SAN JOSE – The ACLU is suing the Santa Clara County District Attorney’s Office to obtain a cache of charging data it says it needs to evaluate the county’s compliance with racial-equity legislation, with prosecutors pushing back by warning the data could endanger the privacy rights of thousands of people.
In a lawsuit filed late last month, the ACLU of Northern California asked the county Superior Court to order District Attorney Jeff Rosen and his office to turn over a decade’s worth of records detailing when prosecutors chose to and declined to charge crimes and who made the call, as well as accompanying information such as race and other demographic markers.
The civil-liberties group contends that the data – which it has sought from DA’s offices throughout the state – is necessary to identify whether and how race has influenced prosecutions in the context of the Racial Justice Act. The landmark California law, which was enacted in 2021 and originated in the South Bay, provides relief for criminal defendants who can show they were prejudiced by explicit or systemic racial bias in their charges, convictions, or sentences.
To date, courts have reversed serious convictions under the law, including murder and rape cases in the Bay Area. But violations have almost entirely involved explicit or demonstrative bias, such as improper references to rap lyrics to impeach a defendant or implications that race affected the diligence of a police investigation.
That is where the ACLU lawsuit comes into play: it seeks to use the California Public Records Act to compel disclosure of searchable data sets that could show, systemically, how someone’s race, ethnicity, neighborhood, financial status, criminal history and other characteristics align with charging and sentencing severity, pretrial jailing, sufficient legal defense and leniency in the form of pretrial diversion or plea agreements.
“We have a specific goal here of aiding public defenders in bringing Racial Justice Act claims. Many of these claims, especially the ones that are based on disparities in charges, convictions or sentencing, really depend on making a complex, data-driven argument based on prosecutorial data,” said Shaila Nathu, an ACLU senior staff attorney who co-wrote the lawsuit. “This spans demographic information of defendants but also the prosecutorial practices of the office.”
The ACLU, represented by the San Francisco- and New York-based law firm BraunHagey & Borden, emphasizes that it has requested de-identified information. But the District Attorney’s Office and County Counsel’s Office contend there is no reasonable way to release that breadth of data – including case numbers and other unique identifiers – without exposing identities and sensitive information about people who have come before local prosecutors, including those who were never charged.
The county has provided some requested data, including aggregate charging information and records of training materials addressing the RJA. But fully complying with the ACLU’s request and eschewing the government codes and privacy exemptions they have cited, the DA’s office says, would create a public road map for immigration officials and other entities to target people based on their race and encounters with law enforcement.
“Using the CPRA for this matter is misguided. It will hurt a lot of innocent people, including immigrants and people who have gotten their records expunged,” said Assistant District Attorney David Angel, referring to the state’s open records law. “This will allow anyone to demand a list of all people of a certain race who have never been charged with a crime. There are sound reasons why California has always kept this private.”
Additionally, Angel and the county have said the requested information cannot be readily queried in their systems, so tens of thousands of records would have to be hand-culled and manually redacted.
“The CPRA is to get public records, and we will give out the legally appropriate information, but the government is not meant to conduct your research for you,” Angel said. “Even if we hand redact, you would be able to figure out who it was, and it would not remain confidential. Think of medical records. If it was your medical record, you would ask, ‘You’re giving the ACLU my medical records and just blanking out my name?’”
Nathu referenced the lawsuit in insisting that the ACLU is expressly not requesting sensitive information, and takes issue with what they have characterized as blanket exemption claims.
“Part of our case is that they have failed to assert exemptions, including the right to privacy, with any specificity. It’s their burden under the law to demonstrate this would result in re-identification,” she said. “Our argument is there are other categories that could be disclosed without risking privacy, and instead they’re painting with this broad exemption brush and giving us nothing to work with.”
Angel reiterated his contention that seeking prosecutorial data through the state’s public records act is a poor avenue, and pointed to portions of the RJA legislation that outline a court discovery process in which provided data can be shielded from public view by court order.
“If the goal is to get evidence, use the Racial Justice Act,” Angel said. “The RJA has provisions on how to do just that. And we have already given them de-identified data.”
Nathu says that path is not readily available to watchdog organizations because bringing motions is a role they see as rightfully belonging to defense attorneys. The public records act, she adds, is the only practical way to obtain data for broad-scope evaluation of how the Racial Justice Act is being administered.
“We’re seeking access to records for the public and for scholars who want to analyze this data,” she said. “We’re getting access for everyone.”
The county Public Defender’s Office, which files the lion’s share of RJA motions in the South Bay, says while they favor court discovery over public records requests, they see it as a practical matter that best serves their clients’ individual interests.
“The ACLU litigation raises broader and important questions, as they invite the court to strike a balance between data privacy and the transparency required by the law,” Acting Public Defender Damon Silver told this news organization. “Achieving that, however, will require substantial investment in both implementing the (Racial Justice) Act and ensuring transparency for the community. Both are essential, while also recognizing misuse of conviction information can harm our former clients.”