The City of Los Angeles is notorious for ignoring its duties under the California Public Records Act. Among City agencies, the LAPD is probably the worst at responding to requests in a timely, comprehensive manner. One of the worst aspects of CPRA is that filing a lawsuit1 is the only recourse if an agency refuses to comply. This is the strategy being pursued by the Stop LAPD Spying Coalition.2
So anyway, my own CPRA experiences with LAPD confirm this general impression. For instance, on February 10, 2015, I sent them this:
I’d like to request a list of all active stay-away orders for the Hollywood Entertainment District or maybe you could suggest documents I could request that would allow me to assemble such a list myself? I’m interested in how many there are and what crimes were committed by the people subject to them.
I won’t bother you with a detailed timeline of all my ignored follow-up inquiries and their occasional non-responsive answers to them, but in more than 20 months after my making this request they still had supplied no records in response.3
Well, as you may be aware, I’m presently working through a theory on whether Los Angeles Municipal Ethics laws, specifically LAMC 49.5.5(A), can be used to force the City to comply with CPRA without having to go to court. A description of this project can be found here. Now, LAMC 49.5.5(A) states:
City officials, agency employees, appointees awaiting confirmation by the City Council, and candidates for elected City office shall not misuse or attempt to misuse their positions or prospective positions to create or attempt to create a private advantage or disadvantage, financial or otherwise, for any person.
And the general theory with respect to CPRA is that when a City employee willfully denies someone their rights under CPRA they may well be violating this law, since being denied rights is a disadvantage. You can see a a specific application of this theory here. This law does apply to the LAPD, but my feeling is that the LAPD problem with CPRA compliance is not amenable to an LAMC-49.5.5(A)-based strategy. Read on for details and a potential solution.
LAPD’s CPRA process requires one to submit a request to the Discovery Section, ideally it’s then assigned to an analyst, and the analyst requests the material from various parts of LAPD and prepares it for release. The various LAPD subdivisions don’t seem to be in any hurry to supply material and the analysts seem to have neither the power nor the will to force them or even encourage them to comply in a timely manner. The people in charge of the Section don’t seem to have the will to take action to speed things up.
Their problem with CPRA compliance is a structural problem, it’s a problem of neglect rather than intentional action. No one ever says explicitly that they’re not going to comply. Instead, compliance just doesn’t happen and doesn’t happen and doesn’t happen.4 Well, Municipal Ethics laws are, as they absolutely must be, focused on individual actions by City employees. Structural problems are not ethical problems. Thus it’s not really applicable here. Neglect of duty, however bad it may be, is not misuse of position. Misuse must require active intent to do something, otherwise the scope of LAMC 49.5.5(A) would be impossibly broad.
But the LAPD is different from other City agencies in an important sense. As a quasi-military bureaucracy, its leaders at various levels have to have the ability to compel their subordinates to act and they also have to be required to do so. This isn’t, can’t, and shouldn’t be the case in the civilian parts of the City government, but it must be the case in the LAPD. Thus we find in LAPD Manual (Volume 1, section 610) a statement that:
Commanding officers have responsibility and accountability for every aspect of their command. Commensurately, within policy guidelines and legal constraints they have the authority to coordinate and direct assigned personnel and other allocated resources in achieving their organizational objectives. In so doing, they must perform the full range of administrative functions, relying upon policy, direction, training, and personal initiative to guide them and their command in achieving the highest level of performance possible.
That is, commanding officers can get in trouble if their subordinates don’t do what they’re supposed to be doing, and commanding officers have the power to order their subordinates to do whatever is both necessary and legally allowed to make sure that their units achieve their assigned goals. Also, and crucially for my purposes, neglect or lack of intention aren’t excuses. And not only are Commanding Officers responsible for making sure that their units do their jobs, everyone in the LAPD has to follow the laws.5 Thus, we find in the LAPD Code of Ethics a statement that:
Persons in the public service shall uphold the Federal and California State Constitutions, laws and legal regulations of the United States, the State of California, the City of Los Angeles, and all other applicable governmental entities therein.
Adhering to the Code of Ethics must also be an aspect of the command of Commanding Officers, so it would seem that the people in charge of LAPD’s Discovery Section are not only required to ensure that their unit doesn’t violate CPRA,6 but they are also responsible for the fact that this unit violates CPRA on a regular basis. Also, they are responsible whether or not anyone actually intends to violate CPRA.7
And not only all that, but the LAPD has both an internal oversight process, which is the Internal Affairs Group, and an external civilian oversight process, which is the Office of the Inspector General and, ultimately, the Police Commission. These bodies not only accept complaints from anyone, but they are explicitly required to investigate all complaints.8
All of this suggests that it may be possible to force the LAPD to comply with CPRA without hiring a lawyer by complaining to Internal Affairs that the Officers in charge of the LAPD Discovery Section are responsible for the violations of State law and the LAPD Code of Ethics involved in noncompliance. Those Officers seem to be Martin Bland, who’s directly in charge of the Section, and his superior, Dominic Choi, who’s in charge of the Risk Management Division, which includes the Discovery Section. So that’s what I did the other day, and here is a copy of it, if you’re interested. More news as it happens, of course.
Image of Dominic Choi is a public record and I got my copy here.
- I know it’s actually a petition, rather than a lawsuit. I’ve been corrected on this before. I’m going with clarity rather than precision here, friends.
- Who filed their suit in December 2015 (and finally have a hearing set for November 22, 2016; another big problem is that not only are lawsuits expensive, time-consuming, and wasteful, but they are slow as freaking Hell.
- Coincidentally, this very morning, as I am writing this post, the LAPD Discovery analyst assigned to this request send me 28 pages of material in response (I will be writing a separate post on these at some point). These are the first actual records I’ve received for this. In a fairly stunning display of chutzpah, the Hollywood Division only supplied records that were current at the time of my request, in February 2015. Also, what they sent can’t possibly be everything. Thus the problem described here persists even in the face of this entirely inadequate response. Not that even a complete response would have solved the problem, given the fact that it took them more than 20 months to supply anything at all.
- Of course this is how bureaucracies tend to manage their illegal behaviors. It’s not efficient to have individuals willfully violating the laws to further the ends of the bureaucracy. Instead, the bureaucracies are designed so that the laws get broken automatically and no one individual is to blame. If things get bad enough publicly enough, a bureaucracy might cough up an individual scapegoat, but this isn’t how things are meant to go. This may well be one of the main purposes of bureaucracy. In any case, it’s not a problem that’s going to be solved by anyone, let alone me, any time soon.
- This may sound redundant, but it’s not. Obviously, everyone’s required to follow the laws, but if the LAPD didn’t make it an internal requirement they’d have a hard time using internal policies to deal with lawbreakers. Or that’s my understanding of the matter, anyway.
- It being a law. In fact, a right guaranteed by the California Constitution.
- As I suggested above, I believe that there’s a sort of general intention on the part of LAPD to violate CPRA, and that they’ve designed their CPRA process to make sure not only that this happens, but that no identifiable individuals have to provably decide to violate CPRA. But, probably for entirely distinct reasons, LAPD has found it necessary to make command responsibility separate from intentionality, which opens up a door.
- There’s an interesting clause in the procedure, allowing the investigator to dismiss complaints if they “[demonstrate] an irrational thought process, and [are] consistent with the complainant’s established pattern of making chronic or crank complaints.” I suppose one could make a superficially plausible argument that our complaints are chronic and/or crank, but we do take some care to be sure that they don’t demonstrate an irrational though process, so I’m hoping we’ll be OK on this count…