California AG refuses to rule out legal action against public records journalists, in new statements

Parker Higgins

Director of Special Projects

camillefassett

Reporter

Xavier Becerra, March 2016

California Attorney General Xavier Becerra

The California Attorney General has doubled down on legal threats to a pair of journalists who lawfully obtained through a Public Records Act request a list of police officers convicted of crimes. In press conferences on Friday and Monday, California AG Xavier Becerra refused to rule out criminal charges for the journalists, and continued to characterize the relevant law as if it did not contain an explicit exception for reporters.

In an email to Freedom of the Press Foundation, David Snyder, an attorney at the First Amendment Coalition, found fault with Becerra’s Friday comments:


It's either the case that the Attorney General of California is aware that he cannot prosecute journalists for the crime of possessing this information and is suggesting he can just to intimidate those journalists—or that he doesn't know what California law says. I don't find either option very comforting.

Becerra has also pushed back repeatedly on the notion that the Jan. 29 letter contains legal threats. But I don't know how else to read that letter.  When the highest law enforcement officer in the state sends you a letter saying you have records that we can prosecute you criminally for possessing, so please give those records back, he's saying "give those records back or we may charge you with a crime," even if he doesn't expressly say it that way. The problem, of course, is that the AG can't charge journalists with this crime, either under the California statute itself or under the First Amendment.  So why cite the Penal Code section at all?

The two reporters in possession of the document are both affiliated with the UC Berkeley Investigative Reporting Program. The program’s director, John Temple, also expressed disappointment at Becerra’s statements via email with Freedom of the Press Foundation:

We think it's unfortunate that the attorney general of California is taking the position that reporters doing their job is a criminal activity potentially deserving of prosecution. It did not seem that he was fully versed in what we had received in response to public records requests or the state law specifically exempting journalists from prosecution in such cases. At least he did say we didn't do anything wrong in requesting the documents. That's a start.

In particular, Temple objected to Becerra’s argument that reporters Robert Lewis and Jason Paladino may have legally obtained the document at hand, but can no longer legally possess it:

That's not true. The Supreme Court of the United States in a 1989 Florida case answered the question whether a state could impose criminal and civil sanctions on a newspaper for printing lawfully-obtained truthful information found in government records. It said that "where the government itself provides information to the media, it is most appropriate to assume that the government had, but failed to utilize, far more limited means of guarding against dissemination than the extreme step of punishing truthful speech.

Even the attorney general acknowledges the information we received from the government was lawfully obtained. The California Supreme Court crafted a narrow exception for attorney-client privileged documents. But nobody asserts the documents the state sent us fall under that protection. Finally, Mr. Becerra himself has told reporters that "once you disclose a document," even if it's "confidential and private, you can't take it back.”

He also objected to Becerra’s characterization of the Jan. 29 letter as “only a request” and not a threat of legal action:

Mr. Becerra might want to go back and read the letter from his office. It is true that it does use the polite word "request," but he fails to mention what comes after it. Here is what his office wrote: “If 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." How would you read that? I think it's fair to say that reasonable people would conclude that is a threat.

Excerpts of Becerra’s full remarks, made during press conferences and in response to reporters' questions, are included below.

March 1, 2019

Becerra: There’s also a separate issue I’d like to mention as well relating to police records. There’s a false narrative circulating out there about police officer conviction records. Under the Public Records Act I mentioned of a particular organization, records were released from [the Commission on Peace Officer Standards and Training], uh, by POST, to this organization, and my office which is responsible for maintaining the automated criminal history system which contains a lot of these records, is involved because after providing these data to POST at its request, to make determinations about police eligibility qualifications to be hired or retain their service in law enforcement, was a job that we were obligated to do at the request of POST to provide this confidential information.

POST inadvertently, after a Public Records Act request, sent this information to an entity that requested the information under a PRA. That information is, by law, unauthorized for disclosure except for disclosure to those that have a legal right to possess it, as POST has that right. But the entity that received that as a result of the PRA submitted to POST does not by law have a right to possess that information. That database information that we sent to POST contains every Californian’s criminal history including arrest and court proceedings. It includes information about an individual who may have never been convicted of a crime. Simply because you have been arrested does not mean you have been convicted of a crime. And certainly most people would not consider that criminal history to have been arrested, especially if the arrest was not one that was grounded.

I should mention that this database does not only pertain to peace officers, it includes information on all Californians who have had some contact with our criminal justice system, as I mentioned if you might have been arrested. This database is statutorily confidential. POST uses information from this database to ensure peace officers meet our statewide minimum standards to serve as a peace officer.

No where, I want to make this clear, no where have I threatened any individual when it comes to how they should conduct their business, including those in the media and in the press. I have simply asked everyone who is demanding to see the records of thousands of Californians to consider the rule of law and the right of these Californians to their privacy. That is a request, only a request. We have always strived to balance the public’s right to know, here at the Department of Justice, with the need to be transparent and to protect an individual’s right to privacy.

In this particular case of the inadvertent release by POST of confidential information to this entity, information from that database that the Department of Justice possesses 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 all subject to the rule of law. That’s why I’m standing here today answering questions about any and all matters related to the work of the California Department of Justice. For those in journalism that seek to report the truth, we want to be supportive. And this is the truth. Releasing the criminal information of thousands of people across California can affect their families’ well-being, and that’s a big public safety concern. That database could have your criminal history in it, if you were arrested, even if it were an arrest that should have never occurred. It is my job, as Attorney General, to protect you, all Californians, and the rule of law, especially when it comes to privacy.

[...]

Q: Regarding POST data, the letter you sent — stated it was a misdemeanor, threatened legal action...what I understand today is that you’re not happy with all of this but you’re taking that off the table?

Becerra: We sent the letter but never threatened anyone with anything. I can read you the paragraph if you like. What we simply said...we just restated the law. These data are confidential. We happen to get it at the Department of Justice and we compile it. And then some of the agencies, as in this case a state agency like POST, will request the data. POST uses the data to help determine if someone is qualified to serve as a peace officer or to remain as a peace officer.

So they make a request to us, “we need this data”, we go into our database and collect the data and transfer it to them because they are authorized to get it. But under the penal code, only certain entities are authorized to get it. POST sent out the information mistakenly to UC-Berkeley investigative studies program. They made a mistake. What we’ve said to the Investigative Studies Program at UC-Berkeley is: POST made a mistake. They inadvertently sent you data that is confidential about many Californians, many of whom have never served as police officers, many of whom may have been convicted of a crime after they served as a police officer.

Because that information is confidential, by law, it is supposed to be possessed or used only by those authorized to use it. So we informed the Investigative Studies Program at UC-Berkeley that by law they are not supposed to have that. We understand they didn’t do anything wrong in requesting it. That was a legitimate PRA request. The information they got was not proper.

So by law someone who is in possession of information that is unauthorized is supposed to return it or destroy it. And that’s what our letter simply said, or requests. The department hereby formally requests. We didn’t threaten, we requested. And for the reasons  that we discussed about privacy all together, again, you can’t play fast and loose with private confidential information. That a mistake was made… A mistake was made. But because a mistake was made, it doesn’t mean that as a chief law enforcement officer for the state that i don’t inform the entity that they are in possession of confidential information that they are unauthorized to possess or use. And use of that, continued possession or use of that, is chargeable as a misdemeanor. And simply stating the facts...all they have to do is read the penal code, and we cited the penal code for them.

Q: So are you ruling out criminal charges at this point?

Becerra: ...And that’s the part. I mean… here’s the difficulty. And it goes back to question of SB1421 and release of personnel records. If the investigative studies [program] at UC Berkeley release this information, by law, the state (District Attorney or I) will likely have the authority to try to prosecute as a violation of the penal code. Is that going to do any good for the people that lost their privacy? They’ll never get their privacy back.

Q: It sounds like they are intending to do more with that data…?

Becerra: I’ve alerted them to the law. This is a difficult one, because I respect the importance of the free press and the need to have transparency and to give the American public an opportunity to know. I also want to respect people’s privacy and I have an obligation to enforce the law. If innocent people get caught up in this and have their privacy exposed, that would not be right.

But from the get go, the information that the Berkeley program possesses is unauthorized even though they received it without violating any law themselves. The information they possess and may plan to use is unauthorized by law and I don’t know if anyone is going to suggest that a law enforcement officer, whether it’s the DA or me, should not be trying to enforce the law.

March 4, 2019

Becerra: In terms of the issue that's been presented with regard to private information, private data that the Department of Justice retains, uh, and that was provided to POST, which is our state's police training center, so that it could fulfill its responsibilities, and which POST unfortunately inadvertently released as the result of a public records act request, I can simply tell you that we guard Californians' privacy zealously. Because the moment that the agencies of government that are supposed to demand that information, your private information, and guarantee you that we will protect it, the moment that we can't guarantee that is the moment that you're going to stop providing that private, very confidential information, that we need. Whether it's for medical purposes, or whether it's related to criminal activity, or whether it's related to your activities on the internet, we must guarantee Californians that their privacy will be protected when our government requires them to turn over private information.

And so this issue that's before us, is one with—it's unfortunate, because the requesters of this information did not violate any law when they submitted their Public Records Act request. Unfortunately, they got information that by law is not disclosable to them. And so by law, they are in possession of private data that they're not allowed by law to have, and they're not allowed by law to use.

Q: Is there a specific law you're referencing?

Becerra: I'd have to look at the Penal Code section, but we can get you that information.

Q: But it's regarding, you're saying that the records are not disclosable under Public Records—

Becerra: Explicitly. Explicitly. And so, it's a difficult situation. Those who hold this information didn't commit any violation of the law in receiving it. And I think all of us want to zealously protect the First Amendment rights of the press. But at the same time, I'm the chief law enforcement officer of the state. It's my job to enforce the laws. And its my job to protect the privacy of Californians.

There's information that was disclosed inadvertently, by POST, that should not be in the hands of anyone, other than those who are authorized by law to possess it, or to use it, and so that's the dilemma we're in. And I hope all of us act responsibly with the private information of a lot of Californians.

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