Audit Report

Public Access to Law Enforcement Information

Background: In December 2006 CalAware conducted an initial audit of the public information practices of 216 police, sheriff’s and CHP offices statewide and found most of them failing in several basic respects. Contrary to the California Public Records Act, most agencies demanded that the requesters state their identity, affiliation and purpose, and even then did not provide the basic crime or arrest information the requesters were entitled to. Written requests for more extensive information were too often answered later than the law allows, or not at all.

The October 2007 follow-up audit, checking on about half the agencies visited last year—and a few for the first time—was to see what if anything had changed. In the intervening months, CalAware and at least one law enforcement management association had offered training workshops for interested officers and departments, and there was some evidence of internal training conducted by certain agencies.

Rationale for Requests/Scoring: What follows is the legal basis, reasoning or both underlying each request or other tested item, and the score point deduction for failing to satisfy that request or item.

Legal Compliance/Customer Service

As a concession to complaints that the first audit had faulted agencies for this or that failing in CalAware’s unofficial standards for customer service and left the impression that such standards were imposed by the law, the second audit scored legal compliance and customer service separately. One hundred points were assigned to each category as a starting position, and then points deducted for certain acts or omissions. Accordingly, while a perfect composite score would be 200, a 100 percent score in legal compliance would not be affected by a low score in customer service, and vice versa.

Also, in the customer service category, an agency could earn five points extra credit each for turning around its response to the written request within five days—instead of taking 10 days, or even extending the response period by another 14 days as sometimes permitted by law—or by posting its public records access policy in a place in its office visible to requesters. The highest possible composite score would thus be 210.

The Oral Request

The walk-in oral request tested the ready availability to unidentified non-media requesters of basic, early information about recent crime in the community. To keep the exercise simple and focused, auditors used leads in newspaper stories or a department’s own website or crime log to choose a particular burglary reported in recent days, and then asked for all information about that burglary that was legally available to a member of the public—not as the victim but as an inquiring citizen, since determining how uninvolved, non-journalist citizens were treated when they asked for information was the point of the audit.

The crime report information open to the public generally consists, in the words of Government Code Section 6254, subdivision (f), paragraph (2), of “the time, date, and location of occurrence, the time and date of the report, the name and age of the victim” (other than certain sex or abuse crime victims), “the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved.”

Sheriffs’ and Police Departments: Legal Compliance

The scoring for legal compliance with the oral request had two components. First, points were deducted if the requester was forced, in order to get any information, to make certain disclosures about himself or herself.

Name5 points deducted
Affiliation5 points deducted
Purpose5 points deducted
Photo ID15 points deducted

The law neither requires nor permits access to the kind of crime information requested in this audit to be conditioned on the requester’s providing such self-disclosures.

Secondly, points were deducted for each item of crime information that the department failed to provide the requester.

Time of incident 2 points deducted
Date of incident 2 points deducted
Location of incident 2 points deducted
Time of report 1 points deducted
Date of report 1 points deducted
Name of victim 4 points deducted
Factual circumstances 4 points deducted
Property stolen if any 4 points deducted

These itemized point deductions were made only if the department released some of the information on the list. If any and all access to this information was denied, there was a 10 point deduction.

California Highway Patrol Offices: Legal Compliance

As with sheriffs’ and police departments, the same range of points were deducted if the requester was forced, in order to get any information, to make certain disclosures about himself or herself.

But the CHP offices were asked for arrest rather than crime information, and point deductions were as follows.

About the arrestee:
Name 2 points deducted
Date of birth 2 points deducted
Occupation 1 point deducted
Sex 2 points deducted
Physical description 2 points deducted
About the arrest:
Time, date, location 2 points deducted
Factual circumstances 2 points deducted
Other:
Time and date of booking 2 points deducted
Tim and manner of release,
or where arrestee is held
2 points deducted
Amount of any bail set
Charges, including any
1 point deducted
outstanding warrants, parole
or probation holds
2 points deducted

These itemized point deductions were made only if the department released some of the information on the list. If any and all access to this information was denied, there was a 10 point deduction.

The Oral Request

The walk-in oral request tested the ready availability to unidentified non-media requesters of basic, early information about recent crime in the community. To keep the exercise simple and focused, auditors used leads in newspaper stories or a department’s own website or crime log to choose a particular burglary reported in recent days, and then asked for all information about that burglary that was legally available to a member of the public—not as the victim but as an inquiring citizen, since determining how uninvolved, non-journalist citizens were treated when they asked for information was the point of the audit.

The crime report information open to the public generally consists, in the words of Government Code Section 6254, subdivision (f), paragraph (2), of “the time, date, and location of occurrence, the time and date of the report, the name and age of the victim” (other than certain sex or abuse crime victims), “the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved.”

Sheriffs’ and Police Departments, California Highway Patrol Offices: Legal Compliance (Copy fees)

Finally, all departments and offices were given a deduction of 10 points if they charged more than the direct cost of duplication for full crime and accident reports, or copies of videotapes, audio tapes or photographs. The amounts of these fees are reported, agency by agency, but did not result in any additional progressive point deduction.

Sheriffs’ and Police Departments, California Highway Patrol Offices: Customer Service

The scoring for customer service response to the oral request including the following items and point deductions.

Staff courtesy 2 points deducted
Staff helpfulness 2 points deducted
Referral to another office
up to three blocks away
2 points deducted
Referral to another office
¼ to two miles away
4 points deducted
Referral to another office
two to five miles away
6 points deducted
Referral to another office
five to 10 miles away
8 points deducted
Referral to another office
more than 10 miles away
10 points deducted
Delay of 21 to 40 minutes
in fulfilling the request
5 points deducted
Longer than 40 minutes
in fulfilling the request
10 points deducted

The Written Request

The written request tested the availability of two types of information. First it asked to be given the formula or calculation by which agencies arrived at their charges for copies of crime reports available only to victims, of accident reports available only to those involved, and for copies of videotapes, audiotapes and photographs. Second, it asked for the actual charges for copies of each type of document. Very few departments answered the first question and it was not scored.

Legal Compliance
On the other hand, auditors determined by phone requests, checking websites, etc. the per page charge for general public records copies available to anyone. These charges, by law restricted to the “direct cost of duplication,” led to point deductions if they exceeded 25 cents per page, namely:

26 to 50 cents per page 5 points deducted
51 to 99 cents per page 10 points deducted
One dollar or more per page 15 points deducted

Another basis for scoring all departments and CHP offices on their reactions to written requests was whether they failed to make any response at all or provided information that was not responsive to the request, despite the auditor’s efforts to clarify what was being sought, in which case 10 points were deducted.

Customer Service
Finally, as a customer service measure, points were either added as a bonus or deducted, depending on how quickly the agency responded:

Within five days 5 points added
More than 10 days 10 points deducted
Grading Scale
100 = A+ 80-82 = B- 63-67 = D
93-97 = A 78-79 = C+ 60-62 = D-
90-92 = A- 73-77 = C ≤59 = F
88-89 = B+ 70-72 = C-
83-87 = B 68-69 = D+

Conclusions

The October audit (a second visit for most agencies) was far simpler and less challenging than the December 2006 audit. Legal compliance was reported and scored separately from customer service. None of the items requested was an exact duplicate of those on the first audit. Accordingly, no straight-line comparisons can be made, but several conclusions are inescapable, especially when taking into consideration the auditors’ experience as reflected in their narrative reports.

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—or at least the ill-informed stated conviction—that only victims are entitled to any substantial information at all about crimes—that others had 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.”

4. 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 survey 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
records generally
Crime report fee Accident report fee
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 rates, 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 $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.

Summary
It is 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 in October 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, but at least one law enforcement professional organization discouraged its members from participating. It is not hard 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 to suggest that there is no shortage of training exemplars in the law enforcement community around the state. If there is some way that the best performers could help train and bring along the rest, one could not ask for a better solution. Meanwhile, departments assuming that they can charge citizens more than the direct cost of duplication for crime and accident reports, tapes and photographs need to stop simply taking consultants’ recommendations for these inflated fee levels and consult their legal counsel. A class action lawsuit to recover years of fee overcharges could be extremely costly.

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