California Attorney General Xavier Becerra on Friday didn’t rule out the possibility that his office could take legal action against Berkeley-based journalists who received a secret list of California police officers convicted of crimes.
“Someone who’s in possession of information that is unauthorized is supposed to return it or destroy it,” Becerra said at an unrelated news conference. “I don’t get to ignore the law. The law says that unauthorized possession or use of that type of data is a crime.”
His statements come amid an escalating debate over police transparency and First Amendment rights in California.
Earlier this year, journalists at the Investigative Reporting Program at UC Berkeley and its production arm, Investigative Studios, filed public records requests to a state commission and received a database of thousands of police officers and applicants for law enforcement jobs convicted of crimes in the last decade. The data was released by the California Commission on Peace Officer Standards and Training, known as POST, which determines whether officers and applicants have been convicted of crimes that would disqualify them from serving.
When Becerra’s office learned of the disclosure, it sent the Berkeley reporters a letter warning them that the database was released mistakenly and that it was a crime to publish or even possess the list.
The attorney general has faced a wave of criticism from press rights advocates and others since the reporters first published a story Tuesday in the Bay Area News Group about the convictions list and Becerra’s response.
On Friday, Becerra insisted that he wasn’t threatening the journalists. “We sent the letter, but we never threatened anyone with anything,” he said. “We just restated the law.”
But the letter from Becerra’s office clearly implies that the reporters could face consequences: “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,” the letter states.
The Berkeley-based journalists said Friday that they intend to continue reporting stories based on the database and rejected Becerra’s request to destroy it.
Becerra “wants to paint himself as a friend of the First Amendment,” said John Temple, director of the Investigative Reporting Program. “We obviously disagree with him and think it’s regrettable that an attorney general would make an implied threat, if not a direct threat, to prosecute, without ever speaking to us or really understanding the matter at hand.”
The dispute comes amid a larger court battle over transparency for California police records. A new law that went into effect this year mandated the disclosure of some police misconduct records, but some law enforcement agencies around the state have argued that the statute shouldn’t apply retroactively. The attorney general’s office is currently being sued by an open government group for not releasing its own retroactive records.
Becerra said that the database — which his department compiles — includes information on people who were never convicted of crimes, and suggested that the data becoming public could put innocent Californians’ privacy at risk.
“This is a difficult one, because I respect the importance of a free press and the need to have transparency and to give the American public an opportunity to know,” he said. “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.”
According to the reporters, however, the spreadsheet they received through the records request marks all of the names listed as “convicted.” The reporters also are following basic journalistic practices of confirming the information they reported through court records and by seeking comment from the officers named before publishing anything, Temple said.
Becerra “either doesn’t understand what we received or he’s not well informed about what we received,” Temple said. The attorney general’s office did not immediately respond to a request for clarification Friday.
The statute Becerra’s office cited in its letter also contains an exception for journalists, said David Snyder, a lawyer and the executive director of the First Amendment Coalition.
“The law is quite clear that a reporter or a journalist can’t be charged with the crime they’re citing,” he said. “That’s clear in the statute itself, and it’s clear under the First Amendment.”
Snyder noted that it may be possible under California law for the attorney general’s office to get a court injunction that would require reporters to return and destroy the records. But the idea that reporters could be criminally charged is “just wrong,” he said.
Becerra repeatedly said that the Berkeley-based journalists did not improperly acquire the database. Still, he suggested that publishing the information could lead to legal consequences, and noted that the violation was “chargeable as a misdemeanor.”
“The Berkeley center did nothing wrong in securing the information. What they do next is something different,” Becerra said. “They’ve been alerted to the law, that’s all I can say.”
