CalAware Today

Sunshine Week Special: A Public Records Wizard

Beginning this Thursday, March 20, anyone seeking access to public records from California state or local government agencies can use a quick, inexpensive Internet service called SunScribe. Sacramento-based Californians Aware, a nonprofit open government advocacy group, is offering the new wizard-assisted service. It can be accessed on CalAware’s Web site (www.calaware.org) and will automatically generate customized request letters developed by public records legal specialist Terry Francke, who serves as CalAware's general counsel. 

SunScribe will offer users three levels of service:

• The basic level is a do-it-yourself option that will generate a form letter for the user to submit. This service is free to CalAware members, or $2.99 to others.
• For those seeking anonymity as requesters, CalAware will contact the relevant agency on the user’s behalf at the Gold service level, available to members at $19.99.
• The full-service or Premium level will include further assistance and oversight by Francke, who will follow up with the agency with reconsideration letters if he feels that the request was improperly denied, plus an evaluation of the strength of the agency’s position to help denied requesters decide their options.  Premium level service is available to members at $74.99.

SunScribe will be the first public records request service of its kind in California, offering help that previously has been available only through attorneys charging hundreds of dollars an hour. 

The service does not include legal representation or litigation, but attorneys who provide such service throughout the state are listed in CalAware’s free lawyer directory.

SunScribe is a service made possible by a grant from the law firm of Cooper, White & Cooper in San Francisco.

For more details, visit www.calaware.org beginning Thursday, March 20.

Deliberative Process Exposed?

A lawsuit filed by a cardroom against the City of San Jose is making the first frontal and focused attack on the deliberative process privilege, an increasingly argued justification for withholding government records in California. The plaintiff in Sutter’s Place Inc. v. Superior Court contended in oral argument before Court of Appeal for the Sixth District last week that use of the privilege was entirely undermined by passage of Proposition 59 of 2004. 

That statewide ballot measure, passed by an 83.4 percent approval of the electorate:
    • added open government—specifically, access to meetings of government bodies and records of public agencies and officials—as a fundamental right of Californians provided by the state constitution;
    • declared that notwithstanding this right, all existing limits on access found in statutes or the constitution would remain in place—but must be narrowly interpreted;
    • declared that any new laws limiting access must be based on findings as to their purpose and the need for the limitation; and
    • exempted meetings and records of the Legislature from any of these access rights.

The deliberative process privilege has, for the past decade and a half, been asserted by state and local agencies as a basis for keeping secret advice or other communications received or recorded by public officials in the process leading up to policy decisions.  The rationale is that if consultation among officials or even with private citizens is exposed to public scrutiny, candid consideration of policy options will be chilled and the quality of decision-making will suffer. 

The privilege, originating in common law principles applied by federal courts in limiting access to records under the Freedom of Information Act, was held by the California Supreme Court in Times Mirror Co. v. Superior Court (State of California) (1991) 53 Cal.3d 1325 to present a public interest in nondisclosure which, under the “balancing test” provided by the California Public Records Act, outweighed the public’s interest in knowing who had met with Governor George Deukmejian over a five-year period.  Public knowledge of that information, disclosed in appointment calendars sought by the Los Angeles Times, would tend to discourage citizens from contacting the Governor and dry up that stream of input from the public, the court reasoned.

(The preposterousness of this notion—that people with enough influence to gain a personal meeting with the Governor are generally shy about having that fact known—did not deter the high court’s majority (all Deukmejian appointees) from announcing it as self-evident, nor did the majority’s likewise conspicuous exercise in conjecture that to know who met with the Governor would disclose his thinking about this or that issue, or indeed that public knowledge of his thoughts would be contrary to public policy.  If this crippling of executive decision-making is real, that risk did not occur to in a recent U.S. District Court decision ordering the Secret Service to disclose White House visitor logs. Judge Royce C. Lamberth observed, “Knowledge of these visitors would not disclose presidential communications or shine a light on the president’s or vice president’s policy deliberations.”)

In this state the privilege has since been cited and upheld in California Public Records Act cases as justifying the withholding of information about those seeking the governor’s interim appointments to vacancies on boards of supervisors and even of information showing the phone numbers to which city council members placed official calls, or from which they received calls on official business.

The current Sutter’s Place litigation deals with the privilege in the discovery rather than the California Public Records Act context, but its thrust could if successful remove deliberative process as an exemption basis under that statute as well.  At issue is a major gambling club’s allegation that the city, which in 1999 encouraged it to relocate and vastly expand in order to increase its taxable revenue, has under a new mayor’s anti-gambling policy imposed limits on its operations calculated to shut it down entirely.  The card club has sought a number of city memos and other documents to illuminate that question, and the city has steadfastly cited the privilege in refusing to disclose them.

The card club’s central argument at this point: “In voting to pass Prop. 59, California voters intended to change the law to allow the public to obtain information about the motives of local agency officials in their decision-making . . . ”

Don’t Ask, Don’t Sue

Among the relative handful of access-favoring interpretations of the California Public Records Act by the California Supreme Court was its 2002 decision in Filarsky v. Superior Court (City of Manhattan Beach), 28 Cal.4th 419, that public agencies, after denying access to a record, may not then sue the requester, in a declaratory judgment action, to get a court’s stamp of approval for  the denial.  If that reaction were permitted, those seeking public records could risk the costs of litigation for just asking, and even fewer would ask than is the case now.  Unfortunately for the residents of Washington state, that very situation has just been handed them by their supreme court. 

Two key factors in the decision:  1. Washington’s Public Records Act, unlike California’s, expressly allows public agencies to seek judicial declarations as to the lawfulness of their decisions to withhold documents (and in doing so, to name the requester as a defendant); and 2. The statute gives the agencies considerable motivation to get a prompt judicial reading on the issue, since if the requester ever does sue and win, they can be hit with a penalty fine of up to $100 per day for unlawful withholding—with no showing of bad faith required.  Conceivably a requester could seek access to a record, get a denial based on a good faith misreading of the law, wait six months, sue for access, and get an order for disclosure, recovery of its attorney fees, and many thousands more in penalty fines. 

Note: In CalAware-sponsored legislation of 2006 and 2007—both vetoed for other reasons—the proposal was for a daily penalty to be imposed only where denial or delay of access was shown to be in deliberate defiance or disregard of the law: in bad faith.

Police Agencies and the Inquiring Public, Part 3

It's not hard for a law enforcement agency of any size to serve the public well by knowing and observing the basics of the California Public Records Act and treating inquiring citizens with dignity and respect. While many departments audited last month (with results released this week) seem to have mastered those essentials, a disturbing minority showed performance so far below these norms that they almost seem contemptuous of them.

A few of the best-intentioned departments took CalAware up on its offer of free training in the past few months, and for these sessions we developed a model policy statement, (legally annotated version free on request) designed to serve three purposes:
    • putting the chief or sheriff on the record as stating the guidelines and procedures the department will follow to assure prompt, courteous and meaningful responses to information requests;
    • providing a posted and leafleted briefing on what to expect, addressed directly to the the public; and
    • providing a clear and concise training reference for department employees dealing with information requests.

While departments sending staff to our training sessions seemed to find the experience positive and helpful,  at least one law enforcement professional organization discouraged its members from participating. It's easy to convince departments not to trust an organization like ours that has the gall to test their legal and professional performance, assign a grade to the results, and publish it all. But we know enough now about those doing the best job at sharing information with ordinary citizens to suggest that there is no shortage of training exemplars in the law enforcement community itself. If there is some way that the best performers could help brief and bring along the rest, one could not ask for a better solution.

Meanwhile, departments assuming that they can charge citizens far more than the direct cost of duplication for copies of crime and accident reports, tapes and photographs need to stop simply taking consultants’ recommendations for these inflated fee levels and instead consult their legal counsel. A class action lawsuit to recover years of fee overcharges could be extremely costly.

Police Agencies and the Inquiring Public, Part 2

Yesterday I reported the first three of four overall lessons from CalAware’s audits of law enforcement agencies’ compliance with the California Public Records Act.  Those conclusions were that    
    • too many police and sheriff’s departments, contrary to law, demanded identification and a statement of purpose before disclosing to non-journalists basic information about particular recent crimes;
    • too many departments in any event say that non-journalists cannot get information from a crime report unless they are the victim—again, a view contrary to law; but that
    • our recent second audit showed improved performance overall, and some top grades in smaller community departments, with larger departments often still challenged.

Our final observation deals with a glaring anomaly, but one that seems to be corrected in many cases as soon as the department’s legal advisor becomes aware of the practice.

Overcharging the Victim


Those involved in a traffic accident or victimized by a crime have but one source for the official record confirming their experience to supply to an insurance company or the state’s crime victims restitution fund. There is no alternative supply of such documents if they do not purchase them from the department that investigated the accident or crime. Moreover, the great majority of such unfortunate persons will probably need such records only once, and have little or no incentive to question the amount charged to obtain them.

Accordingly, the second audit found numerous examples of departments requiring such requesters to pay a fee for crime or accident reports far beyond what the law allows as the “direct cost of duplication.” The most accommodating policy found was to charge crime and accident victims nothing at all, such as in Davis, Santa Rosa, Carlsbad, Galt, Glendora (for the first five pages), Santa Clara Sheriff (for the first 50 pages), and Sacramento (for the first 49 pages).

The lawful and still citizen-friendly policy—to charge the same low per page fee to all requesters for all records copies—is the standard for departments like Coronado, Campbell (5 cents), Dublin, Berkeley, Contra Costa Sheriff, Piedmont, Pleasanton (10 cents), Beverly Hills (20 cents), Banning, Redding, South San Francisco and Brentwood (25 cents).

Beyond these simple and reasonable standards is a wide variation of approaches, many of which set a price on crime and accident reports very far beyond what could possibly be a recovery of the direct cost of duplication per page. A sampling of these rates:

Department                Per page charge for         Crime report fee        Accident report fee
                                      records generally      
Mountain View PD            25 cents                            $16                                $16
Palo Alto PD                        12 cents                            $10                                $10
San Diego PD                        25 cents                            $12                                $12
Los Gatos PD                        50 cents                            $20                                $20
Whittier PD                          10 cents                            $11                                $11
San Bernardino PD             15 cents                            $10                                $15
San Diego Sheriff                25 cents                            $15                                $20
San Jose PD                          20 cents                            $15                                $15
Los Angeles Sheriff            3 cents                               $12                                $12
CHP                                       30 cents                             $10                                $10

Considering the number of audited departments that provided no (or incomplete) information on their fees, local news organizations or citizens interested in their departments’ pricing policies should check the audit spreadsheet or inquire themselves. 



An even more striking set of high charges, apparently well beyond direct duplication costs (considering the economies of high-speed tape dubbing and digital photography), appeared in the amounts charged for copies of videotapes, audiotapes and photographs. One explanation may be that the typical requesters for these kinds of record are attorneys who can pass the cost on to their clients, who in turn may have little inclination to challenge these fees.
 A sampling of these rates:


Department                        Videotape copy            Audiotape Copy            Photograph

Davis PD                                        $65                          $30/30 minutes                   $20
Brentwood PD                               $45                                    $45                              $33
Newark PD                                     $60                                    $60                              $22
Pacifica PD                                     $40                                   $40                               $10
Palo Alto PD                                  $64                                    $64                              $35
Antioch PD                                     $35                                   $35                               $35
Livermore PD                                $63                                    $41                               $45
Concord PD                                   $42                                    $107                      $11.50/disk
Los Gatos PD                                 $48                                    $48                        $48/first 3
Beverly Hills PD                           $120                                  $70                        $1.10-$5.70
Manhattan Beach PD                   $135                                  $135                            $26.50
San Bruno PD                                $63                                    $63                               $39
Santa Monica PD                          $69                                    $13                               $59

Again, considering the number of audited departments that provided no or incomplete information on their rates, local news organizations or citizens interested in their departments’ pricing policies should check the audit spreadsheet or inquire themselves. 



Police Agencies and the Inquiring Public, Part 1

If you can imagine yourself, as a non-journalist Californian, wanting to know more about what really happened in the rumored break-in near your workplace or the apparent arrest down the street last night, be prepared for some resistance if you call up or stop in at the police or sheriff’s department and ask for the basic facts.

The news media get a certain feed of these who-what-where-when specifics, and the victims of crime can get copies of the police reports that more thoroughly record the incident.  But in far too many communities, as an uninvolved, non-media third party, you may be required to state your name and purpose for even asking—and then get little or no information in return.

How do we know this?  A significant sampling of local law enforcement agencies that CalAware has organized over the past year leaves us with this sobering conclusion.  These agencies shouldn’t behave this way, but too often they do, as documented in walk-in audits done first last December and again in mid-October.

Full details including department names, itemized queries and responses, numerical scores, letter grades, and a narrative report of each auditor’s visit are available for both the first and second audits—the latter reported this week by participating news organizations (and some non-articipants) such as KGTV 10News in San Diego, the North County Times in Oceanside, the San Bernardino Sun, the Redding Record Searchlight, the Half Moon Bay Review, The Reporter in Vacaville, the San Jose Mercury News, KGO-TV in San Francisco, the Palo Alto Weekly and the Berkeley Daily Californian.
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But today and tomorrow I’ll summarize the four main impressions gained over the two audits.

1. Small Is Dutiful

Generally speaking the smaller departments seemed to perform notably better than the largest. Police departments with 200 points or more (combining their legal compliance and customer service performance) were those in the cities of Banning, Coronado, Half Moon Bay, Lincoln, Rocklin and Santa Rosa. Only a few points below were Brentwood, Campbell, Davis and Redding. The biggest department with a score in this high range was the Contra Costa County Sheriff. Otherwise, some of the largest departments did not have impressive composite scores: Los Angeles County Sheriff (125 out of a possible 210), Riverside Police Department (126), San Diego County Sheriff (Vista and San Marcos stations—125), and San Francisco Police Department (110). One explanation might be that the smallest departments have much less crime to deal with, but then their records staff would normally be much smaller as well. At any rate, it is clear that a department need not be huge or even of medium size to do a first rate job in comp lying with the public records law and dealing with information requests courteously, professionally and promptly. On the contrary, departments toward the large end of the spectrum often have the farthest to go in meeting these standards. 



2. A Distrusted Public 

About half the departments audited demanded to know the auditor’s name, affiliation or purpose for requesting the information, or some combination of these disclosures. Making these revelations a condition for obtaining the kind of information requested here violates the Public Records Act. Departments can ask the purpose of the request in order to help the requester, but cannot insist on knowing. And yet that point either has not been included in many departments’ training or has been allowed to be forgotten. The result often unmistakably conveys distrust to the requester and may intimidate pursuit of the inquiry altogether. This “Who wants to know?” response is justified by some as necessary to keep criminals from getting information that could threaten someone harm or frustrate the successful completion of an investigation. But the Legislature’s solution for that concern is to allow departments to withhold certain otherwise public information based on either or both of those rationales, depending on the facts of the particular case. And in such rare instances the denial of access must extend to all requesters, including the press, and must not depend on the requester’s identity, affiliation or purpose. The Legislature has pre-defined the level of information all citizens are presumed to have a right to, and they have the right to remain silent about who they are and what they mean to do with the information. 



3. The Nosy Neighbor Myth 

By far most of the departments that refused to disclose any information to the requester who walked in and asked to learn more about a particular burglary (23 percent of those audited) did so on the mistaken belief that only victims are entitled to any substantial information at all about crimes—that others have no need to know and thus no right to know. This attitude is perfectly reflected in the following excerpt from a July 19, 2007 story in the Inland Valley Daily Bulletin:

Dorothy McKnight was concerned about the effects a Wal-Mart Superstore would have on her neighborhood and wanted to know the number of traffic collisions near the proposed site.                     McKnight, an Ontario resident, said she believed the streets around Mountain Avenue and Fifth Street were already prone to collisions and the store would exacerbate the problem. She said this week she called the Ontario police station for that information but was told it was private.
    McKnight said after she clarified she only wanted the number of collisions—not details about the parties involved—she was told she had to first fill out a form at the station.
    When she reviewed the form, though, McKnight said she was uneasy with the questions it posed, such as, why she wanted the information—so she hesitated.
    Police Officer Anthony Ortiz said citizens have a right to traffic and crime statistics. More information is not guaranteed, though, he said. If you're a victim or a party involved, you get all the names, details, etc.," Ortiz said. "But if you're just being a nosy neighbor down the street, you're out of luck."

True enough—you’re always out of luck with a law enforcement agency that doesn’t know the law.

Public Forum Law Week in Review: 11/2/07

(CalAware Weekly comprises this plus the previous three posts)

Free Press
    Gag denied   A judge has again denied a public employee union’s bid to stop the Daily News in Los Angeles from publishing members’ names, positions and salaries in a lookup database on its website.
    Police clashes   Law enforcement officers blocked news media coverage in several incidents in the San Diego wildfires, according to a report by the local ACLU; a San Diego Police Department spokesman responded that the police have the authority to protect evacuees from unwanted press interviews.
    Offending column   The Benicia Herald, a daily newspaper, has fired its editor for a political column he wrote that upset two heavily advertising candidates in next week’s city election.
    Shield veto threat   The White House is threatening to veto the federal shield law bill, H.R. 2102, if Congress passes it, which USA Today predicts is likely.

Free Speech
    Flame retardant   Statements posted to a website on homeowner association issues attacking an attorney’s professional integrity were merely “a private campaign of vilification” and not a matter of public concern meriting anti-SLAPP protection, ruled the Court of Appeal in an unpublished decision.

Open/Secret Government
    Paper trace   Senator Jim Bunning (R-KY) has put a hold on a bipartisan bill to reverse President Bush’s 2001 executive order giving presidents and former presidents more power to halt indefinitely the release of their White House records. The House-originating measure is authored by California’s Henry Waxman.  Meanwhile candidate Hillary Clinton, asked about releasing her husband’s papers, stayed true to message and said they’ll be available after being processed.
    Pumping irony   Contra Costa Times columnist Tom Peele’s reaction to Governor Schwarzenegger’s boast, in vetoing AB 1393, that “My administration's commitment to the public records act is unwavering"—“Really? Does the governor actually believe the things his staff writes in his name?” Meanwhile Schwarzenegger’s office has told the Daily Journal in Los Angeles (sorry for the link lack—its website is subscription only) that it will not identify those whom it consults for recommendations on the appointment of judges, although it has said it would release the names to the Assembly—by January.
    Land deal secrets   The Legislative Analyst’s Office has concluded after two years of research that the Department of Fish and Game and other California state agencies “keep too many documents secret when they buy land and do not have consistent standards to ensure the public is paying reasonable prices,” reports the San Jose Mercury News.

Public Information
    Day labor employers   The California Newspaper Publishers Association, the Los Angeles Times and the San Diego Union-Tribune have appealed a judge’s ruling barring the City of Vista from disclosing a list of those who have registered as an employer of day laborers.  The ACLU obtained a temporary restraining order in September against release of the names to protect the employers’ privacy.

Records Released Reveal . . .
A city official denied pension credit for time she never worked; an admired police chief’s retirement marred by an issue of possible pension-spiking; a legal aide to the Insurance Commissioner secretly helped regulated companies in their lawsuit against his boss; Long Beach subsidies for a summer Sea Festival run by a private association were wasted, according to an online news site.

Open Meetings
    A Fate Worse Than Indictment?  The Orange County DA won’t prosecute four members of the Capistrano Unified School Board who accepted his report that over a six-month period they discussed business unlawfully in closed session and otherwise violated the open meeting law dozens of times. But wait—OC Weekly reports that the county Republican Central Committee “did something unprecedented by unanimously voting to call for the resignations of four of its own elected officials who sit on the Capistrano Unified School District Board.”

Whistleblowers
    Dummy up!   The Bush administration isn’t the first to punish insiders who go public  with inconvenient facts.  But, James Sandler tells Salon, it’s the most ferocious in resisting Congressional efforts to protect them.