status in determining whether their personnel files could be disclosed to the public. While the bill’s author and supporters say this would not interfere with existing transparency laws, opponents argue that provisions for officer safety are already included in existing laws surrounding public disclosure of personnel records and that the new regulations would provide agencies a loophole to block the release of records.
The proposed rollback on public disclosure is likely to become law, passing through the state assembly last month with only two votes in opposition and clearing the state senate’s public safety committee on 10 June.
The landmark 2018 legislation, SB 1421, opened up records related to police shootings, uses of force that resulted in death or serious injury, and sustained findings of sexual misconduct or dishonesty to public scrutiny. Prior to the law’s passage, California was one of the most restrictive states in the country for police records.
In 2021, SB 1421 was followed by SB 16, which closed several loopholes that law enforcement agencies used to deny open records requests, and added documents pertaining to sustained findings of unreasonable or excessive force, failure to intervene in another officer’s misconduct, biased policing, or unlawful search allegations to the disclosable records
The bills prompted a flood of high-profile media investigations, a state supreme ruling affirming the public’s right to obtain police personnel files and inspired the passage of similar legislation in other states, including in New York. The 2020 protests following the killing of George Floyd prompted further laws opening up police personnel records to public disclosure.
Still, police and sheriff’s departments across the state have continued to battle the release of personnel files.
The US is undergoing a sea change in police oversight since Donald Trump took office, with the US justice department pulling out of several police oversight cases. In Congress, Republican senator Marsha Blackburn introduced a bill this month that would make it illegal to identify Immigration and Customs Enforcement (Ice) officers. On the state level, too, there’s an effort to roll back transparency measures. In Connecticut, a proposed state law would bar entire categories of police files that were made public after the 2020 protests from being released.
The bill’s initial hearing in April laid out a stark divide between its supporters in law enforcement and opposition from civil liberties groups and press organizations seeking to defend their hard fought transparency victory.
Bernie Ojeda, a sergeant with the Los Angeles sheriff’s department, testified that undercover officers needed specified protections because of their high-risk work.
“Undercover officers have lost the most because of what they do, the tactics they employ to bring down the most soulless of criminals. They can never return to a public life as an officer,” Ojeda said. “These officers are often overlooked when release of information is contested in court.”
David Snyder, the executive director of the First Amendment Coalition, stated in his opposition testimony that the law already protects undercover officers. The language of AB 1178, he said, would only serve to confuse judges and muddle the existing requirements for records disclosure. The proposed new law “says the agency shall withhold information where there is a specific, articulable and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer”, he noted. “This allows withholding in circumstances broader than, but potentially including undercover status and broader than, but including specific threats to an officer,” Snyder said.
Shaila Nathu, a staff attorney with the American Civil Liberties Union of Northern California, described AB 1178 in an interview as a “backdoor way of getting increased protection for police records beyond what the courts already require”. The landmark 2018 legislative victory, she said, only provided access to a small portion of law enforcement records. The undefined nature of “undercover” work in the proposed law and agencies’ existing propensity to over-classify records means that the exemption “could be gamed to unwind SB 1421 transparency. “Any attempt to chip away at it is cause for concern”, Nathu said.
AB 1178 will head next to the Senate appropriations committee for a vote, then the full chamber should it pass. No date has been scheduled yet.
Ben Camacho, an independent reporter in Los Angeles who obtained an LAPD roster and headshot database that included undercover officers through an open records request and published it, believes AB 1178 was crafted in direct response to the transparency afforded by California’s new laws.
“The undercover argument is a way to undermine the public’s right to access public information, said Camacho. During his court battle with the city of Los Angeles in its unsuccessful attempt to claw back the LAPD data, the city in its legal argument said the disclosure left undercover officers in danger. “They could not prove these officers were in danger, let alone undercover. In fact, they proved the opposite, including officers who were very prominent on social media and who gave press conferences for the LAPD,” Camacho said.
“The state’s law enforcement lobby is trying to change this law because of the effect that real transparency can have on a police department,” he said.
The author was a co-plaintiff in the litigation that led to California’s supreme court affirming the public’s right to obtain police personnel files