SAN JOSE — Ending a two-year standoff, the San Jose Police Department has committed to the timely release of use-of-force and officer disciplinary records in a legal settlement with the Bay Area News Group, after once asserting that it would take up to four years to fulfill requests for such records under a landmark 2018 police-transparency law.
The settlement between this news organization and the city of San Jose is headlined by a commitment to produce most of the requested material within 30 days going forward. It will also compel the Police Department to retrain officers on documenting force and deepen its evaluation of injury-causing incidents, with the aim of widening what qualifies as disclosable.
“The people’s oversight of government is critical to our democracy, and local news organizations have a duty to ensure public officials are held accountable to the public they serve,” said Frank Pine, executive editor of the Bay Area News Group. “While it’s unfortunate that we had to sue the city of San Jose over the timely release of public records, we’re glad the city has opted to settle the matter and agreed to disclose documents more expeditiously in the future.”
Since the transparency legislation, SB 1421, became law, the news group has taken a lead role in battling police departments and law-enforcement unions to comply with its disclosure requirements. Along with other members of a local media coalition, it sued law-enforcement agencies in Contra Costa County, winning an appellate court ruling that clarified departments must provide records of all incidents and not just those occurring after the effective date of the law. Still, agencies around the state have dragged their feet in disclosing, and SJPD has been among the more resistant.
San Jose Mayor Sam Liccardo was among those incensed by the lag in SJPD’s compliance and the initial 2023 completion date given to this news organization for four years’ worth of records. But he also said he was mindful of staffing and other additional resources needed to pore through years of records and review body-camera footage.
“I’m grateful that cooler heads prevailed and we could all reach a resolution that would ensure that the public’s right to know would not be compromised,” Liccardo said.
“We faced a situation in which both sides were right. The media appropriately wanted access to ensure transparency and accountability of decision making around police discipline, and cities are hamstrung by state laws relating to privacy and HR that constrain our every move and subject us to very costly litigation whenever too much is disclosed.”
Besides faster turnaround for records disclosures, the city agreed to change the force-reporting form used by officers to “identify more types of injuries,” with an eye toward disclosing details of “all injuries identified as ‘serious/significant.'”
That component came from reviews of police records by this news organization that found varying thresholds for a serious injury. Head injuries and broken teeth, for example, usually compelled disclosures, but some hospitalizations of arrested people apparently did not meet the Police Department’s standard. Records that have been disclosed have shown discipline is rarely meted out to officers for serious force.
Additionally, the settlement increases what the city and department must demonstrate to claim an investigative exemption for disclosures. Initially, the department sought to exempt dozens of cases, some more than a decade old, by citing ongoing legal processes.
The city also agreed to pay the bulk of the Bay Area News Group’s attorney fees for the lawsuit, which was filed this past summer.
SB 1421, authored by Berkeley-based State Sen. Nancy Skinner, went into effect in January 2019 and compelled agencies to release previously protected personnel records involving police officers who used deadly force or inflicted serious injuries on the job, or were proven to have committed on-duty sexual assault or dishonesty.
Skinner is now seeking to require additional police disclosure through Senate Bill 16, including more types of officer misconduct and narrowing the exceptions for nondisclosure, while creating civil penalties for continued defiance of the law.
Tenaya Rodewald, an attorney for the Bay Area News Group, said the San Jose settlement reinforces a vital public need to unspool 40 years of “excessive secrecy about law enforcement” in California.
“People clearly need this type of information to understand what happened in particular instances of use of force or misconduct, and determine if the officers and department acted appropriately,” Rodewald said. “But the information is also critical to determining patterns in uses of force and misconduct, and figuring out how to implement broader reforms in policing.”
