Former Rep. Xavier Becerra (pictured), D-Los Angeles, was appointed in 2016 by Gov. Jerry Brown to replace state Attorney General Kamala Harris after she was elected to the U.S. Senate. He won a full term in the 2018 elections.

While Becerra joined Brown in backing measures that made the criminal justice system less punitive, he has come in the cross hairs of activists for his interpretation of Senate Bill 1421, which took effect Jan. 1.

The measure, by state Sen. Nancy Skinner, D-Berkeley, wipes away decades of protections of police discipline records that were adopted by past lawmakers and upheld by courts. It mandates the release of such records if they involve life-threatening or lethal use of force, sexual misconduct and lying in the execution of official duties.

Last year, however, police unions began arguing that Skinner’s law only applies to disciplinary records generated after it took effect Jan. 1 – not to past reports of discipline. However, on Jan. 2, the California Supreme Court denied an emergency request for a delay in implementing the law pending a full review of how the law should be interpreted. This was seen by legal observers as a plain sign that state justices agreed with Skinner, who said the retroactive intent of her law was clear.

Becerra won’t release discipline records of his agents

Nevertheless, police unions representing specific agencies have continued to file lawsuits. In two cases, involving Los Angeles and Richmond police officers, local judges have agreed to a temporary hold on discipline records predating Jan. 1 of this year.

These rulings were cited earlier this month by Supervising Deputy Attorney General Mark Beckington in rejecting a public records request for discipline records of law enforcement agents who work for Becerra.

In an interview with KQED, the Northern California PBS affiliate, the executive director of the California First Amendment Coalition blasted Becerra for his department’s decision, saying it sent the wrong message to local agencies and reflected a failure of leadership.

“This is the highest law enforcement officer in the state. He has decided not to disclose records that I think the new law makes very clear should be disclosed,” David Snyder said.

Skinner told KQED that the attorney general’s decision was “puzzling” given that several state law-enforcement agencies complied with the law once it took effect.

But Becerra has rejected criticism, saying that on privacy issues – especially those involving law enforcement officers – he would err on the side of caution.

The controversy has echoes of criticism facing Sen. Harris, the former San Francisco district attorney, as she has launched her bid for the 2020 Democratic presidential nomination.

In her new autobiography, “The Truths We Hold,” and in speeches to progressive groups, Harris has depicted herself as an aggressive advocate of the view that the criminal-justice system is overly punitive and particularly harsh on some minority groups.

Harris critics, defenders fight over her record

But University of San Francisco law professor Lara Bazelon says that doesn’t square with her record as San Francisco DA and state attorney general. In a commentary for the New York Times, Bazelon wrote that Harris was willing to use evidence she knew to be tainted to obtain convictions.

Other reformers have focused on her refusal to support Proposition 47, the 2014 ballot measure that limited prison time for nonviolent crimes, and her opposition to legislation that would have mandated her office conduct independent investigations of fatal police shootings.

Harris’ defenders say this amounts to cherry-picking that ignores key parts of her record. They note she supported a pioneering program in San Francisco that provided resources and counseling to keep first-time drug offenders from ending up in a life of crime. They also note that as attorney general, her agency was the first in the state government to require that its law-enforcement agents wear body cameras.

It’s unclear when the dispute over police discipline records will be resolved. But since lower state courts have reached different decisions on how to interpret Senate Bill 1421, that normally means the issue won’t be resolved without a California Supreme Court ruling.

A cadre of First Amendment groups alleges that the subcommittee of the California Law Enforcement Telecommunications System (CLETS) also approves action that is then rubber stamped by the CLETS advisory committee (CAC) just hours later, again failing to properly announce what will be part of a discussion determined by law to be subject to advance disclosure.

The subcommittee, called the Standing Strategic Planning Subcommittee (SSPS), is, like CAC, composed of members of law enforcement associations and state agencies who form policy on justice matters in the state.

“Since at least July 2013, [CAC] and SSPS have scheduled their meetings on the same day. SSPS convenes in the morning and votes to make recommendations, then [CAC] meets in the afternoon and votes to finalize those recommendations,” reads a July 16 letter to the law enforcement telecom committee, signed by representatives of the Electronic Frontier Foundation, the ACLU, the First Amendment Coalition and Californians Aware. “This has resulted in a system in which the public has only a few hours to analyze decisions and formulate comment before these proposals are formally approved.”

The complaint was spurred by a plan to use the drivers’ license photo and other information of Californians with law enforcement agencies nationwide for use in facial recognition databases.

That idea was scrapped after the agency received 1,500 complaints earlier this year. But it was in the final stages of approval when it was discovered after being passed via the alleged breach of the open meetings law.

During a March meeting of the CAC, David Maass, an investigative researcher with the Electronic Frontier Foundation, told the board that he and others were concerned about the effort to allow federal access to state drivers license data.

According to the minutes of that meeting, in response to Maass’ comments, “SSPS Chair [Tom] Bruce stated that the SSPS makes no decisions on policies, practices and procedures and that the subcommittee’s role is strictly advisory.”

As is the role of the CLETS board, according to the DOJ website, which states that the board’s job is to “counsel and assist the Attorney General on the proper collection, storage, dissemination and security of CLETS data.”

The DOJ had already applied for a $50,000 grant to put drivers’ license data into a national database, despite the warning of the California Department of Motor Vehicles that the policy violated state privacy law.

The subcommittee did not meet for four years before being put back together in 2013 “so that there are proper eyes on the future and to deal with issues that are not generally reviewed by [CAC],” according a minutes from a July 2013 meeting.

At that time, the board was cautioned by chairman Sam Spiegel that “the subcommittee needs to abide by the 2004 Bagley-Keene Open Meeting Act, which requires public notice of meetings, agendas and an opportunity for the public to testify.”

Spiegel did not return a call.

In a joint meeting in November 2013 that was called to specify the goals of the freshly-revived subcommittee, board members noted that the sharing of drivers’ license photos nationally was not being done.

That meeting, though, launched the crusade to provide state drivers’ license photos to the feds. It was noted that the state was developing an “image warehouse” that will have facial capability.

At that time, subcommittee member Julie Basco, a representative from the state Department of Justice, said the federal law enforcement telecommunications system was seeking to include department of motor vehicle photos “though she is not aware of plans from [the feds] to create a national photo repository for DMV…”

The DOJ declined to make Basco available for an interview.

On Wednesday, the subcommittee is scheduled to meet at 9:00 a.m. followed by CAC at 1:00 p.m.