When he went back to work on Jan. 2 after the holidays, Bakersfield deputy city attorney Richard Iger had a message in his email dated Jan. 1, 2019 at 12:05 a.m. It was a Public Records Act request from a media organization asking for copies of police misconduct records.
Bakersfield is not alone in getting such requests. Thanks to SB 1421, "The Right to Know Act," any member of the public now has the right to see and/or request certain prior secretive records pertaining to police misconduct.
Iger said the city was obeying the law and complying with all requests it's been getting, among them from the New York Times, the Los Angeles Times, Bay-area media outlets and the American Civil Liberties Union.
Upon further checking with other local law enforcement agencies in Kern County, all said they, too, were complying with PRA requests. Delano, for example, has so far received two requests.
"Delano is handling the request as any other public records request," said Delano City mManager Maribel Reyna. "The city has no concerns and we are complying."
According to Tehachapi Police Chief Kent Kroeger, the city has received four PRA requests so far. "We compile the records requested, submit to our city attorney for review, and upon his approval we release the records with all required/necessary redactions," wrote Kroeger in an email. McFarland City Clerk Claudia Ceja said the city has not received any requests so far, and it will move forward with such requests if and when it gets them.
Kern County Sheriff Donny Youngblood said his office has received several requests and is complying with SB 1421. "If it's within reason, I don't have any major issues with it," said the sheriff.
So far so good.
Then something interesting happened. Last month, the Bakersfield Police Officers Association went to court and filed a lawsuit against BPD Chief Lyle Martin and the city of Bakersfield in an effort to stop the release of any PRA requests for records prior to Jan. 1 of this year. Judge Eric Bradshaw issued a temporary restraining order against the city, which means it put an immediate stop on all such requests. Why did BPOA sue?
"They (BPOA) have an obligation to protect the privacy interests of their members," said Brian Ross, an L.A.-based attorney representing BPOA. "It's our position that retroactive application of SB 1421 such as records concerning conduct that occurred prior to Jan. 1 would infringe on those privacy rights."
According to Ross, the question before the court is whether the law applies retroactively, meaning should police misconduct records prior to Jan. 1 be released? And whether or not that retroactive application would infringe on officers' privacy rights. BPOA's position is that records prior to Jan. 1 should not be released. Not helping matters any is that the law does not specifically say if the records should be made available retroactively.
Hogwash, says the American Civil Liberties Union, which is a co-sponsor of the new law and was present in court when Bradshaw made his tentative ruling. It argues the new law is prospective, not retrospective.
"The key point in time in this is when the records request is made, not necessarily when the police misconduct happened," said ACLU attorney Rekha Arulanantham. "We're talking about really serious things likes shootings, sexual misconduct, dishonesty, investigations and prosecutions of crimes. These are things that members of the public need to know," she said.
Bakersfield Police Officers Association director Ryan Maxwell clarified BPOA doesn't oppose the new law and the union supports it on its merits. Maxwell said the new law was not implemented correctly.
Interesting to note here that no other local law enforcement union in Kern County joined their BPD brethren in trying to stop the release of police records prior to Jan. 1.
"We're staying away from the lawsuit at this point," said Richard Anderson, president of Kern Law Enforcement Association, which represents the rank and file in the Kern County Sheriff's Office, who added there's a multitude of reasons why KLEA is not joining the lawsuit. "On the aspect of dirty cops, I have no time for people who aren't doing their jobs properly and not serving the community in a professional manner," said Anderson.
Kern County Detention Officers Association President Dustin Alkire also said his union would be staying out of the legal fray.
And as long as KLEA or KCDOA file no legal objections to the new law, Kern County will continue to process all PRA requests from the public, said Kern County Deputy Counsel Bryan Alba. In fact, similar lawsuits filed in other cities to stop the release of police records prior to Jan. 1 have failed.
The most recent was a ruling by the 1st District Court of Appeal, which ruled last week against the Walnut Creek Police Officers' Association to keep records created before 2019 out of public view. And that apparently had a direct impact on the suit filed by BPOA because on Friday, the officers association decided it was too risky to proceed. It filed a request to withdraw it.
BPOA attorney Ross cited the appellate court ruling, as well as the fact that if BPOA lost the case it could get hit with the bill to pay attorney fees for the ACLU, which was granted the right to legally intervene in the case.
Deputy city attorney Iger said as soon as the judge approves the dismissal request, the city will resume honoring requests from the public. The way the courts have ruled so far, Alba hinted that sooner or later, all public requests under the new law must be honored.
"If you're reading the tea leaves it's fluid in one direction," he said. "That ship has sailed."