A February ruling by a divided of three judges on the 9th U.S. Circuit Court of Appeals — which allowed the San Diego County Sheriff’s Department to withhold some internal department documents related to jail deaths — immediately led to warnings from lawyers representing the Union-Tribune and other news organizations seeking the records. They said it would prompt the department to try to hide even more of its dirty laundry related to years of excessive deaths at its jails. That’s exactly what’s happened. County lawyers are asking judges overseeing other jail death lawsuits to withhold similar records and to reverse previous decisions to provide records.
The issue revolves around whether reports prepared by the sheriff’s Critical Incident Review Board are protected by attorney-client privilege because a lawyer representing the department is present at review board meetings. In 2023, a federal district judge rejected that argument and said the public interest is served by release of crucial information about jail operations.
The U-T Editorial Board doesn’t have the legal savvy to judge the case. But the idea that the presence of an attorney for a police agency during internal reviews of alleged wrongdoing can be grounds to keep those reviews from ever becoming public invites government misconduct on a broad scale.
And what is beyond dispute is that the appellate ruling goes against the intent of Senate Bill 519, which took effect last July. It says sheriffs in California must release “documents setting forth findings or recommended findings” from internal reviews of jail deaths. The author of the bill — former state Sen. Toni Atkins, D-San Diego — very much intended it to apply to reports like those of the Critical Incident Review Board.
There remains a chance that the trial judge’s ruling will be upheld if the 9th circuit agrees to an en banc hearing in which all of the circuit’s judges review the ruling by the three-judge appellate . But if that doesn’t happen, it’s time for state lawmakers to consult with legal experts to see how Senate Bill 519 can be amended to make its openness provisions even stronger. Whether or not it has a solid legal basis, the February ruling makes indefensible conduct more likely in law enforcement agencies throughout California.
