In a brewing First Amendment fight, California’s Attorney General threatens journalists for possessing a public records document
Camille Fassett
February 28, 2019
The California Attorney General’s office is threatening reporters with legal action merely for possessing a list of the state’s law enforcement officers that have been convicted of crimes — obtained through a public records request.
In a Jan. 29 letter to journalists Jason Paladino and Robert Lewis, California Attorney General Xavier Becerra’s office called possession of the list a crime.
“You are hereby on notice that the unauthorized receipt or possession of a record from the Department's ACHS or information obtained from such a record is a misdemeanor. (Pen. Code § 11143.),” reads the letter from Becerra’s office.
The letter demanded that the reporters destroy the list and refrain from disseminating it, and threatened that “[i]f you do not intend to comply with our request, the Department can take legal action to ensure that the spreadsheets are properly deleted and not disseminated.”
Lewis and Paladino both said that they will not comply with the order to destroy the record.
Lewis was doing some reporting on police that had been arrested, and became interested in which agencies might have records that could illuminate how frequently this happens. Around the same time, Paladino sought data that would shed light on when police officers were disqualified from their positions due to being convicted of crimes.
The reporters — both affiliated with UC Berkeley’s Investigative Reporting Program (IRP) — filed similar requests under California’s public records law in December with the Commission on Peace Officer Standards and Training (POST).
“In January, I got an email that said, ‘Here are the records,’” said Lewis. “But they sent us something we didn’t ask for — it was some sort of redacted training program, completely unrelated to the request. I reached back out and said that they sent the wrong thing, and they said, ‘Sorry, here is the correct document.’”
Lewis and Paladino received a list that included 12,000 names of current and former California police officers, as well as police applicants, that were convicted of crimes. In their report about the list and Becerra’s legal threats for the East Bay Times, they noted that the list included Greg Jeong — who was convicted of impersonating a police officer after failing a police field training program — and Hayward police officer Joshua Cannon, who was convicted of driving under the influence and remains on the force.
While Becerra’s office and POST both sent letters to Lewis and Paladino claiming that the record was released “inadvertently,” it was only disclosed after much back and forth between POST and the reporters.
“It’s not like someone clicked ‘send’ on the wrong thing! They did that the first time!” said Paladino, referring to POST initially emailing the reporters an unrelated record.
“As a reporter, I had the Marine Corps once give me documents that were not fully redacted involving a crash that happened. They weren’t sending me intimidating legal letters; they called me and said they messed up, and asked me not to make protected information public, like people’s names.”
In contrast, Becerra’s office has chosen to respond by threatening reporters with an injunction and even criminal charges.
David Snyder, an attorney at the First Amendment Coalition, said he had never heard of a case like this, and told Freedom of the Press Foundation that two aspects of Becerra’s legal threat are highly unusual:
“One is the somewhat veiled threat to criminally prosecute them for mere possession of this data. And the second is the less veiled threat to get a court order — an injunction — to prevent publication of it,” Snyder said. “As for the first, which says that it’s a misdemeanor to possess the list, the Supreme Court has made clear that if a journalist or anyone else lawfully receives information, they are protected from civil liability for publishing it. And the threat to bring criminal charges is totally groundless under the First Amendment,” he continued.
Snyder also noted that “the California statute that is cited in the letter specifically carves out journalists — that statute that they rely on, consistent with the First Amendment, says you can’t charge journalists with this kind of activity.”
Courts have generally held that prior restraint that come in the form of a court order prohibiting publishing is an unconstitutional violation of the First Amendment. Cases in both the federal Supreme Court and California Supreme Court indicate any prosecution here would also be unconstitutional.
In a statement provided to Freedom of the Press Foundation on Wednesday, a spokesman for the California Department of Justice doubled down on the contention that the journalists are breaking the law:
“The UC Berkeley Investigative Reporting Program is not an entity permitted to possess or use this confidential data. The UC Berkeley Investigative Reporting Program chose to publish the confidential information of Californians despite being alerted by the Department of Justice that doing so was prohibited by law.”
But as Paladino noted, the list is, fundamentally public information. “It’s just convictions, not arrests,” he said. “Maybe there could be more of a privacy concern if they weren’t convictions. But anyone can walk into a courthouse, search the name of a cop, and see what's on the record. It’s summarized public information.”
And besides the three examples of police officer convictions noted in the East Bay Times report, the list has not been published at all in any broad sense.
“Part of the reason we haven’t published is to do due diligence,” Lewis said. “I’ve been a reporter for a number of years, and I’ve done some pretty tough stories, but this is the first time I’ve ever been threatened by a top law enforcement official in this way. It was pretty stunning to be, and it continues to be.”
When Freedom of the Press Foundation followed up with the AG’s office to clarify whether they recognize any of the serious First Amendment concerns with their letter, a spokesperson passed along a statement from Attorney General Becerra himself:
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“We always strive to balance the public’s right to know, the need to be transparent and an individual’s right to privacy. In this case, information from a database that’s required by law to be confidential was released erroneously, jeopardizing personal data of individuals across our state. No one wants to shield criminal behavior; we’re subject to the rule of law.”
His response included no reference to the First Amendment.