Tuesday, October 27, 2009

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.]

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