Sonoma County Sheriff’s Office declines to release deputy misconduct records, citing court cases

Sonoma County has declined a request to release records spelling out investigations into misconduct by its sheriff’s deputies before Jan. 1, joining the Santa Rosa Police Department and numerous other law enforcement agencies statewide who have opted to withhold older personnel records as court fights play out over California’s new police transparency law.

The law was meant to give Californians greater insight into probes of police use of force resulting in death or serious injury, any sustained findings that an officer sexually assaulted a civilian or was dishonest in the course of duty, and other records related to personnel investigations.

The Press Democrat requested those records from all law enforcement agencies in Sonoma County at the beginning of the year, after the new police transparency law, Senate Bill 1421, went into effect.

But the County Counsel’s Office, in its written response this week to the newspaper, said the Sheriff’s Office will not publicly release any of those records dated before Jan. 1, citing the advice of the state Attorney General’s office regarding the application of the new law.

Police unions have argued in court cases that the new law applies only to those records generated since Jan. 1.

Sonoma County Sheriff Mark Essick said he believes the Sheriff’s Office will eventually release a wider range of personnel records dated before this year.

“I do support releasing the records. Ultimately, I do think the courts will determine that these records are releasable,” he said in an interview Wednesday. His concern, he said, is that if his agency releases records from before Jan. 1, and the courts end up ruling the law is not retroactive - meaning it does not compel disclosure of records created before Jan. 1 - the county could be at greater risk of being sued by the deputies named in the records.

“I’m kind of put in the middle of this balancing act here, and no matter which way I go I’ve got some liability,” said Essick, who is in his first year leading the county’s largest law enforcement agency. “It’s a big decision for me, it’s been weighing on me.”

Five superior court judges in California have ruled against police unions, while one judge in Southern California ruled preliminarily in their favor. Several of those cases have been appealed and the issue is likely to land before the state Supreme Court.

The Santa Rosa Police Department also declined to release records created before the beginning of the year. But several North Bay law enforcement agencies, including police departmetns in Sebastopol, Rohnert Park and Healdsburg, have released records under SB 1421 that were created before Jan. 1.

In the County Counsel’s written response Tuesday to The Press Democrat, Deputy County Counsel Joshua Myers said the Sheriff’s Office is continuing to prepare older records for release in the event that the court cases are settled in favor of disclosure.

“The Sonoma County Sheriff’s Office remains committed to complying with the requirements of SB 1421 and the California Public Records Act, and to continue its ongoing efforts to locate, review and redact any existing non-exempt publicly disclosable records,” the letter said.

David Snyder, the executive director of the San Rafael-based First Amendment Coalition, which has sued Attorney General Xavier Becerra and the California Department of Justice for access to past police records, said he’s confident the agencies will eventually have to turn over the records.

“I think it’s a legally indefensible position, and it will ultimately serve only to delay access, but that’s bad enough,” he said. “The storyline is pretty clear. Courts have roundly rejected the argument that the law is not retroactive.”

Jim Ewert, general counsel of the California News Publishers Association, said police agencies’ argument that records cannot be released until separate lawsuits are settled is legally tenuous.

“There’s nothing in the Public Records Act that allows an agency to withhold requested information because there may be pending litigation somewhere else dealing with a similar record,” Ewert said. “Taking that approach would allow a government agency to withhold all kinds of information because somewhere, someone could be seeking information that is similar.”

The County Counsel’s Office said there had been no records produced since Jan. 1 that would fall under SB 1421.

Essick said he has directed his staff to preserve all records that may eventually be released under SB 1421, and that he remains committed to transparency, a key campaign promise when he ran for the office last year. Asked how many personnel records the Sheriff’s Office has identified that may be releasable under SB 1421, and what they generally relate to, he replied “at this time, I’m not willing to disclose that.”

Board of Supervisors Chairman David Rabbitt said the board had not weighed in on discussions between the Sheriff’s Office and County Counsel regarding the decision to withhold personnel records.

“I haven’t read the exact legislation to know how it’s worded, but obviously there seems to be enough doubt that people are waiting to see what the courts say about it,” he said. “I think the concern is that once something is released, it’s out, there’s no way to pull it back.”

An appeals court for the area covering Sonoma County has rejected the police unions’ request to hear their case.

Judge Charles Treat of the Contra Costa County Superior Court ruled against a number of East Bay law enforcement unions and the Contra Costa County Sheriff’s Office seeking to block release of records created before Jan. 1.

The First District Court of Appeals, which covers Bay Area and North Bay counties including Sonoma, Mendocino, Lake and Napa, declined to hear their appeal, saying in its unpublished opinion that their argument was “without merit.”

Following that ruling, the affected police agencies were required to release the records by March 19. At least two, the Richmond Police Department and the Walnut Creek Police Department, did so. The records from Richmond police generated headlines about a Richmond officer’s firing for engaging in a sex act while on duty with a teenager he met while she was attending De Anza High School, where he worked as a school resource officer.

You can reach Staff Writer Andrew Beale at 707-521-5205 or andrew.beale@pressdemocrat.com. On Twitter @iambeale.com.

This story was produced as part of the California Reporting Project, a collaboration of more than 30 newsrooms across the state to obtain and report on police misconduct and serious use-of-force records unsealed in 2019.