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

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.
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: 11/18/07

Images1(CalAware Weekly comprises this plus the previous two posts)??

Free Speech?

March on Your Own     The nongovernmental organizers of a Veterans Day parade in Long Beach excluded an antiwar vets’ group from its ranks.

The Stamp Act    Students at Fresno City College complain that they have to get an official stamp of approval on leaflets to be distributed on campus.

Records Released Reveal . . .?

State officials’ explanations about aircraft unavailable to fight the Southern California wildfires did not always match the facts; how Pasadena City Council members use e-mail sent to and from their new city-bought computers during council meetings.

Open Meetings?   

Browse council from home    Union City residents (or anyone else who cares) will soon be able to get a live webcast of city council and planning commission meetings, or search an archive and play the video of a past meeting.

Public Information

The taxpayers’ tab        San Bernardino County Supervisors sometimes refuse to disclose whom they met for meals and drinks charged to their county credit cards, or why. More.

Gone with the draft 
      After prodding the Gilroy City Council approved release of the most recent drafts of a consultant’s report on police services—but two earlier drafts have disappeared.

Covering Candidates' Paper Trails

Hillary Clinton’s White House experience is documented in her husband’s presidential papers, which they claim are at the mercy of the National Archives to release from his Presidential Library—and then only on the archivists’ schedule, which they insist they can’t accelerate.

Whatever the Church Lady might make of those protestations—Barack Obama, as quoted in the Chicago Tribune, and Judicial Watch in two federal court lawsuits, for example, are skeptical—the fact remains that the automatic filter that the presidential papers archiving process puts on the official record of those running for office is a problem that needs correcting, and it’s mirrored in a California law that needs equal attention but may never get it.

There are actually two potential barriers to access to ex-presidents’ papers by political researchers, journalists or more impatient historians. The first is an Act of Congress—actually a succession of them—and the second is an executive order issued by President George W. Bush early in his first term.

Under the original provisions of the Presidential Libraries Act, ex-presidents would build their own libraries with privately donated funds and then voluntarily turn over those buildings—and the bulk of the White House records the ex-presidents had generated and taken with them—to the National Archives.

But, as explained in an essay marking the 1955 law’s 50th birthday, there have been some imperfectly resolved issues surrounding the fundamental question of who owns presidential papers—the former chief executive or the American people.  After the crisis in which former President Nixon declined to donate his papers to federal custody, President Jimmy Carter signed into law the Presidential Records Act of 1978.

This act declared that, starting with the next presidential administration, the official papers of the presidency would automatically become government property, would be transferred to the National Archives at the end of the administration, and would be subject to public request and disclosure five years after the end of the administration. A President would still have to utilize the Presidential Libraries Act if he wanted to build or donate a library to house the presidential records, which all Presidents have continued to do.
    The 1978 act, however, requires that the National Archives follow special procedures to allow both the former and incumbent Presidents to review the records before they are released to the public. These procedures, which were revised in 2001 under Executive Order 13233, ensure that the former President has a full opportunity, as required by the Supreme Court, to assert possible claims of executive privilege.

A federal judge has recently held invalid that portion of the order that allowed former presidents and vice presidents to review their records sought from the Archives under the Freedom of Information Act.  Meanwhile an effort in Congress to legislatively undo the order is hung up in the Senate by a hold placed by a single Senator who will not state his reasons for the obstruction.

In California, an exemption from disclosure under the California Public Records Act allows ex-governors to bar public access to their papers, transferred to the State Archives, an institution under the administration of the Secretary of State, for the rest of their lives. Government Code Section 6268 states that the records of a former governor—even a recalled one—must be transferred to the Archives, but that he or she, acting in writing, “may restrict public access to any of the transferred public records, or any other writings he or she may transfer, which have not already been made accessible to the public,” but access “shall not be restricted for a period greater than 50 years or the death of the Governor, whichever is later,” and papers concerning applications for clemency or extradition can be withheld for only (!) 25 years after the cases are closed.

Accordingly, for example, if either Gray Davis or Arnold Schwarzenegger were to again seek some public office, he could instruct the State Archives keep the official papers of his administration out of the public’s reach. Davis may have already done so, whether or not he contemplates resuming public life.

Section 6268 is bad policy, creating a post-executive privilege to plough under one’s record at the very time when it may be of the greatest significance to the greatest number of people.  As such, it is a perk ripe for reconsideration, but is unlikely to be repealed so long as a governor has enough legislative support for an override-proof veto.

Classifying the Phone Book

Sometimes it’s hard to tell whether most proposals to make speech or open government practices illegal are just silly or actually sinister.  Is the gag reflex—that is, the reflex to gag someone else—the product of a photophobic anxiety that is well-meaning but misinformed about the law, the facts or both—“If this gets out the sky will fall”? Or is it the result of a deliberate attempt to suppress information or even curiosity about embarrassing if not incriminating anomalies or arrangements— “If this gets out the game is up”?

(To find out, it would be helpful to embed source taggants into all legislation so that the actual authors of each  element of a bill could be traced back and identified for purposes of credit or otherwise, answering the question we so often have, especially with Congressional output, “Who put that in the bill?”  If taggant seeding is worth requiring in order to ease finding out who purchased certain ammunition or explosives, it’s certainly worth doing to discover the parent of would-be or actual laws with much wider and more continuing destructive potential.)

In any event, a prime example of an idea that’s at least silly if not sinister is a provision in the Senate version of the pending omnibus Farm Bill that would create civil and criminal penalties for the disclosure of information gathered in the U.S. Department of Agriculture’s developing National Animal Identification System (NAIS).

NAIS is USDA’s work-in-progress technical response to the nation’s limited experience with Bovine Spongiform Encephalopathy—“mad cow disease”—and the challenge of tracing the origin of sick animals to allow effective meat recalls and other public health measures.

A year ago one of the secrecy issues surrounding this regulation was addressed with Governor Schwarzenegger’s signature of SB 611 (Speier) which, as described by Consumers Union at the time,

allows California public health officers to notify the public of the names of retailers that receive USDA-recalled meat and poultry, so that consumers can better protect themselves from food-borne illnesses.
    In 2002, California’s Department of Health Services (DHS) signed a secrecy agreement with USDA, agreeing not to release the names of the stores and restaurants where tainted, USDA-recalled beef and poultry have been shipped and sold. Federal and California state agencies maintain that secrecy is necessary in order to protect the proprietary interests of the beef and poultry industries. But eighty percent of Californians believe that the public should be told the names of retail stores and restaurants that receive and sell potentially contaminated, USDA-recalled beef and poultry, according to a 2006 Field Research Corporation survey.

As for the current Farm Bill proposal, there are two serious problems.  The first is that how it’s handled—simply creating liability for the disclosure of government-held information without expressly making the information exempt from disclosure under the Freedom of Information Act—runs contrary to another pending major FOIA reform bill. The OPEN Government Act of 2007,  which the Senate passed in early August, says that when a bill would make information exempt from FOIA it should say just that and put the public on notice of the erosion.

The second problem is the overkill.  By penalizing any disclosure of any NAIS information other than by the Secretary of Agriculture to certain other officials or agencies for certain official purposes, the language would go “way beyond most existing law in imposing disproportionately harsh penalties for press activities protected by the First Amendment of the U.S. Constitution.”

Those words are from a letter protesting the secrecy provision sent to Senators by OpenTheGovernment.org and signed by Californians Aware and 27 other, mostly national, public interest and journalism organizations.

A major backer of the proposed secrecy is the National Cattlemen’s Beef Association—the trade group that tried to sue Oprah for product libel for raising mad cow concerns about the nation’s beef supply on her show.

The silly element is a different kind of overkill.  As pointed out in an e-mail by Mary Louise Zanoni, an upstate New York lawyer and leading critic of USDA’s animal tracking plans as a whole, the department currently has no sensitive information in its database, only voluntarily submitted contact information.

There are three potential data collections related to NAIS, but only one is a government database.
     1.  The government database is the National Premises Information Repository, and that is the database that, by USDA’s own admission, contains only "phone book" information namely, a business name, contact person’s name, address, and phone number.
     The other two potential databases are both private databases:
     2.   Lists of individual animal ID tags assigned to particular livestock owners, which will be maintained by the companies selling the tags; and
     3.  "Animal tracking databases," which, like the tag databases,  will be created and maintained by private companies (these databases will store livestock owner’s reports of movements or sales, etc., of individual livestock).
     Note that the whole federal system is voluntary.  . . But under the way NAIS is set up, the fact that the records in databases nos. 2 and 3 above are in private hands would mean that those databases are not subject to FOIA requests anyhow. . .
      So there is no reason at all to give a FOIA exemption to basic contact info, and in fact giving such an exemption would overturn well established FOIA caselaw and thus be a very bad development in the history of open government in the United States. 

Ms. Zanoni’s phone book analogy is apt, and a good illustration of the silliness dimension too often found in secrecy policy.  While the intelligence official who suggested the other day that the 9/11 era makes anonymity from government awareness an outmoded luxury staked out one dubious extreme, to say that basic directory information about a category of business is such that only government may use it probably represents the other equally dubious extreme. A federally maintained list of cattle ranches—and an opt-in list at that—is neither the first step on the road to fascism nor a data file too sensitive to let the public see.

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

(CalAware Weekly comprises this plus the previous two posts)??

Open/Secret Government ? 

Stem cell agency at 3    On its third birthday, says an observer, the California Institute for Regenerative Medicine’s penchant for closed-door grant reviews and secrecy still screens much of the institute’s most important decisions from public view.

CSU Foundation’s perk loans   
California State University President Alexander Gonzalez got generous loans from a campus-related foundation that insists it’s a private corporation and won’t disclose where the money came from.

A cloudy sunshine record   
      An Associated Press report shows Governor Schwarzenegger opposing open government reform as often as not despite his campaign pledge for transparency.

Free Press

Latex limit    The editors of California State University, Fullerton’s Daily Titan are upset because the university will not allow them to distribute condoms in the November 14 issue. ?   

Free Speech? 

Muzzling cops    Police watchdog Mary Shelton of Riverside is among those quoted in a Reason magazine story on the special problems that may arise when law enforcement officers sound off online.

Gagging students    A federal magistrate finds unconstitutional the use of a campus speech code to pursue students who stomped on a Muslim flag during a demonstration.    

Records Released Reveal . . .?

Who said what to UC Irvine Chancellor Michael Drake to get him to rescind—or then renew—his invitation to a “controversial” constitutional scholar to head the campus’s new law school; the San Francisco Mayor Gavin Newsom’s plan to offer a power plant funds and help to find a new location.

Open Meetings?   

No need for comment    The Santa Clara County DA finds no Brown Act violation in the denial of public comment on a matter that had been dealt with at two prior Los Gatos Planning Commission meetings.

An “innocent” violation
      The Riverside County DA finds that an e-mail discussion among three of county supervisors was not a deliberate breach of the Brown Act and was cured by a later open discussion.

Open Courts

Sealed justice study    UCLA Law School and the Rand Corporation have launched a joint venture to study secrecy in the nation’s civil justice system.

Secret evidence    Prosecutors will be permitted to secretly present certain recorded surveillance data to a jury in the forthcoming trial of two former officials of the American Israel Public Affairs Committee (AIPAC) who are accused of leaking classified information.