Public Records Plumb The Depths Of Illinois Law Enforcement's Accountability Black Hole

from the regular-rogues-gallery-of-[lol]-public-servants dept

The Chicago Police Department isn't willing to police itself. That much is apparent from the actions of its officers, which includes the department setting up an inner city "black site" where arrestees were separated from the rights and representation in order to coerce confessions.

Nonexistent oversight has led directly to horrific outcomes, like unjustified killings and -- in just one jaw-dropping stat -- 100 misconduct accusations resulting from a single SWAT team raid of a wrong address.

Will it ever get better? It seems unlikely. In Illinois, police accountability isn't even an afterthought. Some reforms were passed earlier this year but with a large concession to police departments: a partial burial of officers' misconduct records.

At the same time that the 2021 law expanded the information in the misconduct database and required local departments to check it, a last minute amendment closed the database to the public and courts.

That loophole is on pg. 669 of the text. It reads: “The database, documents, materials or other information in the possession or control of the Board that are obtained by or disclosed to the Board pursuant to this subsection shall be confidential by law and privileged and shall not be subject to discovery or admissible in evidence in any private civil action.”

That's a pretty big loophole. There's a workaround, but it requires parties to approach individual law enforcement agencies to obtain these records, rather than simply get them from the state's Training Standards Board, which is charged with collecting them from all over the state. A little secrecy goes a long way. Records can still be obtained, but it all but makes it impossible for outsiders to quantify how much misconduct is being reported across the state or how much of that misconduct is resulting in punishment.

That's the way the police like it. Cops in the state -- especially in Chicago -- are tough on crime… unless it's criminal acts or rights violations committed by officers. The Pulitzer Center has obtained a number of records from across the state via public records requests, which shows how often officers walk away from sustained allegations and criminal charges.

Eighty-one Chicago police officers lost their badges over the past 20 years, but only after being investigated for 1,706 previous offenses – an average of 21 accusations per officer.

When law enforcement agencies say some horrible thing in the news is the result of a "bad apple," they're referring to officers like these ones. But agencies are obviously fine with having bad apples floating around their barrels. Bad apples create more bad apples. The simplest thing to do would be to send these officers packing when it becomes apparent they can't be trusted. Somehow, it is always anyone but police officials pointing out the worst of the worst, months or years after sustained damage has been done.

This is what Illinois residents' tax dollars are paying for:

From 2000 to 2020 law enforcement officers in Illinois kept their badges even if they engaged in domestic abuse, sexual harassment, racism, perjury, most misdemeanors and other offenses unbecoming of a police officer.

Over the entire year of 2020, Illinois decertified two officers – one for theft and the other for an offense labeled “other,” an ambiguous category occasionally used in the state’s decertification records.

From Jan. 1, 2000, to Jan. 1, 2021, Illinois decertified 347 officers, an average of fewer than 17 a year.

But that's not even the worst of it. This is:

[Norberto] Rodriguez held on to his police license for almost a decade after he went to prison on a 52-month sentence for transporting four kilos of heroin. The state decertification board said Chicago officials failed to notify them of the conviction.

Chicago police investigated Rodriguez for domestic abuse three times during the 1990s and he was suspended or asked to take an unpaid leave for a total of 48 days. In 1992, the department investigated him for assault/battery, an allegation the department sustained.

In 1997 prosecutors charged him with the attempted murder of his wife, Irma, for shooting her in an argument. These charges were dropped, but the department fired him.

[...]

Rodriguez killed his wife, Irma, in 2009, and a jury found him guilty of first-degree murder in 2017.

The twist? His police certification wasn't revoked until two years after he murdered his wife. And he held onto it for nine years after he pled guilty to federal drug charges and for twenty years after he was fired by the PD.

The Chicago PD has employed two officers who murdered their spouses.

[Rafael] Balbontin was decertified in 2007 for a “felony.” Before this, Chicago police investigated him for “murder/manslaughter” in 2005, which the department later changed in its final complaint category to a “domestic altercation,” for which it fired him.

The “domestic altercation” was in 2005 when Balbontin stabbed his wife, Arcelia, to death in her home. He was later convicted of murder and sentenced to 25 years in prison.

The PD can't even bring itself to acknowledge the actual crime committed by its officer. A "domestic altercation" can result in murder, but murder is never just a "domestic altercation"... unless it has to be documented in an officer's employment record.

And bad cops (there are plenty listed in this report) were free to bounce around the state, infecting other agencies after being (in very rare cases) fired or forced to resign. It wasn't until this year that the state's law enforcement agencies were required to perform background checks and verify prospective officers were still certified. Agencies were always free to approach the state's law enforcement training board to check on officers' certifications. But they never did.

In response to a FOIA request, the board acknowledged it had no record of a local department requesting the certification status of an officer from 2000 to 2019.

The board excused this lack of interest in its certification records by pointing out agencies could get the same information from the Professional Misconduct Database that was created in 2019. Most agencies couldn't be bothered to do that either.

This database was used 48 times in its first year of operation but never by the Chicago Police Department as of December 2020, according to a FOIA request.

Don't ask, don't tell: law enforcement edition. This is how the Chicago PD (and others in the state) came to employ (for years on end) rapists, fraudsters, extortionists, domestic abusers, actual murderers, and officers with misconduct rap sheets longer than the criminal records of the people they arrested. If accountability begins at home, the state's police agencies stepped out to buy a pack of smokes shortly after formation and never looked back.

Filed Under: chicago pd, foia, illinois, public records, transparency

Alabama Supreme Court Rules Law Enforcement Can Withhold Almost All Records Indefinitely

from the everything-is-an-investigation-when-you're-a-cop dept

Here's what you need to know about Alabama and its public records laws before we head to a depressing state Supreme Court opinion that makes everything worse:

Alabama has one of the weakest public records laws in the nation. Public bodies are not required to respond to requests from citizens and can charge exorbitant fees for producing documents. The only way to force an agency to produce a public document it refuses to release is to file a lawsuit.

As this opinion [PDF] shows, filing a lawsuit doesn't work either. Here's a summary of what the case involved, as well as its disappointing outcome, via the Montgomery Advertiser.

The Alabama Supreme Court on Friday ruled against a Mobile media outlet seeking law enforcement files related to a fatal police shooting, sparking a fervent dissent from the court's own chief justice regarding the state's public records law.

The court upheld a Baldwin County ruling in the case, in which Lagniappe Mobile sued for investigative records from the Baldwin County Sheriff’s Office related to the 2017 shooting of motorist Jonathan Victor. The high court ruled the records Lagniappe sought, including dash and body camera footage from the shooting, are all exempted from open records law due to their "investigative" nature, even though the investigation in the shooting has been closed.

That's right. The court said records that merely documented what had happened -- essential to an investigation but not investigatory records as most people would define the term -- can be withheld forever simply because they were once part of an investigation. Closing an investigation does not prevent law enforcement agencies from withholding records under the investigative privilege exemption.

This is, of course, an abhorrent translation of the state's public records statutes by the state's top court. It completely undermines the presumption of openness that guides public records laws, even those as terrible as Alabama's.

The dissent, written by Chief Justice Tom Parker, excoriates the majority for deciding the state's laws give state law enforcement permission to withhold almost all records forever. A long discussion of the majority's misreading of the statue culminates with this succinct summary:

Putting the pieces together from the above textual and precedential analysis, I believe that the best interpretation of "related investigative material" is as follows. "[R]elated investigative material" includes only records, created by law-enforcement officers, that reflect their efforts in an investigation. It does not include records that merely document an incident or records that are merely part of a process of observation and information collection.

As Justice Parker sees it, the investigative privilege exemption cannot possibly cover the camera footage sought by the newspaper as its nothing more than recorded observation. It also shouldn't have been given blanket coverage to other records sought, like coroner's reports (which are not compiled by law enforcement officers) or communications related to the case (because not all communications would be of an investigatory nature). But the Supreme Court said everything requested could be denied under this exemption.

Justice Parker says court precedent requires the court to define exemptions narrowly. Here, the court has done the opposite, expanding it to cover almost any record created, compiled, or held by a law enforcement agency.

The sweep of those pronouncements is breathtaking. In essence, all evidence in the possession of law-enforcement agencies, whether created by the agency or received from others, is now exempt from citizens' statutory right to access public records. Whatever that interpretation of the statute can be called, it cannot be called a narrow construction in favor of open records that Allen requires. [...] Under today's decision, to be exempted, a record need only be given to law-enforcement personnel and be somehow "related," no matter how tenuously, to a criminal investigation.

As Parker points out, the government officials being sued didn't even try to argue the statute provided coverage this broad. This is from the Sheriffs' brief:

To be clear, the [Sheriffs] are not asserting that [the investigative-privilege statute] provides a blanket exception for any and all materials that have been gathered by a law enforcement entity during the course of an investigation. Clearly, such a position would run afoul of this Court's instruction that the exception[] set forth in [the statute] should be narrowly construed. [Allen], 32 So. 3d at 1271.

But that's what the state's top court decided they should have: a blanket exception that denies the public access to almost every law enforcement record.

Justice Parker's dissent signoff is furious:

With one sweeping stroke, today's decision spells the end of public access to law-enforcement records that are connected in any way to an investigation. Hidden now from the public eye are body-cam videos, dashcam videos, 9-1-1 recordings, and anything else that is remotely connected to a crime or even potential crime. After today, as to law-enforcement agencies at least, the statute might as well be titled the Closed Records Act.

The special concurrence's protestations do nothing to lighten this heavy shroud. Of course government agencies are free to disclose records voluntarily, but that is not the point of the Open Records Act. Like law in general, the Act exists to compel people to do what they will not do voluntarily. So the fact that some people do not need the prod of the law in no way lessens the harm of removing that prod from those who do.

As furious as it is, it does nothing to change the new status quo. Justice Parker knows this, but isn't going to let this terrible decision escape the courthouse without noting his disappointment.

I cannot sit idly by while this Court shrinks a legal right of the people of Alabama to the vanishing point. And I especially cannot do so when that shrinkage flies in the face of text and precedent.

This leaves it up to the legislature to repair the damage done by the court. But Alabama has had terrible public records laws for years so it seems unlikely state legislators are in any hurry to make them better, much less decide they know better than the state highest court on how the current laws should be interpreted or altered.

Filed Under: alabama, law enforcement, public records, records, transparency

Following DC Circuit Ruling In Public Records Case, New Request Demands Senate Intel Committee Reveal Full CIA Torture Report

from the stay-tuned dept

Earlier today the DC Circuit affirmed the dismissal of a public records case brought by Judicial Watch against Rep. Adam Schiff. In an odd way, the ruling may have opened up a way to get the full copy of the Senate Intelligence Committee's giant locked up report on the CIA's torture program. And someone -- namely journalist Shawn Musgrave along with public records lawyer extraordinaire Kel McClanahan -- has jumped up to try. But, first, some background.

The case decided today goes back to the first House impeachment inquiry. In the impeachment inquiry report, the House Intelligence Committee, helmed by Schiff, released some phone records that it had obtained via a subpoena, showing some questionable phone calls, including ones connected to fellow Intel Committee member Devin Nunes (which, separately, Nunes later sued CNN about).

This resulted in some fairly silly posturing, and then Judicial Watch, in standard Judicial Watch fashion, insisted that Schiff abused his powers in getting that subpoena, and sought to get the details of the subpoena via a public records request, saying that they had a "common law right of access" (conceptually similar to FOIA, but rather than using the rules under the FOIA statute, claiming a common law right to get the document).

It's important to note that, normally, Congress is exempt from FOIA, so it's generally silly to make such requests. But, since this was done under the common law claim, rather than FOIA, it was seen as an end-run on the Congressional FOIA exemption. Last summer, the district court dismissed the lawsuit arguing that members of Congress have sovereign immunity and that these records are protected under the "speech and debate clause" of the Constitution, which protects against legal liability for things members of Congress say in the course of their duty.

That takes us to today's ruling. It upheld the district court ruling, again saying that the speech and debate clause protects Schiff here:

As precedent makes clear, none of Judicial Watch’s counterarguments have merit. That its lawsuit seeks “only the disclosure of public records,” rather than to establish criminal or civil liability, does not render the Speech or Debate Clause inapplicable. Appellant Br. 10. To the contrary, Judicial Watch “is no more entitled to compel . . . production of documents . . . than it is to sue congressmen.” Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 (D.C. Cir. 1995). To the extent Judicial Watch maintains that “legislative independence is not at issue in this case” because it seeks “public records that are not confidential in nature,” it misunderstands the immunity afforded by the Speech or Debate Clause. Appellant Br. 10–11. Notwithstanding the records’ confidentiality, “legislative independence is imperiled” when a “civil action . . . creates a distraction and forces [congressmen] to divert their time, energy, and attention from their legislative tasks to defend the litigation.” Eastland, 421 U.S. at 503; see Brown & Williamson Tobacco Corp., 62 F.3d at 415.

The majority ruling does note that it won't get into the larger question that Judicial Watch pushed, to argue that the speech and debate clause is limited in cases involving public records where there is a common-law right of access.

Today, the court has no occasion to decide whether the Speech or Debate Clause bars disclosure of public records subject to the common-law right of access in all circumstances. Nor need it consider whether and how the application of the Clause relates to the two-step inquiry to determine whether the common-law right of access applies. See Washington Legal Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446, 1451 (D.C. Cir. 1994). The parties did not raise, and our precedent does not address those issues.

However, in a concurrence, Judge Karen LeCraft Henderson argues that the speech and debate clause does not necessarily bar common law right of access claims:

I agree with my colleagues that, under our precedent, the Speech or Debate Clause of the United States Constitution bars Judicial Watch’s lawsuit. But I join in the judgment only; I believe, in the right case, the application of the Speech or Debate Clause to a common law right of access claim would require careful balancing....

She then more or less begs for a test case on this question:

We have never considered the Speech or Debate Clause’s application to a common law right of access claim and the parties simply cite a single district court case where the two doctrines were raised, Pentagen Technologies International v. Committee on Appropriations of the United States House of Representatives, 20 F. Supp. 2d 41 (D.D.C. 1998), aff’d, 194 F.3d 174 (D.C. Cir. 1999) (unpublished table decision). 2 In Pentagen Technologies, the plaintiffs brought a common law right of access claim against the Committee on Appropriations of the United States House of Representatives, seeking “to review and copy a series of investigative reports” that were not released to the public. 20 F. Supp. 2d at 42. The Committee on Appropriations asserted the reports were protected from disclosure by the Speech or Debate Clause. Id. at 43. Although the district court “conclude[d] that investigative reports [were] protected from compulsory disclosure by the Speech or Debate Clause,” it reached that conclusion only after determining that the investigative reports were “not ‘public records’ as defined by WLF II” and that “[t]here thus exist[ed] no common law right of access to the reports.” Id. at 45. If the Speech or Debate Clause in fact provided absolute protection from disclosure— including protection from a common law right of access claim—the district court’s “public records” analysis would have been unnecessary.

And thus, the judge argues, if a record is a public record, then it's certainly possible that the speech and debate clause would not block a common law right of access.

So... that's interesting.

As regular Techdirt readers will remember, back in 2014 the Senate Intel Committee concluded its somewhat controversial years-long project to detail the CIA's torture program in Afghanistan. The intel community fought back strongly against the report and tried to block publication of any part of it. Eventually, after much back and forth, the Senate Intel Committee under Dianne Feinstein released a heavily redacted "executive summary" (which itself ran over 500 pages). In the waning days of the Obama administration, Feinstein and others asked President Obama to declassify the whole report in order to make sure that there was a public record of what the CIA did, and (hopefully!) to make sure that it would not be able to do so again.

That didn't happen, and the report has remained mostly unavailable to the public. In fact, once Senator Richard Burr (who has always been a huge intel community supporter and had always tried to block the report) became chair of the Senate Intel Committee, he demanded the Trump administration turn over all copies of the report so that there weren't any copies in the executive branch at all where they might somehow become subject of a FOIA request. In other words, he sought to bury the report and hide it in Congress where it would, in theory, be blocked from any kind of public records request.

Which takes us back to today's ruling. In the new request, also using the common law right of access, filed by McClanahan on behalf of Musgrave for the full, unredacted torture report, they highlight the concurrence by Judge Henderson and how the torture report is quite clearly a public record, and thus should be available under the common law right of access:

Judge Henderson explained that if a sought document is a “public record,” the government’s interest in keeping the document secret should be balanced against the public’s interest in disclosure. Judicial Watch at *11. A “public record,” she notes, is “a government document created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived.” Id., quoting WLF-II, 89 F.3d at 905.

The Torture Report is a public record under this longstanding framework and today’s decision in Judicial Watch does not counsel otherwise. Moreover, the public interest in disclosure is especially high for this report. Thus, we request that you provide the full report to us under the common law right of access to it.

This will almost certainly be denied, followed quite quickly (I imagine) by a lawsuit in which the DC Circuit might put this question to the test, and determine whether or not public records are protected by the speech and debate clause. But it sure would be fascinating if what comes out of it is public release of the locked up CIA torture report that the DOJ once tried to make sure no one would ever be able to read, and that Senator Burr sought to hide behind Congress's protective walls.

This seems especially relevant now, as a judge is permitting some info from the CIA's torture program in a terrorism case in Guantanamo.

When asked about this new public access request, McClanahan told me:

Judge Henderson's concurrence makes it clear that a congressional record that memorializes an official decision of legal significance is subject to the common law right of access if it involves a matter of public interest and doesn't fall within the scope of the Speech or Debate Clause. It's hard to envision a Congressional record from the last 20 years that better fits that definition than the final report of the wide-ranging investigation into the CIA's controversial torture program. We hope that this new decision clarifying the public's right to know such matters of great public interest will finally allow the public to see what the Intelligence Community and its apologists in Congress have tried so hard to bury, so that we can finally close the lid on that dark period of U.S. history.

I hope he's right, though I imagine it's going to take a few years and some fierce legal battles before we know for sure.

Filed Under: access, adam schiff, cia, common law rights of access, congress, doj, foia, kel mcclanahan, public records, richard burr, shawn musgrave, speech and debate, torture report

Florida City Officials Spend $50,000 To Find Out Who Gave Journalists A Public Record

from the pettiest-cash-of-all dept

The city government of Tamarac, Florida has found a novel way to spend taxpayers' money: paying someone to find out who handed public records to someone entitled to receive public records. (h/t Peter Bonilla)

The cost to Tamarac taxpayers will be as much as $50,000 for the city to hire a private investigator to figure out who gave public records to a reporter, according to records released Friday.

City leaders are scheduled to approve hiring the law firm of Kim Vaughan Lerner on Wednesday to conduct a “forensic” search to try to find who gave the South Florida Sun Sentinel a memo that is a public record in Florida.

$50,000 from taxpayers to hire someone taxpayers likely don't believe needs to be hired to discover the source of records taxpayers are entitled to have access to. An investigation so self-serving the city can barely be bothered to defend it. But since the city holds the power and the taxpayers' purse strings, the investigation will continue.

Why are city leaders so hot and bothered they're willing to chase the paper trail of a presumptive public record that ended up in the hands of journalists? Well, it sure as shit isn't because they're concerned in any way about the public they're supposed to be serving.

No, this expensive paper chase is the result of city leaders being embarrassed by their own misuse of public funds. The budget amendments handed to the Sun Sentinel included plenty of perks for city employees -- several of which directly benefited the people approving the amendments. This $50,000 will just be more ill-spent taxpayer "revenue," joining other public expenditures that have done nothing but reward city legislators for being bad stewards.

The city memo in dispute had outlined several budget amendments that would benefit the city commissioners themselves, including new retirement, full health benefits, and stipends for technology and education.

Those budget amendments, which have since been scrapped from being placed on a city agenda, came within months of other forms of spending that leaders passed for themselves to do their part-time job. That included a $25,000 personal initiative fund and a $15,000 local travel fund, on top of their salary, car and phone allowances, and out-of-town travel money.

The $50,000 will be spent interviewing officials and staffers to determine who "leaked" presumptively-public information to the public. This includes reviewing communications sent and received by everyone currently under this super-weird form of suspicion, which apparently includes anyone with access to the budget documents. There's no word yet whether this internal investigation will manifest outwardly, but one suspects city officials willing to spend $50,000 investigating the source of public info won't shy away from targeting the journalists who published the information.

No commissioner expressed any dismay with the outsized set of perks being handed to them or the willingness to waste money investigating a non-existent breach/leak. But one commissioner mistook her public platform for a mirror, issuing this… um… statement:

Commissioner Debra Placko chastised whoever gave out the information, saying at last week’s meeting, “Shame on you for being despicable.”

LOL. "Despicable" is spending $50,000 to find and punish the person who embarrassed you using nothing more than public records anyone could have obtained. Good luck with that. And good luck with your next election run, charlatans A-D (the decision to hire an investigator passed 4-1). This is not just stupid. It's expensive. And it does nothing more than show the public who their servants are actually serving.

Filed Under: florida, foia, private investigator, public records, tamarac, transparency

Appeals Court Rejects New York Police Unions' Attempt To Block Disclosure Of Disciplinary Records

from the your-definitions-of-'irreparable'-and-'harm'-suck-equally dept

A bunch of New York City law enforcement unions have been suing to block the side effects of the repeal of 50-a, an ordinance passed in 1976 that exempted police departments and other agencies (like fire departments) from disclosing information about misconduct to the public.

For more than 40 years, the bad law remained in place. It took nationwide anger of the killing of another black man by a white cop to get it taken off the books. In response, a bunch of unions presiding over the New York City's police and fire departments lawyered up, hoping to continue withholding this information.

The legal battle has reached the Second Circuit Court of Appeals. And the Appeals Court doesn't find the plaintiffs' assertions about "irreparable harm" credible. The unions claim the repeal of 50-a (and the consequent release of disciplinary records) violates agreements they have with the city -- one that says findings in favor of officers/employees will be removed from employees' disciplinary records.

The Appeals Court [PDF] points out that the unions can't just decide the public employees they represent don't have to follow the law.

[T]o the extent that this claim implicates records that must be disclosed under FOIL, the NYPD cannot bargain away its disclosure obligations.

The Appeals Court affirms everything the district court already told the unions. "Irreparable harm" is not only not foreseeable, it's not even remotely credible.

The Unions assert that law enforcement officers will have fewer employment opportunities in the future if records of the allegations against them that prove to be unfounded or unsubstantiated are disclosed, even though each record will reveal the outcome of the investigation. But the District Court noted that future employers were unlikely to be misled by conduct records that contained “dispositional designations” specifying that allegations of misconduct were unsubstantiated, unfounded, or that the accused officer was exonerated. As the District Court also noted, despite evidence that numerous other States make similar records available to the public, the Unions have pointed to no evidence from any jurisdiction that the availability of such records resulted in harm to employment opportunities.

No harm foreseeable there. Unfortunately, that sort of means employers like the NYPD aren't all that selective in their hiring processes. Multiple allegations -- even if they ultimately resulted in exoneration -- should be a red flag. And the NYPD should definitely know this because its internal review process clears bad cops all the time, ensuring they can continue to engage in misconduct without fear of reprisal.

The same goes for the equally wild claim that disclosing these records will result in physical harm to officers.

We also address the Union’s more general assertion of heightened danger and safety risks to police officers. We fully and unequivocally respect the dangers and risks police officers face every day. But we cannot say that the District Court abused its discretion when it determined that the Unions have not sufficiently demonstrated that those dangers and risks are likely to increase because of the City’s planned disclosures. In arriving at that conclusion, we note again that many other States make similar misconduct records at least partially available to the public without any evidence of a resulting increase of danger to police officers.

The unions' argument only makes sense if they are asserting that New York City residents are far more prone to acts of violence targeting law enforcement officers following the release of public records than people living elsewhere in the company. And if that's the argument, it hasn't been preserved for appeal so...

The Appeals Court hands out even more rejection along state law lines. Simply asserting "diminished" employment opportunities on the presupposition of "damaged reputations" is not enough to engage state constitutional protections. There's also nothing in the unions' equal protection assertions since (despite the best efforts of a bunch of idiotic legislators at both state and federal levels) police officers and first responders are not a protected class.

Everything the unions argued is "without merit." That's the final call. (Note: It may not be the final call. But this doesn't look like the sort of the thing the Supreme Court is interested in entertaining.) 50-a is gone. The records can be made public. And if cops think it will hurt them to hand over records showing they've been exonerated will result in harm to themselves and their careers, they're not going to find any sympathy from the courts, much less the general public they've been hiding records from for years.

Filed Under: appeals court, disciplinary records, foia, foil, new york, nypd, public records, transparency

Florida Governor Responds To Lawsuit Over Coronavirus Infection Documents By Pressuring Newspaper's Law Firm To Drop The Suit

from the yes-more-opacity-will-definitely-flatten-the-curve dept

We're at a time when we need more transparency from our government officials than ever. And, of course, we're not getting it. The White House ordered federal health officials to designate documents from top-level coronavirus meetings as classified, keeping them away from FOIA requesters. The nation's other coronavirus task force -- headed by Jared Kushner -- is carrying out its official business using private email accounts.

Things aren't much better at the state level. The Miami Herald filed a public records request seeking information about nursing homes in the state affected by the virus. The governor has repeatedly refused to release this information, which is putting healthcare workers and nursing home residents at risk. So, the Miami Herald sued. It notified Governor Ron DeSantis' counsel that it would be filing suit, as is required by the state's litigation process. The governor's lawyers responded by telling the Herald's legal rep to drop the case.

Florida Gov. Ron DeSantis’ general counsel called a representative of the Miami Herald’s law firm seeking to quash a public records lawsuit that would force the state to divulge the names of all elder-care facilities that have had a positive test for the coronavirus.

The back-door pressure — through an attorney that had no involvement in the case — paid off.

The law firm, Holland & Knight, told Sanford Bohrer, a senior partner with decades of representing the Miami Herald, to stand down and abandon the lawsuit.

The newspaper will not be abandoning its lawsuit. It has found another law firm to take up its case. But there's already a chill in the air, thanks to these actions.

It appears the governor's office spoke to a different partner in the firm, rather than the lawyer representing the paper. Conveniently, this member of the law firm has represented the state in other matters, making it that much easier to persuade the law firm to drop the Herald as a client in this case.

General Counsel Joe Jacquot sought to short-circuit the litigation. He didn’t call the lawyer who drafted the lawsuit and had sent the letter, but rather another Holland & Knight lawyer, George Meros.

Meros has represented the state on numerous matters, including its recent efforts to defend legislation that undermines the intent of Amendment 4, the ballot measure — passed overwhelmingly — that gives felons the right to vote after they have served their sentences.

Meros has represented a long list of state agencies during his career as an attorney. And his employer apparently felt the best step to take was to direct the paper to drop its lawsuit.

The governor is claiming his office did nothing wrong. His office's spokesperson says contacting a law firm to dissuade them from filing a lawsuit is just a normal pre-litigation tactic used to "avoid unnecessary litigation." That would make sense if the governor's office had called to settle or offer to turn over the records the paper is seeking. But it didn't do that. The governor's lawyer instead leaned on a law firm employee with a long history of defending the state in lawsuits and the firm obliged by "advising" the paper to drop the lawsuit.

There's enough plausible deniability built into this that the blame may lie with the law firm, rather than the governor's office. If the law firm wanted to pass on the lawsuit due to possible conflicts of interest, it could have said as much. And if the governor's office wanted to discuss the lawsuit during the five-day waiting period, it could have spoken to the paper's rep, rather than an attorney that had frequently defended the government in the past. None of that happened, and the paper was forced to hire a new legal rep to continue seeking information the governor's office should have been willing to release in the first place.

Filed Under: florida, foia, george meros, law firms, litigation, pressure, public records, ron desantis, sanford bohrer, threats, transparency
Companies: holland & knight, miami herald

Court Says Portland, Oregon City Government Can No Longer Screw Public Records Requesters With Excessive Fees

from the gently-reminding-the-public-who's-paying-whose-salary dept

It's a small win for the plaintiff -- probably less than $100 in total -- but it's a bigger win for the residents of Portland, Oregon. The Multnomah County Court says the city has been routinely overcharging public records requesters for fulfilling routine public records requests. (via Merrick Law, LLC)

The brief ruling [PDF] contains enough detail to show how city employees inflated costs they passed on to requesters who were made to pay up front before document searches would commence. In this case, the requester (Alan Kessler) sought metadata from four government email accounts. The city first gave him an estimate of $205.61, based on an estimated two hours of search and prep time with a 39% markup for "overhead costs."

As the court notes, the city admitted the overhead costs collected rarely went to cover employee overhead. On top of that, the hourly rate used was calculated using the hourly wages of the employees performing the search. This sounds reasonable, but it actually isn't. In this case, the search was performed by two of the city's higher-paid employees, both of whom appear to be overqualified for the work they'd been tasked to do.

Mike Nichols, an Information Systems Technical Analyst V, conducted the search of relevant email accounts. The City's estimate for Nichols wage rate was $78.15 per hour. This rate was incorrect. The actual wage rale plus 39% should have been $66.09 per hour. Nichols' actual time billed for the search was 1.25 hours. Nichols' time record attributed 1 hour to the search.

[...]

Paul Rothi, the City Enterprise Architect Manager, conducted the oversight and record keeping at a rate of $91.92 per hour for 0.5 hours, Rothi's records show the time he billed to plaintiff's request totaled 37 minutes, rather than 30.

Once this search was completed, it was handed off to a third person. This person, the city's Public Records Coordinator, did everything but coordinate public records once she received the request. First, she added another 2.5 hours to the estimate, raising the cost by $106. Then she devoted her partial attention to it over the next month while suffering an illness, attending a funeral, and spending six days covering someone else's job.

As the court notes, this estimate process has almost nothing to do with actual costs and artificially inflates them by handing the job over to some of the city's highest-paid employees.

Here, the City presented testimony and evidence of the hourly rates (including the 39% mark-up for benefits) for two employees involved in responding to plaintiff's public records request along with the City's fee schedule established by City ordinance. The City also presented testimony that no study had been done relating to the fees charged by the Bureau of Technology Services, rather the City occasionally brought in consultants to review rates and overhead costs.

Rothi testified that when preparing an estimate for a public records requester, he prepared a "worst case" estimate. Rothi and Nichols are two highly paid members of the BTS department. The City presented no evidence of the rates charged for other members of the department who may have been available to conduct the records search. The City presented no evidence of the rates charged for Baribeau's records review.

The city argued this was okay because it gave refunds to requesters who had been overcharged. But the court points out that there's actually no mechanism in place to challenge fee assessments or demand refunds. Requesters just have to hope the city is being honest in its assessment of costs and that they will see a refund check if the city decides it has overcharged a requester.

Since this request resulted in litigation, there's no reason to believe the city reviews request fees it has collected and issues refunds voluntarily. The plaintiff was refunded $52.00, but this happened more than a month after he filed his lawsuit. That appears to have been the motivating factor.

That's not nearly good enough, the court says. The city needs to change the way it assesses fees and handles refunds. The order gives the city a list of things to correct while blocking it from overcharging for routine document searches in the future.

The City's current method for determining fees for routine email and document search, including providing a "worst case estimate" IS NOT reasonably calculated to reimburse it for its actual cost of making the records available and results in overcharging the public records requester without providing a method to refund of any overcharges.

The City is hereby enjoined from charging excessive fees for routine email and document searches.

The City must recalculate the time spent responding to Plaintiff's public records request at the lowest hourly rate charged by any department personnel who could be responsible for responding to public records requests, plus any overhead factor, and refund Plaintiff the difference, if any, over and above the $52.00 already refunded to Plaintiff.

The city is also responsible for part of the requester's legal fees since he partially prevailed in his lawsuit. The final total won't be in the thousands of dollars, but this small win for Kessler is a bigger win for other Oregonians. The city can't continue to hand public records work to people at the top end of the wage scale and assume that follows the spirit and letter of the law.

Excessive fees deter requesters -- something that only benefits governments opposed to accountability and transparency. Deterrence may not have been the goal here, but it's a fortunate side effect. Now that option is gone, at least for public records requests determined to be "routine."

Filed Under: excessive fees, foia, journalism, oregon, portland, public records, transparency

Investigation Uncovers Mass Purging Of Phoenix Police Department Misconduct Records

from the clean-slates-for-all! dept

There's nothing about American policing that police unions can't make worse. A powerful obstacle standing in the way of accountability and transparency, police unions ensure Americans remain underserved by their public servants.

Police unions have defended such things as tossing flashbang grenades into rooms containing infants and the elimination of drug testing for officers. They've repeatedly tried to thwart legislation that would provide more public access to police misconduct records and have often verbally attacked anyone who questions the actions of law enforcement.

What they're best at doing is tipping the scale in favor of bad cops. Apparently laboring under the pretense that even a bad cop is a better person than anyone not wearing the blue, unions effectively neutralize oversight by ensuring city and state agencies cannot easily access discipline records. Then they go further, preventing even the police from policing themselves.

Justin Price's report on the whitewashing powers of the Phoenix (AZ) PD's union contract is a jaw-dropping read. But it's not an anomaly. There are contracts like this in place all over the nation. But AZ Central's investigation shows just how much has been swept under the rug to "protect" cops from the people they serve.

Phoenix Police Sgt. Philip Roberts was suspended from the force for 30 days after an internal investigation concluded he failed to properly manage a 2015 incident where officers shot and killed a mentally ill man.

Lt. Dalin Webb received a written reprimand for his 2013 arrest on domestic violence charges in which he reportedly shoved his wife and choked his teenage son.

Officer Joshua Wayne Beeks was suspended for 15 days when the Department discovered he was involved in three unauthorized high-speed pursuits in a single year that killed two people.

But there's little indication in Phoenix Police Department personnel and internal investigations records that those officers were ever disciplined.

That's because Roberts, Webb and Beeks, like hundreds of other Phoenix police officers in recent years, were allowed to erase records of their misconduct from files kept by the Police Department.

The practice, which the Department refers to as "purging," has been standard for more than two decades under the police union's contract, but the public has been unaware of it.

The contract also prohibits misconduct detailed in the purged records from being considered in future disciplinary investigations or performance evaluations.

If the goal is to keep bad cops employed indefinitely, it's been super-effective. Over 500 of the city's 3,000 officers have had their pasts memory-holed by the union contract, covering over 600 misconduct incidents ranging from failure to complete reports to deployments of excessive force.

The purging prevents even internal investigators from discovering patterns of misconduct that should result in harsher discipline or termination. It also prevents plaintiffs suing officers over violated rights from obtaining key background info that could indicate an officer is a longtime abuser of citizens. In one case cited in Price's report, the PD began purging an officer's records as soon as the officer had been served.

The lack of a paper trail results in things like this happening:

Purged records don't appear in a file review.

Those records also don't show up during annual performance evaluations.

Officer Kevin McGowan, for example, earned top marks in his 2015 evaluation despite being disciplined for serious misconduct during the previous year.

An internal investigation concluded McGowan used excessive force when he stomped on an 18-year-old man’s neck, driving his face into the tile floor of a convenience store and knocking out three of the man's teeth.

The incident was captured in surveillance footage taken from the store.

McGowan was initially fired, but the union interceded and he ended up with only a 30-day suspension. A few years later, the disciplinary files were purged, resulting in this cop being commended for being such a great cop. Phrases like "positive attitude" and "community contributor" were tossed around by supervisors unaware of McGowan's recent past.

AZ Central's investigation involved comparing the list of disciplinary files sent to the city's Human Resources Department by the Fiscal Management Bureau with the list of misconduct records maintained by the PD's Professional Standards Bureau. What's considered to be an officer's "permanent record" is maintained by the city's HR department. "Maintained" is definitely overstating things.

By cross-referencing the two sets of records, The Republic identified hundreds of disciplinary cases that had been hidden from internal affairs and the Department's leadership.

Over five years, records of 90% of all sustained misconduct investigations had been erased.

Some of these records are supposed to be maintained for at least five years, according to the contract language. But AZ Central found multiple cases where files had been memory-holed ahead of schedule. Files detailing incidents that resulted in suspensions of over 80 days are never supposed to be purged, but the investigation discovered many of those were missing as well.

The PD explains away all this opacity by saying it increases officer morale. And of course it would. Many employees in many different fields would feel better about themselves and their jobs if they knew their misconduct would never be used against them. But the PD doesn't serve itself. Or at least, it shouldn't. It serves the public. And nothing about this union contract shows any concern about the public or its morale.

Filed Under: phoenix, police, police misconduct, public records, purging, transparency

EFF Sues CBP, ICE Over Refusal To Hand Over Its GPS Tracking Device Policies

from the Garmins-in-boxes-marked-'CLASSIFIED' dept

Roughly a year ago, the government attempted to argue the border search exception applied to GPS tracking devices it surreptitiously attached to a truck crossing the border from Canada and tracked for the next 48 hours, following it from its arrival point in Michigan to its destination in California.

The court disagreed with the government's interpretation of the border search exception. While it may have covered the original warrantless placement of the tracking device, it did not cover the next two days of tracking while the truck traveled far inland.

The government lost its evidence and, eventually, its case. Stuck with evidence solely derived from an unconstitutional search, the government dismissed the charges and the two arrested Canadians were free to return to their home country.

During this case, the government claimed these apparently illegal searches were within policy. Specifically, affidavits filed by the DOJ stated ICE and CBP both had policies that permitted the warrantless, suspicionless installation of tracking devices on vehicles at border crossings.

If these policies exist, no one has seen them. The EFF would like to. It filed FOIA requests with both ICE and CBP, asking the agencies to produce the policies referred to in court. To date, it has received nothing from either agency.

According to the EFF's FOIA lawsuit [PDF], both agencies have violated the law with their continued refusal to produce the requested documents. ICE received the EFF's request last November. Four months later, it said it had found three responsive pages, but that all three pages would be withheld, citing Exemption 7(E). This exemption protects "law enforcement sensitive information" that might give bad guys the jump on the feds if they knew the feds might try to sneak tracking devices onto their vehicles at border crossings.

It would seem the case above -- the one cited in the EFF's lawsuit -- kind of exposed ICE's GPS device subterfuge. The only thing surprising about the use of GPS devices was the government's assertion that the border search exception applies everywhere in the United States, not just at or near its borders.

The EFF's appeal of ICE's decision also pointed out that the Supreme Court's 2012 decision on tracking devices made it pretty clear this super-secret law enforcement technique was actually well-known and understood pretty thoroughly by cops and criminals alike. Upon receipt of this appeal, ICE apparently decided it would no longer discuss its ridiculous exemption deployment.

The CBP, on the other hand, has refused to do anything at all. It too received the EFF's FOIA request last November, but apparently can't even be bothered to look for documents, much less pretend discussion of GPS tracking devices would undermine its covert operations.

The lawsuit seeks the full disclosure of the documents as well as any legal fees incurred by the government's refusal to comply with FOIA law. Should this finally dislodge the documents, we'll all know just a little more about the apparently minimal standards border agencies apply to their use of tracking devices.

Filed Under: cbp, foia, gps, ice, policies, public records, tracking, transparency
Companies: eff