Today the First Amendment Coalition and a bunch of newspapers and newspaper-adjacent organizations filed an ex parte application for leave to intervene in the appalling case initiated by the Los Angeles Police Protective League seeking to prevent California’s new police transparency law, SB1421, from applying retroactively to records of police misconduct prior to 2019. This same crapola was already tried elsewhere and decisively shot down by the California Supreme Court, but, for whatever reason, in Los Angeles County the case must go on.
FAC is seeking to intervene in the case, even though they’re not parties to it. This is evidently sometimes allowed, according to the Wiki, when “a judgment in a particular case may affect the rights of nonparties, who ideally should have the right to be heard.” Here’s the pleading filed by the FAC. It’s called an ex parte application because they’re asking the judge to decide whether they should be allowed into the case without requiring the other parties to be present at the hearing, which is tomorrow morning at 8:30 a.m. in Department 85 of the Stanley Mosk Courthouse.
Because they aren’t parties to the case, they have to convince the judge that the interests of justice are served by allowing them to become parties. This argument is a huge part of their filing. They also argue that neither of the actual parties to the case, the PPL and the City, have any interest in ensuring that the public has access to records. In fact, they argue, it’s possible that the City may not file a response to the petition. Also, I guess to save time, they include the briefing that they’re proposing to file if the judge allows them to. It’s a powerful piece of writing, and you can find transcribed selections after the break.
I. INTRODUCTION
The proposed intervenors in this action are organizations that promote and defend the right of access to government records and seek to advance government transparency and accountability through public oversight. The First Amendment Coalition (“FAC”), Los Angeles Times Communications LLC (“LAT”), California Newspapers Partnership L.P. (doing business as the Southern California Newspaper Group (“SCNG”) and Bay Area News Group (“BANG”)), The Center for Investigative Reporting, Inc. (“CIR”), and California News Publishers Association (“CNPA”) (collectively, “Intervenors”) each have a strong and direct interest in accessing government records concerning the use of force and serious misconduct by law enforcement officers, and in promoting laws and policies that increase public access to such information.
Petitioner Los Angeles Police Protective League (“Petitioner” or “LAPPL”) filed a Verified Petition for Writ of Mandate, Alternative Writ of Mandate, and Request for Stay Order “Petition”) on December 31, 2018 seeking to prevent the City of Los Angeles (“City”), the Chief of Police for the City of Los Angeles, Michel R. Moore (“Moore”), and Does 1 through 20 (“Respondent Does”) (collectively “Respondents”) from disclosing information contained in City and Los Angeles Police Department (“LAPD”) personnel records and information regarding incidents or reflecting conduct occurring before January 1, 2019 (“pre-2019 records”). Specifically, LAPPL contends that application of SB 1421 to pre-2019 records would be an impermissible “retroactive” application of the law, and that disclosure of records regarding conduct occurring before January 1, 2019 to the public should be prohibited. This Court issued an preliminary alternative writ of mandate and immediate stay order on December 31, 2019, preventing Respondents from disclosing pre-2019 records containing information subject to Penal Code section 832.7 as amended by SB 1421 (“Section 832.7”).
Respondents may or may not file a Return and may otherwise oppose the Petition. (Other similarly situated public agencies have not.) However, the Respondents cannot adequately represent and speak for the interests of the Intervenors. The Respondents’ primary concern in this action is compliance with their legal obligations under the California Public Records Act (“CPRA”). They have little if any direct interest in ensuring that Section 832.7 is construed in a manner consistent with its Legislative purpose of expanding public access to information regarding the use of force and serious misconduct by law enforcement officials. Moreover, Respondent Moore, in his official capacity, has actively expressed the LAPD’s opposition to the application of Section 832.7 to pre-2019 records, citing concerns that such application will impose significant burdens upon the department’s investigatory staff. (Petition, Ex. B.) In contrast, fntervenors have an independent, substantial, and direct interest in protecting the right of access to government records. In addition, Intervenors have submitted requests for pre-2019 records under the California Public Records Act (“CPRA”). Should this Court grant the Petitioner’s request for a final writ of mandate, Intervenors’ access rights would be permanently and irreparably harmed.
Accordingly, because the Court’s determination regarding Petitioner’s requests directly affects Intervenors, Intervenors respectfully request leave to intervene in this action to oppose the Petition and to vindicate the public’s and the press’s right of access to government records under the California Public Records Act, Article I, § 3(b) of the California Constitution, and Section 832.7 as amended by the California Legislature.
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C. The Intervenors
Intervenors each have a strong interest in accessing the City’s records concerning serious misconduct and uses of force by LAPD officers, and in promoting laws and policies that increase public access to such information. (Ex. A, 8-13, 25-35.)
FAC is a nonprofit public benefit corporation dedicated to advancing the public’s right to participate in government and access infonnation regarding the conduct of the people’s business.
The public has a particularly strong interest in accessing the City’s records concerning serious misconduct by LAPD officers, and FAC is interested in promoting laws and policies that increase public access to such infonnation. (Ex. A, f 8, 26, 27; Declaration of David Snyder, filed herewith (“Snyder Deck”), ]f 2-3) FAC was active in supporting SB 1421. On April 9, 2018, FAC sent an open letter to Senator Nancy Skinner, the bill’s author, expressing its strong support of SB 1421. (Snyder Deck, Ex. A.) That same day, FAC posted the letter on its website, urging others to also support of the bilk (Id., Ex. B.) FAC is listed in the official legislative analyses among the organizations that publicly supported SB 1421. FAC’s support of SB 1421 reflects its mission to advance transparency and accountability of government and government employees, including law enforcement officers, and to prevent government secrecy and censorship. (Id., ]( 3.) On January 10, 2019, FAC submitted a CPRA request, both through the LAPD’s online public records request portal and by email and letter delivered via U.S. mail to Moore, for LAPD records from 2017 and 2018 that contain information subject to SB 1421. (Ex. A, 27; Snyder Decl., ]fl| 4, 5.) The City Clerk’s Office responded by email on January 10, 2019, claiming that the 2017 and 2018 police records had not been transferred to the City Records Center, and that FAC must submit its request through LAPD’s online public records request portal to receive a necessary release of the records from LAPD. {Ibid.) FAC did so, yet as of January 16, 2019, Respondents have failed to produce the requested records pursuant to the CPRA and SB 1421.
LAT is the largest daily newspaper based in California. (Ex. A, 10, 29-31; Declaration of Jeff Glasser filed herewith (“Glasser Decl.”), ]f 2.) LAT’s popular news and information website, www.latimes.com, attracts a national audience. LAT regularly joins litigation defending the public’s rights of access to government records and meetings. {Ibid.) LAT previously vindicated the California public’s rights of access to the names of police officers {Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278 (POST)) and the names of most officers involved in shootings in California {Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59 (LBPOA)). {Ibid.) In recent years, LAT also ensured public access to a consultant’s report on the shooting by Pasadena police of an unanned teenager {Pasadena Police Officers Association v. City of Pasadena (2015) 240 Cal.App.4th 268) and the names of officers who pepper sprayed student protesters at the University of California, Davis {Federated University Police Officers Assoc, v. Superior Court (2013) 218 Cal.App.4th 18). {Ibid.) As part of these cases, the Supreme Court of California has recognized that the “public’s interest in the qualifications and conduct of peace officers is substantial” {POST, supra, 42 Cal.4th at p. 297- 299) and that “officers hold one of the most powerful positions in our society; our dependence on them is high and the potential for abuse of power is far from insignificant” {LBPOA, supra, 59 Cal.4th at pp. 73-74) (internal citation omitted)). On January 1, 2019, LAT submitted CPRA requests to both the LAPD and the Los Angeles Port Police for records involving information covered by SB 1421 including pre-2019 records. (Ex. A, 30-31; Glasser Deck, ]f 4-5.) On January 8 and January 10, 2019, Respondents responded that they are prohibited from disclosing or providing any records relating to incidents occurring before January 1, 2019, due to this Court’s temporary order in these proceedings staying the City’s enforcement of SB 1421. {Ibid.) Because LAT is headquartered within the City of Los Angeles, reports on matters involving the LAPD, and maintains a strong interest in inspecting records concerning misconduct of LAPD peace officers, LAT has a concrete interest in ensuring public access to all disclosable LAPD disciplinary records, including those created before the law’s enactment and involving infonnation of pre-2019 incidents. (Glasser Decl., f 3.)
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The Respondents cannot adequately represent Intervenors’ interests because the Respondents’ primary objective is merely to comply with the CPRA, not to vindicate the public’s and the press’s right of access to government records. In fact, LAPPL’s request that SB 1421 not apply to pre-2019 records would reduce the administrative burden on the Respondents, since they would not be required to search and produce records related to conduct occurring before January 1, 2019 in response to CPRA requests. Respondent Moore in his official capacity specifically expressed the LAPD’s concerns regarding the application of SB 1421 in a letter to Senator Skinner dated December 3, 2018, asserting that it would impose a substantial burden upon the LAPD in responding to CPRA requests. (Petition, Ex. B.) The Respondents’ interests are thus not only not opposed to LAPPL’s, but appear to be aligned with LAPPL’s, at least in some respects.
