California Attorney General threatens reporters with legal action over public record

California Attorney General Xavier Becerra’s office and the Commission on Peace Officer Standards and Training, or POST, sent letters to two Berkeley-based reporters threatening them with legal action — including criminal charges — if they did not destroy a document obtained through a public records request.

Reporters Jason Paladino and Robert Lewis, both affiliated with UC Berkeley’s Investigative Reporting Program, received a list on Jan. 8, 2019, in response to California Public Records Act requests to POST, filed December 2018. The list included 12,000 names of current and former California police officers, as well as police applicants, who were convicted of crimes.

On Jan. 29, Becerra’s office and POST sent Paladino and Lewis very similar letters only hours apart. The letters said the list they received was “confidential” and disclosed “inadvertently”. It also stated that the possession of the spreadsheet was a misdemeanor, and demanded that the records be destroyed.

“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,” reads the letter from Becerra’s office.

Both Lewis and Paladino confirmed to Freedom of the Press Foundation that they have no intention of destroying the list.

David Snyder, an attorney at the First Amendment Coalition, noted the presence of two distinct legal threats in the letter: criminal charges for possessing the list, and a court order, such as an injunction, to prevent publication of it.

“As for the first, which says that it’s a misdemeanor to possess the list, the Supreme Court has made clear that if a journalist or anyone else lawfully receives information, they are protected from civil liability for publishing it,” Snyder said.

In a statement provided to Freedom of the Press Foundation, a spokesperson for the California Department of Justice repeated that the information Paladino and Lewis obtained is confidential and was released only inadvertently.

“It’s not like someone clicked ‘send’ on the wrong thing! They did that the first time!” Paladino told Freedom of the Press Foundation, noting that POST released an unrelated document to the reporters before correcting the mistake and sending the responsive record.

Paladino and Lewis have not published the list itself, though a report in the East Times Bay about the legal threat used several examples of California police officers convicted of crimes.

“Part of the reason we haven’t published is to do due diligence,” Lewis said.

Freedom of the Press Foundation followed up with the attorney general’s office to clarify whether it recognized any of the serious First Amendment concerns with the letter, and received a statement through a spokesperson from Attorney General Becerra. His response included no reference to the First Amendment:

“We always strive to balance the public’s right to know, the need to be transparent and an individual’s right to privacy. In this case, information from a database that’s required by law to be confidential was released erroneously, jeopardizing personal data of individuals across our state. No one wants to shield criminal behavior; we’re subject to the rule of law.”