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Journalists Fight Foot-Dragging by Oakland Police on Records Requests
by Maria Dinzeo, Courthouse News Service
Saturday Sep 5th, 2020 1:27 PM
Citing a pattern of consistent stonewalling, investigative journalists have taken the Oakland Police Department to court to force it to comply with state public records laws.
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OAKLAND, Calif. (CN) — Citing a pattern of consistent stonewalling, investigative journalists have taken the Oakland Police Department to court to force it to comply with state public records laws.

Two petitions brought in Alameda County Superior Court claim the department routinely ignores public records requests, professing a commitment to transparency even as thousands of open Public Records Act requests languish in their system.

One petition, filed Aug. 19 but made available by the court Wednesday, claims the department offers only a standardized automatic response to thousands of requests — if it replies at all.

The Oakland Police Department, like any other government agency, must comply with the California Public Records Act’s strict response deadline of 10 days, plus an additional 14 days if it invokes a specific exemption. But the department is also required to “promptly notify the person making the request of the determination and the reasons therefor” by disclosing whether it has responsive records or whether it will be withholding them under a statutory exception.

The journalists say the department has done neither, adding that it also flouts the Sunshine Ordinance enacted by Oakland to bolster the CPRA.

“In the last two years alone, OPD has not provided a sufficient determination in response to approximately half of its PRA requests,” says the petition brought by East Bay journalists Scott Morris, Sarah Belle Lin, Brian Krans, the watchdog group Oakland Privacy and its research director Michael Katz, all of whom regularly investigate the department.

Instead, the department either ignores the request or issues a “boilerplate” response: “Our agency is in the process of reviewing your requested records to determine what information can be released in accordance with the California Public Records Act. All records must be reviewed and in some cases redaction may be necessary. Due to the department’s limited staffing resources and numerous public records requests received, our agency needs additional time to respond to your request. All records that are not exempt with be provided within 30 days.”

But the petitioners say that “despite these clear mandates, OPD routinely and systematically ignores the law,” adding the department regularly extends its own self-imposed 30-day deadline without explanation. 

“OPD thus lulls requesters into a false sense that it is actively compiling records when in fact it is not,” the petition says.

“It’s demoralizing,” said independent Oakland journalist Scott Morris. He’s been a reporter in Oakland for 10 years, and his work has appeared in East Bay Express, Oakland Magazine, Berkeleyside, and The Appeal. In an interview Tuesday, he said the department has always been slow to respond to his request for documents.

“They might send back some messages and say they’re short-staffed, but honestly it can take well over a year sometimes to get any responsive records out of them — and that requires me haranguing them constantly.”

Attorney Sam Ferguson with the Meade Firm is representing Scott and a proposed class of what could be a thousand people and organizations who have open public records act requests with the department. 

“At some point the OPD ignores people for long enough that they just give up asking for records and that’s something we’ve heard over and over again,” Ferguson said.

“Some of the plaintiffs in our lawsuit happen to be particularly diligent about following up but that’s not the way the PRA is structured. The onus is not on the requester to make sure the agency is complying with the law.”

In 2018, Oakland switched to a new online portal called “NextRequest,” for records requests, allowing the public to view and track their requests and filter them between “open” and “closed.”

Morris tweeted at the city after it launched, saying the new system appeared to be “no better and actually less functional” than the old one. The city tweeted back, “While we loved RecordTrac, we love transparency more. NextRequest provides ongoing maintenance, support, upgraded and added features and training for city staff that helps us to continue to improve our process.”

The petition, however, notes over 5,700 requests remain open as of last month, going back as far as 2014.

“In the vast majority of these cases, OPD has either ignored the request or provided requesters with an inadequate boilerplate response. Worst of all, OPD has not collected or produced documents in response to most open cases,” the petition says.

Morris said the department’s obstruction prevents transparency and discourages reporting. One request he filed this past April asked for basic information like “the full name and occupation of every individual arrested” over a 10-week period, including the circumstances of their arrest. All of this is releasable information under the Public Record Act.

“What I’m asking for is directly from statute. It’s actually a very simple request, and other police departments were able to fulfill it in days,” he said. “The OPD is still dragging their feet on this, telling me they need more time to locate the records.”

In the past, he said, the department has responded only after constant pestering. “I know if I stopped, they would ignore me,” he said.

The class action’s ultimate goal is not to fulfill individual requests but to compel permanent changes in the way the department handles public records. “Filing lawsuits for records is one thing, but the reason we’re approaching this as a class action is we want change at the OPD,” Morris said.

The hunt for police misconduct

Senate Bill 1421 is supposed to put an end to the secrecy with which police departments treat their internal misconduct files by finally making public police personnel records, including ones on disciplinary proceedings previously shielded from release under Penal Code section 832.7. 

A separate petition says journalists Ali Winston and Darwin BondGraham are still waiting on 31 records requests disclosable under SB 1421. 

The pair requested the records as source material for a book they are writing on the history of the department. 

“The agency just doesn’t seem to give a shit. They are doing everything they can to ignore these requests and pretend they don’t have an obligation under state code to fulfill them,” said Winston, who has reported for The New York Times, Reveal, East Bay Express and other outlets on law enforcement, criminal justice and surveillance.

The records they requested nearly two years ago run the gamut from sexual assaults, shootings by police officers, a scandal involving officers having sex with an underage girl and records related to the infamous “Riders” civil rights case where four officers were accused of kidnapping, beating, robbing, and planting evidence on residents in West Oakland. That case resulted in a $10.9 million settlement and costly federal oversight by a court-appointed monitor.

“We’re talking about egregious civil rights violations, incidents where cops have shot and killed people and been rehired, incidents that have cost Oakland tens of millions of dollars,” Winston said. “It’s pretty obvious that they are not in favor of transparency and sunlight. They have spent more time posting on social media than fulfilling these requests even though they have a dedicated records division. We have no recourse. We have to sue.”

The petition Winston filed along with The Oaklandside news editor BondGraham says the department has continuously delayed releasing the requested documents in 30-day increments. While their petition was filed and date-stamped Aug. 17, it was only made public by the court this week.

“Over the course of 20 months, OPD has extended its ‘deadline’ 15 times, rendering the estimated date of production a ruse,” the petitioners say. “On information and belief, OPD has never intended to meet any of its 15 self-imposed deadlines. Instead, it merely sends out pro forma extensions once a month, lulling petitioners into a false sense that OPD is diligently working on the requests. During this time, OPD has released only snippets of information responsive to five of petitioner’s 31 requests.”

A lot of the cases for which Winston and BondGraham have requested files were investigated as homicides, Winston said, so the department should still have them. He and BondGraham are well-known to the department, he added, as both have reported extensively on the police for years. 

“We’re not strangers to the department. They damn well know who we are,” he said, adding OPD has responded to his records requests in the past. “I’ve done PRA requests before and I have gotten records back from the OPD. It is telling to me though that now that we file requests under SB 1421 the shutters have been slammed shut.”

The Oakland Police Department referred Courthouse News to the City Attorney’s office, which said through a spokesperson that it “has no comment at this time.”

The case mirrors one brought by the First Amendment Coalition and public radio outlet KQED in 2019 against the California Department of Justice. The attorney general’s office argued in that case that gathering and redacting “potentially millions” documents for disclosure would be an onerous burden.

This past January, an appellate panel rejected that argument and affirmed a state judge’s order requiring the California Department of Justice to uphold the law.

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