Deanna Paul, The Washington Post
Two California journalists requested and were given data on police officers’ arrests and convictions over the past 10 years. What they found was surprising: domestic abuse, child molestation – even murder. They were given these documents through a public records request, something journalists exercise frequently.
But California Attorney General Xavier Becerra says it was a mistake, and they never should have received it in the first place. Becerra – whose office was responsible for maintaining the information – said the center that distributed it was not authorized to do so. He wants the UC Berkeley Investigative Reporting Program, and its two journalists, to destroy the files and refrain from publishing them. Not doing so, Becerra claimed, would be against the law.
But the Berkeley journalists believe they’re on solid legal footing, and are standing their ground.
A California accrediting body called the Commission on Peace Officer Standards and Training determines which officers are qualified to be hired or retained by state law enforcement. It receives criminal system data from the Department of Justice to assist in setting eligibility standards maintains many agencies’ records for police officers who have been convicted of a crime.
On Dec. 6, UC Berkeley reporter Robert Lewis put in a public records request with the commission for a list of officers convicted of a crime. Lewis said his reporting partner, Jason Paladino, sent in a related request roughly around the same time, too. Soon thereafter, Lewis received an email acknowledging receipt of the request. A few weeks later a second message requested an extension to compile the relevant records.
On Jan. 8, both men received two files containing a spreadsheet with 12,000 names. It included officers and applicants convicted of a crime, but as Lewis said, it also “included current and former peace officers and applicants, and individuals who applied and went through part of the process and then got rejected.”
It’s unclear how or why Becerra’s office became aware of the commission’s accidental disclosure to the journalists. According to Lewis, he tried several times to reach an official from the Attorney General’s Office with questions about the data but was met only with silence.
Three weeks later, when the office had learned what had happened, it sent a letter to Lewis and Paladino, putting them on notice: They had “inadvertently” been given confidential criminal history information and were breaking the law by “possessing” the spreadsheet. The attorney general requested they not publish the data and destroy the document, and said the office could pursue legal action if they chose not to do so.
Lewis told The Post that letter was the “first contact of any substance with DOJ.”
“I was stunned, shocked – all the range of emotions you might have imagined – and continue to be,” he said of receiving a record via a public record request and then feeling threatened with criminal prosecution.
In a news conference Friday, Becerra – who is a Democrat – called the rumors of veiled threats against journalists a “false narrative.”
“I respect the importance of a free press and the need to have transparency and the need to give the American public the right to know,” Becerra said, calling the commission’s Jan. 8 action a “mistake.” “If innocent people get caught up in this, that’s not right.”
The First Amendment protects the right to publish truthful information that was obtained legally by the publisher. The Supreme Court has affirmed that right against countervailing state interests, including protecting the names of rape victims and government officials going through disciplinary proceedings, and even where there has been an inadvertent disclosure by the government, according to Caroline DeCell, staff attorney with the Knight First Amendment Foundation.
The caveat, though, is that the published information must be about a matter of public concern.
“If the information meets that standard, they can’t criminalize its publication,” she said, adding that there’s an interest in keeping certain information private. “There could be a narrow way for the state to argue that it must protect information that doesn’t rise to the level of public concern,” said DeCell.
These events follow what Lewis called a Californian “impenetrable wall of secrecy” surrounding police officer records or misconduct.
“We’re talking about a police officer who was arrested, accused of a crime by another law enforcement agency, formally in a court of law, went through adjudication and at the end of it either took a plea to a crime or was found guilty and convicted,” he said, calling it “baffling.”
Within the spreadsheet Lewis cited “important information to be asked.” For example, he mentioned a San Francisco officer was accused and convicted of accessing confidential records and to help his girlfriend dig up dirt on a tenant. Another was convicted of unauthorized access of information. Lewis said that neither appeared to have been reported in the local media or disclosed in any kind of way.
“San Francisco citizens missed the opportunity to know that there might be a problem and ask for oversight of confidential information,” he explained.
For now, it seems, both sides are at an impasse.
At Friday’s news conference, Becerra made clear that the scenario is “a difficult one.”
“I’m all for investigative journalism, especially in this day and age, in this country, but you can’t play fast and loose with private, confidential information,” he said. The Berkeley Center did nothing wrong in securing the information. “What they do next is something different.”