But the Berkeley journalists say they’re on solid legal footing and are standing their ground.
The Commission on Peace Officer Standards and Training, a California accrediting body, determines which officers are qualified to be hired or retained by state law enforcement. It receives criminal system data from the Justice Department to assist in setting eligibility standards and maintains many agencies’ records for police officers who have been convicted of a crime.
On Dec. 6, reporter Robert Lewis put in a public records request with the commission for a list of officers convicted of a crime. Lewis said his reporting partner, Jason Paladino, sent in a related request roughly around the same time. Soon thereafter, Lewis received an email acknowledging receipt of the request. A few weeks later, a second message requested an extension to compile the relevant records.
On Jan. 8, both men received two files containing a spreadsheet with 12,000 names. It included officers and applicants convicted of a crime, but as Lewis said, it also “included current and former peace officers and applicants, and individuals who applied and went through part of the process and then got rejected.”
It’s unclear how or why Becerra’s office became aware of the commission’s accidental disclosure to the journalists. According to Lewis, he tried several times to reach an official from the attorney general’s office with questions about the data but was met only with silence.
Three weeks later, when the office had learned what had happened, it sent a letter to Lewis and Paladino, putting them on notice: They had “inadvertently” been given confidential criminal history information and were breaking the law by “possessing” the spreadsheet. The attorney general requested that they refrain from publishing the data and destroy the document. He said the office could pursue legal action if they chose not to follow the requests.
Lewis told The Washington Post that letter was the “first contact of any substance with DOJ.”
“I was stunned, shocked — all the range of emotions you might have imagined — and continue to be,” he said of receiving the record and then feeling threatened with criminal prosecution.
In a news conference Friday, Becerra — who is a Democrat — called the rumors of veiled threats against journalists a “false narrative.”
“I respect the importance of a free press and the need to have transparency and the need to give the American public the right to know,” Becerra said, calling the commission’s Jan. 8 action a “mistake.” “If innocent people get caught up in this, that’s not right.”
The First Amendment protects the right to publish truthful information that was obtained legally by the publisher. The Supreme Court has affirmed that right against countervailing state interests, including protecting the names of rape victims and government officials going through disciplinary proceedings. It has even affirmed that right when there has been an inadvertent disclosure by the government, according to Caroline DeCell, staff attorney with the Knight First Amendment Institute.
The caveat, though, is that the published information must be about a matter of public concern.
“If the information meets that standard, they can’t criminalize its publication,” she said, adding that there’s an interest in keeping certain information private. “There could be a narrow way for the state to argue that it must protect information that doesn’t rise to the level of public concern."
These events follow what Lewis called a “impenetrable wall of secrecy” in California that surrounds police officer records or misconduct.
“We’re talking about a police officer who was arrested, accused of a crime by another law enforcement agency, formally in a court of law, went through adjudication and, at the end of it, either took a plea to a crime or was found guilty and convicted,” he said, calling it “baffling.”
Within the spreadsheet is “important information to be asked,” Lewis said. For example, he mentioned a San Francisco officer was accused and convicted of accessing confidential records to help his girlfriend dig up dirt on a tenant. Another was convicted of unauthorized access of information. Lewis said that neither appeared to have been reported in the local media or disclosed in any kind of way.
“San Francisco citizens missed the opportunity to know that there might be a problem and ask for oversight of confidential information,” he explained.
It seems both sides are at an impasse.
At Friday’s news conference, Becerra made clear that the scenario is “a difficult one.”
“I’m all for investigative journalism, especially in this day and age, in this country, but you can’t play fast and loose with private, confidential information,” he said.
The Berkeley Center did nothing wrong in securing the information. But “what they do next is something different,” Becerra said.