Norberto Santana, Jr.
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Orange County now joins Los Angeles and Contra Costa counties as places where a resident can hold their police agencies accountable by having the right to review select law enforcement misconduct records, thanks to a Thursday afternoon decision by OC Superior Court Judge Nathan Scott.
The Association of Orange County Deputy Sheriffs scrambled into court earlier this month seeking to prevent the release of misconduct records authorized by a recent state law, SB 1421.
Given recent public concerns about police misconduct and cover-ups, a bipartisan coalition of legislators adopted the law to allow select misconduct records – such as use of force, sexual assault on a member of the public or lying while on duty – to be released to anyone submitting a Public Information Request under state law.
Voice of OC led a media coalition including the Los Angeles Times and Southern California Public Radio to oppose efforts by the AOCDS in court seeking to have Orange County exist as one of the only places in California to restrict such public record access rights.
Orange County supervisors stood with the deputies union in fighting disclosure as they ordered their County Counsel, Leon Page, to stand down from his original position and not resist the deputies’ efforts in courts to lock up public records about misconduct.
Supervisor Andrew Do, who received critical independent campaign mailers from AOCDS, was Page’s harshest critic from the board dais, followed by Supervisor’s Chairwoman Lisa Bartlett, for Page’s legal efforts arguing the records were public and should be released as a matter of law. Page also alerted media institutions their rights to records were about to be restricted.
To be clear, if Voice of OC and our media partners had not taken legal action, your rights to see raw documents and truly hold law enforcement accountable would have been severely restricted.
Our lawyers also tell me that Page’s actions saved the County of Orange from being sued by the media coalition.
The AOCDS, along with police unions who took similar court actions in numerous other California counties, argued that the legislature improperly attempted to apply a new transparency standard retroactively with SB 1421 without expressly stating their intent.
They also argued that police have special vested secrecy rights in California that could never be taken away.
Judge Scott disagreed.
“If the Legislature intended to make the records ‘available for public inspection’ –but not if they mentioned anything before 2019, the Legislature would have said so,” Scott wrote in a 10-page opinion that disqualified every argument put forth by the deputies’ union.
“If public agencies could withhold records referring to any pre-2019 conduct, they would have an incentive to shoehorn old facts into them. The California Supreme Court has twice held the Legislature did not intend to give agencies the unilateral ability to manufacture confidentiality,” Scott added.
Scott also ordered that a temporary restraining order he instituted earlier this month be maintained until March 15, allowing the AOCDS to appeal his decision.
However, Scott also ordered AOCDS to post a $50,000 bond in favor of media intervenors before filing such an appeal.
That amount is exactly the same amount that the media coalition’s attorney, Kelly Aviles, estimated in open court regarding current legal costs of the media coalition to fight the deputy union action to restrict public records.
Scott went against every single argument AOCDS made in court.
He wrote that AOCDS couldn’t argue privacy rights for its general members.
Those rights belong to individual officers, Scott wrote.
Finally, Scott wrote that SB 1421 already has many protections for good officers.
“SB 1421 still has many levels of protection against disclosing harmful information. SB 1421 allows agencies to withhold records regarding active investigations or frivolous complaints. (§ 832.7, subd. (b)(7), (8).) It allows agencies to redact personal, medical and financial information. (§ 832.7, subd. (b)(5)(A), (C).) It allows agencies to preserve the anonymity of witnesses and persons filing complaints. (§832.7, subd. (b)(5)(B).) It allows agencies to redact information that poses a danger to an officer or anyone else. (§ 832.7, subd. (b)(5)(D).) And it allows agencies to redact any information if the public interest in withholding it outweighs the public interest in disclosing it. (§ 832.7, subd. (b)(6).)” Scott wrote.
In addition, Scott noted the immense harm in keeping such records secret – the position of the Orange County Board of Supervisors.
“The nature of the harm is easily stated,” Scott wrote.
“Openness in government is essential to the functioning of a democracy. ‘Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and
secrecy in the political process.”‘ (Marken, supra, 202 Cal.App.4th at p. 1261.) In particular, “there is a strong public policy in assessing” how our public servants handle “serious misconduct allegations.” (Caldecott, supra, 243 Cal.App.4th at p. 223.) While it is hard to quantify the competing harms, the Association has the burden to show they tilt toward issuing the injunction. (See O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452,1481.) This, it has failed to do.”
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