The city of Eureka just made a very big decision, one that could change the law in California and ultimately cost city taxpayers tens of thousands of dollars.
So who made this call? Was it the city attorney? The city manager? The elected members of city council? We don't know and that's a problem, especially in a city prone to trumpeting its commitment to "transparency."
The city is petitioning the California Supreme Court to depublish a recent appellate opinion in which the court's justices rejected the city's argument that a police video depicting the arrest of a 14-year-old suspect is a confidential police officer personnel record. That makes a total of four California judges who have dismissed Eureka's position as a broad overreach.
The minutiae of the case is largely irrelevant here, so we'll skip it other than to say the arrest led to criminal charges being filed — and later dismissed — against one of the involved officers and exactly what happened on California Street shortly before midnight on Dec. 6, 2012 remains a mystery. That's because video of the incident has never been released, despite more than two years of the Journal's efforts.
On May 21, 2015, Humboldt County Superior Court Judge Christopher Wilson granted a Journal petition through the juvenile court system, finding that public interest in the video outweighed any privacy concerns and ordered the footage released. The city then appealed. Some 14 months later, in July, the appellate court decided Wilson got it right, finding that such videos are "simply a visual record" of arrest and not generated as a part of the review or discipline of an officer.
The published appellate court opinion potentially has a broad impact, as it's the first to unequivocally state that such videos shouldn't be afforded the stringent privacy protections that state law grants police officer personnel records. As such, the opinion sets a precedent and stands to guide future court rulings on whether police videos should be released to the public.
And this is where the city of Eureka has decided to again step in. By asking the Supreme Court to depublish the decision, the city is no longer fighting release of the specific video that may or may not show a 14-year-old boy being assaulted by an officer. Instead, the city is fighting the setting of precedent that police departments throughout the state shouldn't be able to take videos, filmed on taxpayer purchased equipment, of public employees performing their publicly entrusted duties in public spaces and hide them as confidential personnel records. The city is saying that when this equipment captures an officer using force in a public space, citizens shouldn't be able to see it because that officer's right to privacy — while on duty, in public — trumps your right to know.
And the city is pushing this argument on the public's dime. According to documents turned over under a California Public Records Request, the city had spent at least $7,500 on the appeal as of late July. And the appellate court's opinion explicitly states that the Journal's attorney, Paul Nicholas Boylan, is entitled to recover his costs and fees from the city. We don't know what those fees and costs will be — Boylan took the case on contingency, meaning he only gets paid if he's successful and a judge orders the city to reimburse him — but it's a safe bet they won't be cheap. Boylan's last fees and costs award in Humboldt County totaled more than $45,000.
So who in City Hall has decided that protecting an officer's "right" to keep private what he or she does on public streets overrides your right to know what the state is doing on your behalf? Who decided that fight was worth potentially paying well into five figures to wage? We don't know.
The case has only been agendized once for closed-session discussion with the Eureka City Council since the appellate court's ruling, and the council announced no final action. City Attorney Cyndy Day-Wilson did not respond to a Journal email asking who made the decision to pursue depublication. Mayor Frank Jager, councilmembers Linda Atkins, Marian Brady and Kim Bergel all declined to answer Journal inquiries on the subject, saying the case is a matter of ongoing litigation and has been discussed in closed session. City Manager Greg Sparks similarly demured, saying Day-Wilson told him not to respond because the case "is in litigation and could not be commented on."
This is all, of course, pure nonsense. Do the facts that this is ongoing litigation and that the case was discussed in closed session give city officials an out, something to point to as though their hands are tied? Apparently. But is there any possible way that disclosing who made this decision might impact the outcome of this city-initiated litigation? No. And is it reasonable to expect that when public officials make a decision that could cost a lot of money and dictate what we can and can't see, someone should stand up and own it? Yes.
On the heels of the appellate court's July ruling, the city issued a press release stating it was "evaluating its options." In the release, the city opined that the case is "not about transparency."
On every possible level, we beg to differ.