Almost as soon as a federal appeals court reversed a lower court’s ruling that certain internal sheriff’s records must be made available to the public, lawyers for the County of San Diego began capitalizing on the decision. The Office of County Counsel, which defends Sheriff Kelly Martinez and o ther officials and agencies in civil litigation, is broadly interpreting the recent 2-1 ruling by the 9th U.S. Circuit Court of Appeals and asking judges in other lawsuits to withhold similar records — or to reverse prior decisions to hand over the records. In at least four unrelated cases, the county is trying to prevent plaintiffs from accessing findings by the Critical Incident Review Board, or CIRB, an internal panel of sheriff’s officials that considers potential policy changes after someone dies or is seriously injured while in sheriff’s custody. The county has prevailed in its efforts to keep the records private in one case. Rulings in the three other cases are pending. The records at issue are especially pertinent to San Diego County, which long maintained one of the deadliest jail systems in the state and has paid out tens of millions of dollars to families of people who have died in custody. In June 2023, U.S. District Court Judge Jinsook Ohta ruled in a lawsuit brought by The San Diego Union-Tribune and other media organizations that CIRB reports related to 12 in-custody deaths should be unsealed. The documents had originally been requested by lawyers for Frankie Greer, who accepted a $7.75 million settlement from the county after he had a seizure and fell from the top bunk of his three-bunk jail cell and suffered a traumatic brain injury. “There are valid and compelling reasons for the public to be informed about conditions inside the county jails,” the judge said. “The public has an interest in those documents.” San Diego County appealed Ohta’s order hours before the documents were scheduled to be released, arguing that the records were privileged because a lawyer for the sheriff participates in review board meetings. In February, a majority of the appeals panel ruled that San Diego County could withhold CIRB reports under the attorney-client privilege for that reason. The dissenting judge disagreed, saying the county had not established that CIRB’s primary purpose was to consider potential legal liability and finding that at least some of the documents tied to its reviews could be turned over. In the weeks since that ruling, lawyers for San Diego County have repeatedly sought to keep other CIRB documents — not just the 12 related to the Greer case — shielded even from attorneys who had previously been able to get the documents as long as they weren’t shared with the public. “Based on the new Greer Ninth Circuit decision, (the) county requests the court reconsider and reverse the clearly erroneous and contrary to law rulings in the order compelling the production of CIRB documents,” county lawyers argued in one jail-death case. “The privilege claim and materials addressed in Greer are materially identical to those in this case, and prompt reconsideration here,” they wrote. It’s not yet clear if San Diego County’s legal strategy will succeed. Prior to the 9th Circuit decision, several judges had ruled that CIRB reports weren’t protected by attorney-client privilege and therefore must be provided to plaintiffs’ attorneys, though under seal. Even the decision the county won was entered without prejudice, meaning it could be revisited if the 9th Circuit panel’s ruling is not upheld. Last month, the Union-Tribune and other news organizations requested what’s called an en banc hearing, or a review of the case by all of the 9th Circuit judges. There’s no telling when — or whether — the petition will be granted. But if the Greer ruling is not clarified, even more government agencies are likely to stretch the definition of attorney-client privilege to improperly withhold internal documents, according to the petition filed by Blood Hurst & O’Reardon, the law firm representing the Union-Tribune, Prison Legal News and Voice of San Diego. “The panel’s sudden broadening of attorney-client privilege, in conflict with Circuit case law, will have profound implications that reach far beyond the sealing of documents related to jail deaths,” the petition states. “The majority’s analysis allows organizations to shield factual information from disclosure by placing an attorney in the room,” it adds. Plaintiffs’ lawyers say the divided 9th Circuit decision is limited to the CIRB reports at issue in the Greer dispute — not other review board records. They also point out that the Greer case is not yet binding because the decision remains the subject of a rehearing request. The Greer opinion also appears to conflict with new state legislation that calls for the public release of internal findings in jail-death investigations, regardless of attorney-client privilege. Under Senate Bill 519, which was signed into law in 2023 and went into effect last July 1, California sheriffs must release “documents setting forth findings or recommended findings” from internal reviews of jail deaths. Former state Sen. Toni Atkins, the law’s author, has said she intended the legislation to apply to CIRB reports. But the Sheriff’s Office has posted records related to three deaths — including photographs and homicide reports — on its website, but it has not publicly released anything reflecting “findings or recommended findings.” When asked why these records were not included in the disclosures, a sheriff’s spokesperson said the department “had released all relevant documents and materials in compliance with this law.” A lawyer who represents the families of multiple people who died in the sheriff’s custody disagrees. “The sheriff’s department continues to deny and fight the clear intent of the Legislature,” said Julia Yoo. “Given the department’s track record of spending public resources to hide its problems instead of fixing them, the Board of Supervisors needs to step up to ensure that it complies with the law,” she said. Yoo was also one of four attorneys who filed a brief with the 9th Circuit court in support of the en banc review of the 2-1 Greer opinion. Historically, county supervisors generally have been reluctant to try to exercise more control over the county’s elected sheriff beyond approving her office’s annual budget — even though the legal costs of civil lawsuits take money away from the general fund. Late last year, however, Supervisor Monica Montgomery Steppe introduced a plan to expand the authority of the Citizens’ Law Enforcement Review Board, the volunteer oversight panel charged with monitoring the Sheriff’s Office and Probation Department. The suggested changes, which include adding jail medical staff and contractors to the oversight panel’s purview, are in the process of being evaluated and are expected to return to the board later this year. The Sheriff’s Office also has declined to release CIRB reports when they are the subject of California Public Records Act requests, citing attorney-client privilege. David Loy, legal director at the First Amendment Coalition, a nonprofit that is committed to open government, said San Diego County should not be withholding CIRB reports sought under the state open-records law. “If you or I make a Public Records (Act) request, I don’t think Greer can supersede (Senate Bill) 519,” Loy said. “As a general matter, the public always has a compelling interest in as much transparency as possible about the deaths of people in jail.” ...read more read less