Kevin Valine

Modesto News: Media attorney finds fault with district attorney’s response to records request

I normally write about Modesto, but this week, I’m focusing on Ceres, the Stanislaus County District Attorney’s Office and the city’s investigation into the use of cameras by police officers in the workplace and the extent to which those cameras were hidden.

I wrote about the cameras recently because I was filling in for a co-worker.

Ceres officials have not said much because they say this is a personnel matter, which limits what they can reveal. The Modesto-Stanislaus branch of the National Association for the Advancement of Colored People claims that the cameras were used by three officers and that two female city workers were targeted.

Because the city was not saying much, I tried to get more information from the District Attorney’s Office. Ceres police this summer sent reports to prosecutors. District Attorney Birgit Fladager has said prosecutors could not establish that a crime occurred based on the information provided by police.

Police reports and similar law enforcement documents are not public records but some of the information in them – such as information regarding the circumstances of an incident or crime – is releasable under the California Public Records Act. So I filed a records request with the District Attorney’s Office for the releasable information in the Ceres police reports.

The DA’s Office sent me a three-page letter denying my request.

California Newspaper Publishers Association staff attorney Scott Merrill reviewed the letter and concluded it was confusing and contradictory and did not meet the requirements of the California Public Records Act.

Merrill said the letter states that the information is not releasable because DA records are exempt from disclosure, but then it states the records belong to the Ceres Police Department and the decision to release them is for the police to make.

“This is kind of like talking out of two sides of your mouth,” he said.

Merrill added that it also is an incorrect reading of the public records act for a government agency to say it cannot release records because they were created by another agency. He said that if an agency is using the records and has the records, it needs to release them, even if another agency created them.

“The law does not care who owns the records,” he said.

The letter also states that prosecutors are denying my request because only contemporaneous information can be released, implying The Bee should have asked for the information when the incidents took place. The Bee asked for the information as soon as it learned about the allegations. And the letter invokes the catch-all exemption that the public interest is best served by not releasing the records.

Merrill said under the public records act, the District Attorney’s Office is required to provide an analysis about why these reasons are appropriate in denying The Bee’s request. He said prosecutors failed to do that.

“There is nothing really here (in the letter) that gives the public any understanding why (this information) is privileged or exempted from the California Public Records Act,” he said.

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