The LAPD has been notoriously bad at complying with the California Public Records Act. So much so that in 2017 the ACLU sued them for systemic violations of the law, which is in addition to any number of small-scale suits based on individual violations, like e.g. Stop LAPD Spying has had to sue them twice, once in 2015 and again in 2018.
These suits were based on the LAPD’s longstanding habit of completely ignoring CPRA requests, often for years at a time. However, since the City of LA started using the NextRequest CPRA platform the LAPD has gotten quite a bit more responsive, although they can still take a maddeningly long time to respond and produce records.
This welcome improvement in LAPD responsiveness does not mean that all is well in Cop-CPRAlandia. They will still arbitrarily deny requests and then cut off the conversation, and they did this to me twice in 2018. Sadly, the CPRA provides no recourse at all for arbitrary unjustified denials beyond the filing of a lawsuit,1 which is what the path I was forced to follow by the LAPD’s extraordinary and unsupportable intransigence. You can read the complaint here, written by the incomparable Abenicio Cisneros, and/or see transcribed selections below the break.
There are two issues at stake. In the first place, remember back in 2016 when Kerry Morrison and her merry gang of curb-stomping thugs at Andrews International Security altered their contract to be able to withhold public records from me? That left me with no way to tell exactly who said curb-stomping thuggie boys arrested, information they naturally wanted to obscure from me because they tend to arrest the wrong people and rather than mend their ways they prefer to cover up their misdeeds.
But last year I discovered that every time the BID Patrol arrests someone they fill out a form for the LAPD. Here is an example of one. As it’s essential to find out not only how many arrests the BID Patrol makes2 but who they’re actually arresting, I requested that the LAPD give me all of these forms from Hollywood from 2018. They refused, and that is my first cause of action.
The other issue has to do with some Orwellian slab of web app crap known as the Regional Public Private Infrastructure Collaboration System. I learned about this from some emails I got from the Downtown Center BID in response to a CPRA request. You can see the emails here on Archive.Org, but they’re not that interesting. They mostly just announce that new information is available on RPPICS, and since they won’t give up the goods, there’s no way to tell what that is.
But this kind of public/private collaboration sharing between police and security is famous for being misused for political surveillance and other illegal and antihuman activities. The LAPD and private security already get up to enough of this in open emails, as does the freaking BID Patrol. Imagine what they’re doing in secret. But we don’t have to imagine, we can make CPRA requests! Which is what I did, asking LAPD for a year’s worth of postings so as to learn what the heck these people were up to in their little secret world. Again, they denied my request, and this is my second cause of action.
And turn the page, if you will, for a few technicalities about the LAPD’s exemption claims and transcribed selections from the petition itself.
In both cases here, the LAPD claimed the so-called investigative exemption. This is found in the CPRA at §6254(f). This says that the following records are exempt from release under CPRA:
Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of … any … local police agency, or any investigatory or security files compiled by any … local police agency…
Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
(1) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.
(2) (A) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved.
The point is that the so-called investigative exemption is not absolute. It has pretty extensive lists of parts of arrest records that it does not apply to. And, if you haven’t already, take a look at that one private person’s arrest form that I did get. See how there’s nothing on there but a description of the person arrested and a description of the circumstances of the arrest. Both kinds of information are explicitly excluded from the investigative exemption. In fact the section explicitly requires them to be released. That’s the argument for the arrest forms.
For the RPPICS material we argue that the information in the posts is likely to be non-investigatory. This is supported by the one posting I have been able to get, but only because I got it from a BID. This is nothing more than a bulletin about a wanted person, hardly top secret investigational stuff! And, as always with the CPRA, it’s essential to make a case for the public interest in seeing the material. The CPRA, unfortunately, does not exist merely to satisfy random curiosity about what our masters are up to, but to reveal matters of great social and political import! And this case has it in spades, friend, so read on!
1. This is a suit for records under the California Public Records Act (“CPRA”). The Los Angeles Police Department (“LAPD” or “Respondent”) is unlawfully withholding two categories of records: “Private Person’s Arrest Statement Forms” which contain information about so-called “citizen’s arrests,” and postings to the Regional Public Private Infrastructure Collaboration System (“RPPICS”), a system by which the LAPD, private security, and commercial interests share a variety of information.
2. The Private Person’s Arrest Statement Forms must be disclosed because they are not exempt from disclosure and are of high public interest. The forms are not de-facto investigatory records. They contain predominantly, if not exclusively, information that is subject to mandatory disclosure under Cal. Gov. Code § 6254(f)(1)-(f)(2)(A). 1 Further, the public interest in these records is high. These “arrests” largely involve “Business Improvement Districts” (“BIDs”) and others acting on behalf of commercial interests. The public has a right to know how many people these commercial interests are “arresting” with the cooperation of LAPD, what pretenses are being cited to justify the “arrests”, and to what extend the “arrests” constitute efforts by private security to harass and displace people based on race, economic status, and/or other characteristic.
3. The RPPICS postings, similarly, must be disclosed because they are not uniformly exempt from disclosure and are of high public interest. Many of the posts are likely non-exempt public safety notices, non-investigatory postings by either LAPD or private actors, or posts containing information subject to mandatory disclosure under § 6254(f)(1)-(f)(2)(A). Additionally, even if an exemption to disclosure might apply to some of the information on RPPICS, the LAPD waived any applicable exemption by disclosing that information to various members of the public who have accessed the postings. See § 6254.5. Further, the public interest in these records is high. In this era of gentrification, hostility towards the homeless, and continued racial animus towards people of color, the public has a right to know whether and to what extent the RPPICS is being used by LAPD and commercial interests to further criminalize and marginalize these communities.
…
9. On May 16, 2018, Petitioner submitted a CPRA request via Respondent’s NextRequest Public Records Portal at recordsrequest.lacity.org for copies of “all ‘Private Person’s Arrest Statement Form(s)’ generated at the Hollywood Station from January 1, 2016 on.” Respondent numbered the request #18-1109. A screenshot of Respondent’s website reflecting Petitioner’s May 16, 2018, request is attached as EXHIBIT A.
10. The LAPD Department Manual sections 216.30 – 216.34 contains the policies and procedures related to arrests by private persons. The Private Person’s Arrest Statement Form–identified in the Department Manual as Form 05.02.10–is used when LAPD officers receive an arrestee from a private person who has effectuated an arrest. Section 216.33 of the Department Manual states, in relevant part, that “[a]fter receiving an arrested person, officers shall verify the identify [sic] of the person making the arrest and shall complete a Form 5.02.10….” A screenshot of Section 216.33 of the LAPD Department Manual captured from Respondent’s website at http://www.lapdonline.org/lapd_manual/volume_4.htm#216 is attached as EXHIBIT B.
11. The Private Person’s Arrest Statement Forms do not contain the impressions of officers or the results of an officer’s investigation. Rather, they permit the arresting person to convey information such as what offense was alleged to have occurred, details such as the time and location of the alleged violation, and contact information for the arresting person. An example form, obtained by Petitioner via a CPRA request to another entity, is attached as EXHIBIT C.
12. After initially incorrectly routing the request to LAPD Records and Identification Division, Respondent denied Petitioner’s request in a June 13, 2018 email. In that email, Respondent stated that “to the extent records were located,” the records were exempt from disclosure under the investigatory records exemption contained in § 6254(f). Respondent further stated that Petitioner’s request was now “closed.” A true and accurate copy of Respondent’s June 13, 2018 email denying Petitioner’s request is attached as EXHIBIT D.
13. While Respondent denied the request for records, and “closed” the request, it also indicated that, “should any records be located,” certain information contained within the records–such as the name and occupation of the arrestee and a description of the circumstances of the arrest–could be made available upon request. See EXHIBIT D.
14. Petitioner responded the same day, challenging Respondent’s claim that the Private Person’s Arrest Statement Forms are exempt under § 6254(f), and requesting that Respondent provide the non-exempt information contained within the forms which Respondent purported to offer upon request. A true and accurate copy of Petitioner’s June 13, 2018 email to Respondent is attached as EXHIBIT E.
15. Nearly a month passed and Petitioner received no response. Rather than proceed directly to litigation, Petitioner emailed Respondent on July 9, 2018. In the email, Petitioner reiterated the request for the forms and information contained therein. A true and accurate copy of Petitioner’s July 9, 2018, email to Respondent is attached as EXHIBIT F.
16. Respondent replied via email on August 17, 2018. In its email, Respondent reiterated its position that the forms are exempt as investigatory. Concerning the non-exempt information contained within the forms–which Respondent previously indicated it would make available to Petitioner upon request–Respondent refused to provide that information. Rather than provide the requested non-exempt information, Respondent limited the availability of that information to instances where Petitioner could identify a “specific case” and informed Petitioner that the information would only be provided if Petitioner “made a new request.” A true and accurate copy of Respondent’s August 17, 2018 email is attached as EXHIBIT G.
17. That same day, rather than proceeding directly to litigation, Petitioner made yet another attempt to obtain the records. In a message Petitioner sent to Respondent via its open records portal, Petitioner again contested that the forms are exempt from disclosure and informed Respondent that, without the requested information, there was no way for Petitioner to identify specific cases. A true and accurate screenshot of Petitioner’s August 17, 2018 message is attached as EXHIBIT H.
18. Respondent has not replied further. As of this writing, Respondent has failed to provide any records or information in response to Petitioner’s May 16, 2018 request.
19. On August 31, 2018, Petitioner submitted a CPRA request via Respondent’s NextRequest Public Records Portal at recordsrequest.lacity.org, for “everything posted to the Regional Public Private Infrastructure Collaboration System in August 2018.” Respondent numbered the request #18-2311. A screenshot of Respondent’s website reflecting a true and accurate copy of Petitioner’s August 31, 2018, request is attached as EXHIBIT I.
Background on RPPICS
20. While complete information about the nature of RPPICS is not publicly available, it is clear that RPPICS is a system by which the LAPD and various private organizations communicate. Los Angeles Mayor Eric Garcetti, in an August 19, 2013, letter to the Los Angeles City Council, described RPPICS as a “web platform” which “provides a bridge between the Los Angeles Police Department and public and private sector partners that oversee critical assets and high priority threat targets.” As of this writing, that letter is available at http://clkrep.lacity.org/onlinedocs/2011/11-1256-S1_rpt_mayor_8-19-13.pdf.
21. RPPICS works as a “real-time tip line, or an internal blog to share information on suspicious activities,” according to a 2011 article posted on LAdowntownnews.com. The article provides an example of the content posted to the RPPICS: in one instance, a high-rise security guard posted to RPPICS in order to alert other property managers that three “juvenile troublemakers” with backpacks unsuccessfully attempted to gain entrance to a building by claiming they wanted to see their parents without being able to name said parents. As of this writing, that article is available at http://www.ladowntownnews.com/news/keeping-the-tall-towers-safe/article_cf366882-bc70-11e0-840f-001cc4c002e0.html.
22. The LAPD distributes information via email to the private entities that participate in RPPICS. For example, according to the website bldgblog.com, in 2009 the LAPD emailed RPPICS members that, on an upcoming morning, city residents may hear sonic booms due to supersonic aircraft activity at Edwards Air Force Base. As of this writing, that post is available at http://www.bldgblog.com/2009/06/the-exact-acoustic-shape-of-the-skies-above-los-angeles/.
23. The LAPD also sends email bulletins when new reports are posted to the website. Petitioner has obtained, through other CPRA requests, a number of these bulletins. The bulletins are sent to multiple recipients, many, if not all, of whom constitute “members of the public” under § 6252(b)-(c). The bulletins direct recipients to the webpage rppics.lapd.lacity.org/Lists/Announcements/AllItems.aspx. That link directs to a password-protected login page to the RPPICS postings. A true and accurate copy of a May 22, 2018 email bulletin and a screenshot of the RCCIPS website login page are attached as EXHIBIT J.
Respondent withheld all RPPICS posting records
24. On September 26, 2018, Respondent denied Petitioner’s request, citing to the investigatory records exemption in § 6254(f). As with Petitioner’s request for Private Person’s Arrest Statement Forms, the LAPD declined to confirm whether it either located records or determined, on a record-by-records basis, that an exemption applies. Instead, Respondent asserted that, “[t]o the extent that records were located, they are either investigatory records themselves or properly part of an investigative file.” A screenshot of Respondent’s website reflecting a true and accurate copy of Respondent’s September 26 reply is attached as EXHIBIT K.
25. That same day, Petitioner, rather than proceeding directly to litigation, messaged Respondent in an attempt to obtain the requested records. Petitioner stated that any applicable exemptions applying to the postings were likely waived under § 6254.5–due to the many members of the public who have access to the postings–and asked Respondent to reconsider its denial. A screenshot of Respondent’s website reflecting a true and accurate copy of Petitioner’s September 26 reply is attached as EXHIBIT L.
26. Respondent did not reply further or reconsider its denial. As of this writing, Respondent has failed to provide any records or information in response to Petitioner’s August 31, 2018 request.
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38. The LAPD is unlawfully withholding records and/or information in response to Petitioner’s request for Private Person’s Arrest Statement Forms. The forms are not exempt on their face as investigatory records and Respondent cannot show every form is part of an investigatory file. Even assuming, arguendo, all or some forms are exempt as part of an investigatory file, the large majority of information contained on the forms must nevertheless be disclosed under § 6254(f)(1)-(f)(2)(A), regardless of whether Petitioner identifies a specific case.
39. The investigatory records exemption reaches both “records of … investigations” and “investigatory files.” § 6254(f). The statutory language concerning investigatory files reaches material that, while not on its face exempt from disclosure, nevertheless becomes exempt through inclusion in an investigatory file. Williams v. Superior Court (1993) 5 Cal. 4th 337, 354 (Williams). However, law enforcement does not enjoy carte blanche to withhold a record simply by placing it in a filed labeled “investigatory.” Id. at 355. On the contrary, it is well established that files only become exempt as investigatory when the prospect of enforcement proceeding are “concrete and definite.” Id. at 356. Thus, to justify withholding the forms, the LAPD must show that they are either themselves records of investigations, or are duly exempt as part of an investigatory file in which there arose a definite and concrete prospect of enforcement.
40. The forms are not, themselves, records of investigations. The exemption in § 6254(f) for records of investigations only reaches investigations conducted by “the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency….” Here, the forms are filled out by “private person’s” who decide to effectuate an arrest independent of any investigation by a law enforcement agency.
41. Additionally, in order to be exempt as a “record of investigation” under § 6254(f), the record must be a targeted inquiry into a particular crime or crimes. ACLU of Southern California v. Superior Court (2017) 3 Cal.5th 1032, 1040 (ACLU). Here, the forms are not the result of any inquiry by law enforcement. Rather, they are completed when an officer receives an arrested person from the private arrester. Thus, the forms are properly considered administrative tracking forms, not records of a targeted inquiry into a particular crime. As such, the forms are not exempt on their face under § 6254(f).
42. Neither can Respondent withhold all the Private Person’s Arrest Statement Forms on the basis that they are investigatory files under § 6254(f). Respondent can only sustain its withholding of all of the forms by showing that a “concrete and definite” prospect of enforcement existed as to each and every form. See Williams, supra, at 356.
43. Here, Respondent appears to have made no such case-by-case determination. Instead, Respondent is withholding all requested records on the basis that they are categorically exempt. Respondent is incorrect. While some forms may be properly investigative files under § 6254(f), Respondent’s failure to make a case-by-case determination is unlawful and Respondent is withholding those forms which are not part of investigatory files in violation of the CPRA.
43. Even assuming, arguendo, that some forms are, themselves, exempt under § 6254(f), Respondent is unlawfully withholding non-exempt information contained within the forms which is subject to mandatory disclosure under § 6254(f)(1)-(f)(2)(A).
44. The investigatory records exemption explicitly does not exempt from disclosure certain information contained within investigatory records. §§ 6254(f)(1)-(f)(2)(A). After describing the investigatory records exemption generally, section 6254(f) states, in relevant part:
Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information . . .
…
45. The provisions in §§ 6254(f)(1)-(f)(2)(A) are limitations on the CPRA’s exemption for law enforcement investigatory records and require agencies to disclose specific information derived from the investigatory records “rather than” the records themselves. Williams, supra, at 360-361. Those provisions for mandatory disclosure from law enforcement investigatory files “represent the Legislature’s judgment, set out in exceptionally careful detail, about what items of information should be disclosed and to whom.” Williams, supra, at 393.
46. Further, Courts have recognized an agency must construe a request for an investigatory record as a request for the information contained within that record, and must produce the non-exempt information described in §§ 6254(f)(1)-(f)(2)(A). The court in Cmty Youth Athletic Ctr. v. City of Nat’l City (2013) 220 Cal.App.4th 1385 (Nat’l City), citing Haynie v. Superior Court (2001) 26 Cal.4th 1061 (Haynie), stated:
In construing a disclosure request, the policy of the PRA requires the courts to consider the information that is being requested, not only the precise type of records that must be provided. For example, an agency may be required to produce the “substance” of complaints and the “factual circumstances surrounding the crime or incident” even if a requested arrest record is exempt from disclosure. (internal citations omitted) Nat’l City, supra, at 1430.
47. Here, the forms Petitioner requested contain a variety of non-exempt information. Petitioner’s request for the forms triggered Respondent’s duty to provide that non-exempt information. Thus, assuming, arguendo, that Respondent has no duty to provide the forms themselves, Respondent is violating the CPRA by withholding the non-exempt information contained within the forms.
48. As such, Respondent cannot withhold all Private Person’s Arrest Statement Forms, and non-exempt information contained therein, subject to § 6254(f). The forms are not records of investigations, they are not in all cases part of investigatory files, and they all contain non-exempt information. Respondent must produce the requested forms and/or information contained therein.
Respondent is violating the CPRA by withholding all records and information in response to Petitioner’s request for RPPICS postings.
49. The LAPD is unlawfully withholding records and/or information in response to Petitioner’s request for RPPICS postings. The postings are not exempt on their face as investigatory records, and the agency cannot show every posting is part of an investigatory file. Even assuming, arguendo, that some postings are part of an investigatory file, certain information contained within the postings must nevertheless be disclosed under § 6254(f)(1)-(f)(2)(A). Finally, Respondent has waived any and all exemptions to disclosure by sharing the postings with members of the public.
50. The RPPICS postings are not records of investigations. To the extent that the postings contain information communicated from private parties to Respondent, they are not the result of law enforcement’s targeted inquiry into a crime. See § 6254(f); ACLU, supra. To the extent the postings contain information communicated from Respondent to private parties, they are likely communications related to “crime prevention and public safety that are unrelated to either civil or criminal investigations” and are thus not “records of investigations” under § 6254(f). See Haynie, supra, at 1071. Thus, the postings are not exempt on their face as records of investigations under § 6254(f).
51. Neither are the postings uniformly part of investigatory files. As with the Private Person’s Arrest Statement Forms, Respondent can only withhold postings as investigatory files if it can show that each posting relates to an investigation in which there arose a concrete and definite prospect of enforcement. Williams, supra, at 356. Here, Respondent appears to have made no such determination, opting rather to declare all postings exempt. While some postings may be properly investigative files under § 6254(f), Respondent’s failure to make a case-by-case determination is unlawful and Respondent is withholdings non-exempt postings in violation of the CPRA.
52. Even assuming, arguendo, some postings are exempt under § 6254(f), the non-exempt information contained within the postings must be produced. Respondent’s duty to produce non-exempt information from otherwise exempt investigatory records is discussed in paragraphs 44-46, supra. Here, to the extent the postings contain any of the information described in § 6254(f)(1)-(2)(A), Respondent is unlawfully withholding that information.
53. Finally, even assuming, arguendo, exemptions to disclosure apply to the RPPICS postings, Respondent has waived those exemptions by making the records or information contained therein available to members of the public. An agency, by disclosing records to members of the public, waives its ability to withhold those records subject to an exemption under the CPRA. § 6254.5. Here, postings are available to many members of the public via RPPICS. As such, Respondent cannot withhold such records subject to exemption in response to Petitioner’s request.
54. Thus, Respondent cannot withhold all postings to RPPICS. The postings are not records of investigations, they are not in all cases part of investigatory files, they contain non-exempt information, and any claim of exemption is waived under § 6254.5. Respondent must produce the requested postings and/or non-exempt information contained therein.
55. Respondent has violated the California Public Records Act by unlawfully withholding requested records and information, by failing to conduct a search for records, and by its other acts described herein. Therefore, Petitioner respectfully petitions for a writ of mandate ordering Respondent to comply with the CPRA.
Image of Eric Garcetti is ©2019 MichaelKohlhaas.Org and while you’re at it why not click here! Must admit, by the way, that I stole that joke about the difference between right and wrong from the incomparable P.G. Wodehouse although I cannot, for the life of me, remember which book I stole it from. No matter, you ought to read all of them anyway.
- There’s a chance that this may change in the future. Assemblymember Vince Fong, just last week, introduced AB-289, which announces the intent of the legislature to pass a law establishing a state-level CPRA ombudsman. Although there are as yet no details whatsoever, presumably this would introduce an intermediate level of dispute resolution, somewhere in that currently empty zone between exasperated threats paired with hostile silences and an actual lawsuit. This would be an excellent development.
- TLDR: too many.
