Tuesday, October 27, 2009

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.

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