The San Francisco Police Commission on Wednesday night unanimously passed a tentative version of the city’s protocol for releasing police misconduct files under a statewide transparency law — a move that may ease confusion and speed up the dissemination of the previously confidential records.
The vote by the seven-member commission, which sets policy for the San Francisco Police Department, came 11 months after the law went into effect on Jan. 1, 2019. The law, known as SB 1421, allows the public to request any files that relate to any California police officer convicted administratively of dishonesty or sexual misconduct, as well as records involving serious or deadly use-of-force incidents.
Much of the policy went unquestioned by the commission, save one small paragraph that would seemingly allow the oversight body to do what it has never done before: continue an investigation into an officer’s alleged misconduct, even after an officer decides to resign.
“I’ve always been in favor of this,” said Commissioner John Hamasaki. “It’s always seemed troubling that, by resigning, an individual deprives us of our ability to investigate disciplinary or criminal conduct that’s occurred under the color of the law.”
The language in the misconduct records protocol — affirmed by the late deputy city attorney Buck Delventhal, who died in October — may have unlocked power the commission never knew it had, and close a loophole that persisted long before the misconduct records law had come into existence: officers dodging a black mark on their record by simply resigning, undisciplined.
“We oftentimes see, a lot of the times here in the commission, charges are brought up against an officer, and the officer resigns prior to the final adjudication — and we see that a lot,” Commissioner Cindy Elias said.
Commission Vice President Damali Taylor was more cautious. “If we pursue a finding against an officer who resigned, I want to make sure we’re on solid ground,” she said. “It would be nice to have more than Buck [Delventhal] — who is obviously wonderful, and I respect him — but more than that for our ability to move forward.”
But Deputy City Attorney Alicia Cabrera said that the opinion was that of the entire City Attorney’s office. The commission asked for a memo from the office to clear up the confusion.
Public Records Madness
Since SB 1421 became the law of the land in January, an avalanche of requests from media outlets, legal entities and ordinary citizens befell city departments in possession of the records: the SFPD, the Department of Police Accountability and the Police Commission. They did not adopt proactive measures to deal with the law, even as the bill was primed for then-Gov. Jerry Brown’s signature in September 2018.
Some of the records requests were broad and labor-intensive: Some asked for a review of all applicable files for each of the 2,300-odd current SFPD officers. On Wednesday night, Department of Police Accountability officials said the San Francisco Examiner has asked for available records of every officer ever employed in the department’s 171-year history. The California Reporting Project, a coalition of statewide news organizations — of which Mission Local is a member — also made a sweeping records request. As did the San Francisco Public Defender’s Office.
The police department and its DPA watchdog said that this flood of requests has sown mild chaos in the understaffed departments, which have been far out of compliance with the California Public Records Act. The law allows a maximum 24-day window to disclose when the records will be produced.
But requesting organizations are frustrated, and argue that the law is the law.
“At this rate, at the end of 2025, [the SFPD] will be at only 36 percent compliance,” said deputy public defender Danielle Harris, who argued to the police commission Wednesday night that the SFPD has fulfilled a mere 5 percent of her office’s request for records on all 2,300 SFPD members.
The DPA, she said, has disclosed 14 percent of the records her office has requested — and, at the present rate, would also fulfill the Public Defender’s requests by 2025. “My wish is that there be soul-searching in each department to reallocate staff,” Harris said. “What can be reallocated over the next year, so we’re not having this conversation year after year?”
For months, members of the Public Defender’s office has accused the SFPD and its watchdog agency, the Department of Police Accountability, of “stonewalling” on providing records the defense attorneys may need in court for active cases. (A provision in the new protocol gives the Public Defender priority for active cases.)
But the DPA and the SFPD both say that, given their resources, the voluminous requests have been more than they could handle. “There is more demand than we have people,” Chief Bill Scott said, exasperated.
Currently, the SFPD has two staffers working on the requests, according to Lt. Kathryn Waaland, the officer in charge of the department’s legal division. Scott said that that number will grow to 11 in the coming months. “You’ll see a drastic improvement when we get these people online,” he said.
The SFPD says it has closed 36 of a total of 114 SB 1421 requests, with some requests requiring reviews of tens of thousands of pages.
Responding to Harris, the deputy public defender, DPA lawyer Diana Rosenstein said: “There’s a fundamental misunderstanding of what we as attorneys do at the DPA. We weren’t sitting around waiting for SB 1421 to be enacted — we actually had jobs.”
Rosenstein explained that the process of fulfilling a request can require as many as 15 steps — including locating the files, reviewing them for relevant material, and making redactions. She said that, to date, the agency has disclosed 14 files totaling more than 15,000 pages. DPA attorneys have reviewed nearly 2,000 files totaling an unknown number of pages.
“So this is not an easy task for DPA,” Rosenstein said.
The policy will now head into the so-called “meet-and-confer” process, in which the San Francisco Police Officers Association will get to have its say with the commissioners behind closed doors. When that process is completed — and the timeline is unclear — the commission will make a final vote.
But the union, which represents most rank-and-file SFPD officers, may not make it easy. Like many law enforcement unions across the state, it filed a lawsuit in March in an attempt to block the department’s release of the records, which it dropped a month later.
Commissioner Hamasaki cautioned against drawn-out negotiations with the union, as has been the case with past policies. “Just so this isn’t one of our multi-yearlong engagements,” he said. The policy “seems very unoffensive.”