Berkeleyside and the American Civil Liberties Union, or ACLU, of Northern California filed a lawsuit against the city of Berkeley Wednesday over the city’s refusal to release police records.
The case rests on a 2018 bill authored by State Sen. Nancy Skinner, D-Berkeley, that amended the California Public Records Act, or CPRA — the law that allows members of the public to request certain undisclosed public sector documents. SB 1421 requires law enforcement agencies to provide access to a variety of records previously kept confidential, including records related to use of firearms and certain sexual assault cases.
“Law enforcement relies on trust with the communities they serve to effectively do their job,” said Skinner in a press release about SB 1421. “When incidents occur the public deserves to know that a thorough investigation has occurred and that police are held accountable.”
Citing SB 1421, the ACLU requested documents from the city of Berkeley reaching back to 1999, filing the CPRA request around Jan. 1 when the law first went into effect. Berkeleyside joined suit and requested the city for available records Jan. 2, according to the lawsuit.
Berkeley city attorney Farimah Brown responded to Berkeleyside on Jan. 18 asserting that the new law does not require disclosure of records predating Jan. 1. The city also responded to the ACLU with the same assertion, saying it did not find any responsive records after searching as far back as 2014.
“The new law doesn’t say that records predating 2019 are exempt from disclosure. The language is clear as can be. If they have records, they need to provide them,” said Michael Risher, the plaintiff’s attorney.
The city of Berkeley later communicated to Berkeleyside that its office “is evaluating the applicability of SB 1421 to records created before January 1, 2019” and said it will notify Berkeleyside no later than Feb. 11 if it has disclosable records, according to the lawsuit.
Berkeleyside and the ACLU are suing the city for its failure to provide requested records, the limitation of its searches to a five-year period rather than the longer period requested in the CPRA request and its failure to comply with CPRA deadlines.
“The California Public Records Act requires a government agency to respond within ten days,” said Risher.
Risher added that by the tenth day the agency can either inform the requester whether there are available records and whether they will disclose or withhold them, or give itself a fourteen-day extension due to unusual circumstances.
According to the lawsuit, the city of Berkeley’s Feb. 11 Berkeleyside notification would be 40 days after Berkeleyside’s initial request, and therefore not in compliance with the CPRA.
“The City of Berkeley will fully comply with SB 1421,” city spokesperson Matthai Chakko said in an email. “However, its implementation is complex, as it introduces a sea change in California law. Compliance requires a thoughtful and methodical approach, and we will strive to do so.”