Police Transparency

San Jose City Councilmember Pete Constant's office left me a message last week. I called back, and one of his staff wanted to confirm my contact information. I confirmed his office had my correct email address and contact information. Then, right before the end of the conversation, I was asked if my mom was the head of the household. I said yes--after all, what son doesn't think his mom rules the household? (And we all know if momma ain't happy, ain't nobody happy, right?)

I've been thinking more about Mr. Constant and his vote against police transparency. Basically, Mr. Constant was one of the deciding votes in a 6-5 vote overruling the Sunshine Task Force's recommendations on police records. When I asked him why he voted against police transparency, he indicated that he followed the lead of the police department and D.A.'s office, and they told him that residents' privacy interests could be negatively impacted. (At the time of the vote, Dolores Carr, who is married to a former SJPD officer, was the D.A.) It appears the police department and/or D.A.'s office may have been less than forthcoming with Mr. Constant, who seems to have accepted their opinions at face value. As I've written before, the Task Force's recommendation would not have negatively impacted privacy interests. In short, six Councilmembers--including Mayor Chuck Reed--voted against government transparency, even after some of them ran on a platform of government transparency.

In retrospect, I don't know why I was surprised to hear Mr. Constant follow the SJPD's lead. It's no secret that Mr. Constant--who will be term-limited out of his current Council position--has his sights set on the Santa Clara County Sheriff's position. To win that election, he needs the support of the police unions. Although Mr. Constant and his family are beneficiaries of multiple government pensions, Mr. Constant continues to be attracted to public service and/or government power. Why should we care?

America was founded on a system of checks and balances. A Councilmember is supposed to represent the people, not the police. If Mr. Constant didn't bother doing his due diligence when he was representing the people of San Jose, how will he act if he is in charge of the police? Although Mr. Constant deserves kudos for his generally high work ethic, I hope he has another chance to show us whether his loyalties reside with local police unions or San Jose residents. And I hope he--and Chuck Reed--get it right next time.

Sarah Palin, Oprah, and Cheers

I stayed up late watching a DVD, and when I turned off the television, Fox (Channel 2 here) was showing a Cheers episode. The title of the 1993 episode was "Woody Gets an Election." (Season 11, Episode 21) In this episode, Frasier convinces the hapless Woody Boyd--a genial but vacuous bartender--to run for City Council. Frasier's goal is to create an experiment proving voter ineptitude. Frasier first tells Sam Malone that a monkey could get 10% of the vote, but then tells Sam he'll go one better--he will bet that Woody Boyd can get 10% of the vote:

Look, all I'm saying is that when it comes to voting, people just shut off their brains. I submit we could put a chimpanzee on the ballot and garner ten percent of the vote.

Sam and Frasier make the bet, and we're off to the races. (Anti-Obama people will love Frasier's advice to Woody--just come up with something about "change," he says.) In the middle of the election, Frasier dreams that Woody will eventually move up in the political ranks, become president, and then blow up the entire world. Waking from his nightmare, Frasier convinces Woody to drop out of the race. Even though Woody tells the public he is quitting the race, he wins the election anyway when his wife announces she is pregnant. After Woody's successful election, a despondent, guilt-ridden Frasier believes he has brought about the extinction of the human race as we know it.

As I am watching this episode, I flip to another channel. It's a repeat of Sarah Palin's interview yesterday with Oprah. I keep watching the Cheers episode, and I start wondering whether I've swallowed the red pill ("You take the blue pill--the story ends, you wake up in your bed and believe whatever you want to believe. You take the red pill--you stay in Wonderland and I show you how deep the rabbit-hole goes."). I soon realize art is imitating life.

Some of Woody's comments could match up identically with Sarah Palin's words--just switch "hockey mom" with "farmboy" to eliminate the gender issue, and then go watch the Cheers episode. For example, Woody says plenty of folksy stuff about cleaning up city hall--he says he just knows what's on the farm, and as a simple farmboy, he wants to clean up the rats, because with the rats, you won't have a barn. The reporter--who later plays Roz on Frasier's own show--walks away, saying she's never heard such corny stuff, but she's inclined to believe Woody can pull it off. I started thinking about Sarah Palin's anti-corruption campaign promises and her folksy sayings, and the similarities between Sarah Palin and Woody stunned me.

In case you're wondering, Sarah Palin did a decent job in the Oprah interview. She came across as a nice, active mom who loves her family--just like the Woody character comes across as a decent, nice guy who loves his wife. As I watched the interview, I realized Sarah Palin believes that being a decent person is enough to run for office. In other words, if you're not a liar, not evil, and you believe in God, why can't you do good things in public office? It's sort of like asking,"Why can't Woody Boyd represent Boston well?"

Anything's possible, right? Except that these days, being a politician requires more than just being a good person. It means being able to interpret and write good laws. It means being smart enough to understand the intricacies of various legal procedures. It means having more than basic knowledge of American history and economics. It means being able to juggle special interests--public sector unions, corporations, small businesses, etc.--with doing what's right for the people. (San Jose Councilmember Pete Constant needs to do a better job in this regard. As an ex-cop, he did the police union's bidding and voted against government transparency, and then seems to have given me a bogus reason for voting against it. For more, see here).

Now, Sarah Palin might believe she can hire staff members who can handle all the tough, tedious details for her. But the culture of any institution starts at the top. If the leader lacks understanding and direction when it comes to details, the entire organization will eventually get sloppy. We've already seen that phenomenon with George W. Bush: someone interprets a Rumsfeld memo to mean that torturing detainees is perfectly fine. The CIA starts torturing the wrong people and then instead of coming clean, it tries to cover up its mistakes. Instead of complying with reasonable information requests, the DOJ starts finding technical reasons to deny them. And so on. We've already seen what happens when a nice, decent person gets into office. It's a total disaster. After experiencing the George W. Bush years, why would anyone listen to Sarah Palin? She's got as much credibility as Woody Boyd.

Fittingly, the final scene of the Cheers episode shows a nuclear bomb exploding. (Matt "She's Going to Have the Nuclear Codes" Damon would be proud.)

Pete Constant: Another Lying Politician?

Update on November 24, 2009: it's been several weeks since San Jose City Councilmember Pete Constant said he would provide additional information justifying his vote against government transparency. Even after I sent a reminder/email, no one from his office has contacted me. 

Update on October 27, 2009: after speaking with Councilmember Pete Constant, I need to add some comments to this post. 

First, I had complained his office did not return an email, but Mr. Constant indicated I may have used an incorrect email address. (The correct email address is Pete.Constant@sanjoseca.gov) 

Second, before you read my original post, which is below, I should provide some background. Mr. Constant voted against a Sunshine Reform Task Force recommendation that would have made it easier to access police records and statistics. Mr. Constant said he voted against the recommendation because he was concerned about victims' privacy and public safety. He specifically mentioned protecting the results of police investigations. He alleged that if the Council had approved the Task Force's recommendation "as is," then anyone would have been able to access details of police investigations, including personal information in identity theft reports. 

Also, as a former bank robbery detective, Mr. Constant told me he often included trade secrets--such as bank floor plans and vulnerabilities--in his investigative reports. One reason he did not vote to approve the Task Force's recommendation is because he believed the public, including potential criminals, would have been able to access such trade secrets. Mr. Constant also raised the issue of home robbery investigations and accompanying home inventory records, saying he wanted to protect residents from having their valuable assets revealed pursuant to a Public Records request. 

Sounds good, doesn't it? Except it's wrong. As the Task Force itself pointed out, Government Code section 6254(f) already addresses these concerns: 

Nothing in this chapter shall be construed to require disclosure of records that are any of the following: (f) Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the California Emergency Management Agency, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency...[and] nothing in this division shall require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer. 

When I mentioned this code section to Mr. Constant, he said that it was unclear whether the 6254(f) exemption would apply if the Council approved the recommendation. Mr. Constant defended his vote against improved government transparency by saying, "If I believe there is [even] a [slight] chance under the recommendation that victim rights could be compromised, then I can’t support it [i.e., the recommendation]." 

I was skeptical about Mr. Constant's belief that the existing 6254(f) exemption didn't address his concerns. I responded that if the Task Force's recommendation would have released investigative results, then I would have voted against it, too. However, the Task Force itself cited the 6254(f) exemption, which indicates it was not trying to remove the exemption. 

Also, it is common knowledge that local laws cannot trump state laws, only extend them, and you can't "extend" 6254(f)'s prohibition against disclosing investigatory reports--doing so would destroy the exemption itself. Mr. Constant said I was incorrect that the 6254(f) exemption would continue to apply, because the Task Force's recommendation would be extending rights under the Records Act, and the proposed extension of rights could be interpreted as eliminating the exemption for investigatory reports. 

I continue to disagree, but Mr. Constant said he would send me more information, so I will reserve judgment. [Update: as of November 24, 2009, I have received no further information from Mr. Constant or his office.] Still, once you see the quote I cited from the Task Force's report, which specifically cites Government Code 6254(f), it should be apparent that no reasonable person or judge would rule that the Task Force or Council intended to remove existing state law exemptions relating to police investigations. 

To offer support for his legal interpretation, Mr. Constant told me the Attorney General's(?) office, the Undercover Narcotic Officers' Association, and the D.A.'s office all told him they had issues with compromising investigations if the Council approved the recommendation. 

I asked Mr. Constant a final question: "What was ultimately decided regarding police records?" He said he would email me something that addressed my question soon, and we said our goodbyes. 

I think local law enforcement gave the "party line" to Mr. Constant, and he accepted it. Few government lawyers or police officers want to spend time figuring out how to shield potentially embarrassing information from the public. 

Right now, the police department can easily block information from the public. Under a "balancing test," explained below, the police may reject a request for records if they--in their subjective opinion--believe the request is improper. The police's rejection forces the requesting party to hire a lawyer and file a lawsuit, an option few people can afford. If, however, the Task Force's recommendation had passed, the public would be presumptively entitled to police statistics and reports not covered by a specific exemption. Of course, that's more work the police and government lawyers have to do, so they have an interest in telling Councilmembers the most far-fetched legal interpretation possible. It is still disappointing to think that any Councilmember would favor minority union interests over his/her own constituency's right to government transparency. 

By the way, Councilmember Sam Liccardo is a Harvard Law School graduate and a former D.A. He voted to approve the Task Force's recommendation. If there was a real problem with the task force's recommendation, wouldn't Mr. Liccardo have voted against it? 

In the end, government transparency is crucial to maintaining a reputable democratic republic. Therefore, if extending the law creates more work, so be it--the solution isn't to deny transparency, but to become more efficient in handling requests. 

Some color commentary: 

1. Mr. Constant was generous enough to speak to me for about 10 minutes, even though he had a cold and was coughing throughout the conversation. In fact, he told me he would probably be taking a sick day tomorrow. Kudos to him for responding to my emails and telephone call on the same day. 

2. Mr. Constant told me he would send me some information to further explain his rationale on the 6-5 vote. I specifically mentioned wanting some support relating to his belief that Government Code 6254(f) wouldn't apply if the Council passed the recommendation. If I get more information, I will update this post again. [Update: as of January 10, 2010, I have not received any information from Mr. Constant's office.]

SJPD to San Jose: You Want to See Police Records? Go Stick It Where the Sun Don't Shine

I can't believe I missed this--in a narrow 6-5 vote, San Jose City Council rejected greater transparency into police records and stats. The following six council-members voted against government transparency: Chuck Reed, Nancy Pyle, Pete Constant, Pierluigi Oliverio, Judy Chirco, and Rose Herrera. Remember to vote them out come election time.

The council voted 6-5 against the Sunshine Reform Task Force proposal. The vote came after almost an hour of public testimony and an even longer discussion by the council on the issue, proposed one year ago. Mayor Chuck Reed voted against the proposal along with Vice Mayor Judy Chirco and council members Nancy Pyle, Pete Constant, Pierluigi Oliverio and Rose Herrera. [SJ Merc, by Tracy Seipel, 10/21/2009]

While most residents appreciate our city's rank-and-file officers, it is incredible that our city council can't appreciate transparency when it comes to a police department that has cost local taxpayers millions of dollars in legal settlements and that has been accused of using excessive force without due cause.

Speaking of police officers, wouldn't it be nice to know whether SJPD Officers Kenneth Siegel, Steven Payne Jr., Jerome Smith and Gabriel Reyes have attacked unarmed college students before? (These officers were involved in a much-publicized beating of SJSU student Phuong Ho.) Perhaps, but that's nowhere near the level of detail the San Jose Task Force initially recommended--at first, they only wanted general statistics:

A quarterly report on the SJPD's use of force in arrests, including the race and ethnicity of the person arrested, some geographic designation of the location of the arrest, the reason for the use of force by category...whether a warning was given prior to use of force, the type of force used by category (for example, firearms, Taser...), and the injuries sustained by the arrested party and officer, if any.

This recommendation may have been a response to the SJPD arresting numerous drunk persons, many of them Latino, in downtown San Jose. Later, the Task Force recommended that the SJPD and other local government agencies stop using a legal technicality to prevent the release of information:

Below, I am suggesting a new approach to the deliberative process issue. I continue to consider it critical that the city abandon its use of the deliberative process exemption, as Milpitas and San
Francisco have done, because the exemption undermines the very foundation of open government laws: The deliberative processes of government are precisely what citizens have a right and a need -- indeed, a responsibility -- to witness. If there is a vigorous debate among city staffers about the best approach to a controversial issue, that debate needs to be brought into the open so the residents of San Jose can participate in it--not cloaked by a dubious privilege.

The Task Force seems to believe the government is relying on technicalities to prevent full disclosure and is taking small steps to improve transparency. Seems simple enough so far, right? Later on, however, when the Task Force tries to extend transparency to police records, things get interesting. I wish I was a journalist covering the courthouse beat, but I have to tell you upfront I had a hard time figuring out exactly what happened. Although I read through some of these links, I am still a little confused, so take the rest of this post with a grain of salt.

First, let's give readers some basic legal background so they can understand the goals of the "Sunshine" Task Force. Ordinarily, a government agency may reject a citizen's request for information under a "balancing test": the "Balancing Test is a general exemption in the California Public Records Act (CPRA) that allows the City to withhold records only when 'the public interest served by nondisclosure clearly outweighs the public interest served by disclosure.'"

While the language seems clear, it is subject to wide interpretation. At the end of the day, some anonymous government employee gets to decide whether your request "clearly outweighs the public interest," and if s/he is against disclosure, s/he can reject your request under the "balancing test." (Although the balancing test was intended to balance the right to keep personal identifying information private vs. the public's right to a transparent government, in practice, it is often used to arbitrarily deny requests for information.)

It appears the "Sunshine" Task Force recommended only selective or minimal use of the arbitrary, subjective "balancing test" exemption. More specifically, the Task Force recommended replacing the subjective "balancing test" with other specific exemptions. In other words, either a public record fell under a specific exemption designated by the Task Force, or it didn't--and if it didn't, then the records had to be released. Problems arose when the Task Force extended its recommendations to police department records. Here is the specific section relating to police records:

Police records are already the subject of pervasive statutory exemptions (Government Code sections 6254(f) and 6254(k), Penal Code section 827 et seq., Government Code section 1040, etc.). They are also the subject of specific provisions of the proposed Sunshine Ordinance. There is no need for a balancing test.

The Task Force's recommendation is not to apply a balancing test when police records are involved. As I understand it, the recommendation, if implemented, would allow easy access to police records and statistics. For example--assuming the recommendation is accepted--if you request information asking for the number of people the SJPD arrested on September 2, 2009 on Market Street, the police must do its best to provide you with the information. It cannot rely on the "balancing test" and tell you to stick your request where the sun doesn't shine. (At the same time, the request is very broad, so the SJPD might charge you quite a bit of money for the staff research time or require you to be more specific. Most requests are usually very simple, like, "Provide me with all police reports from 2002 to 2009 relating to MY NAME.")

Why did the Task Force decide not to apply the balancing test exemption to police records? The Task Force reasoned that the law already provides plenty of exemptions that protect information relating to police records, so there is no need for additional layers of legal procedure. However, it appears that when the SJPD realized they might have to release records that included names of police officers or other information that would allow the public or a newspaper to verify their data, they probably raised holy hell.

After getting complaints from the police union, the City Council pushed back, saying it wanted to protect crime victims' personal information. This is a sensible concern, if applied to crime victims. After all, if I got mugged, I wouldn't want unfettered access to my name and contact information in a police report. The Task Force apparently agreed and created more restrictive guidelines for releasing information about crime victims; however, that wasn't good enough for the SJPD, who continued to push against open disclosure of records. The Council eventually sided with the police union, allowing them to use the arbitrary "balancing test" to deny access to police records.

Later on, it appears the Task Force tried to placate concerns about crime victims' privacy by emphasizing an additional factor: "the right to privacy afforded to victims by the California Constitution." However, the Council added two words to the Task Force's revised recommendation--"and others"--perhaps to further prevent access to records relating to police officers:

“…including the right of privacy afforded to victims and others by the California Constitution.”

Thus, it appears the Council allowed the SJPD to avoid releasing information relating to police officers (i.e., "and others") instead of addressing the original concern, which was to ask the SJPD to protect crime victims' information.

Thanks to the 6-5 decision rejecting some of the Task Force's recommendations, there's no sliver of sunshine when it comes to police records and statistics. Good night, and good luck.

Bonus I: Earlier this month, a court ordered Santa Clara County to pay a free speech group $500,000 for failing to disclose public records. See here.

Acting Santa Clara County Counsel Miguel Márquez "said that cost of the legal settlement is not expected to hurt programs in a county confronting massive budget shortfalls. 'I don’t think $500,000 in and of itself is going to impact programs.'”

Bonus II: Kudos to Bert Robinson, Assistant Managing Editor, San Jose Mercury News. He seems to be very active on the Task Force.

Update: follow-up with City Councilmember Pete Constant HERE.