In 1983 Public Opposition To The LAPD Political Espionage Unit — Public Disorder Intelligence Division — Was Strong Enough That The Police Commission Dissolved It — And Then-CD5 Repster Zev Yaroslavsky — One Of The Politicians Spied On By LAPD — Sponsored An Ordinance Which Excluded PDID Intelligence Files From The Much-Hated Investigative Exemption — Which Means All Of Them Must Be Released On Request! — Unless They’re Exempt For Other Reasons Than Investigative — But Even More Interesting — Maybe One Of The Most Interesting Things About The Los Angeles Administrative Code — Is That Yaroslavsky Specifically Precluded LAPD From Making A Burdensomeness Exemption Claim — Which Says That In 1983 LAPD Was Making Exactly The Same Kinds Of Bogus Exemption Claims They Love So Much Now — But Not About These Spy Records!!

There is a lot of interesting stuff in the Los Angeles City Charter! And I didn’t realize it before, but the same is true of the Los Angeles Administrative Code! It turns out that the LAAC includes a local version of the California Public Records Act. This differs here and there from State law, and some of the differences are really interesting.

Let’s take a look at LAAC §12.21. This is the local version of CPRA §6254, which is the main list of exemptions. The infamous §6254(f) is the so-called investigative exemption, which basically allows the cops1 to refuse to release any records which can properly be described as “investigatory or security files.” And the local LA version, found at LAAC §12.21(f), is roughly the same albeit localized.

With at one exceedingly important exception! But before that, some background! The LAPD Public Disorder Intelligence Division was established by Chief Edward Davis in 1970, apparently as a reaction to the Watts Uprising in 1965. The PDID infiltrated hundreds of progressive political groups and also spied on electeds from the Mayor to the City Council.2 According to historian Max Felker-Kanter:3
The PDID operated as an updated Red Squad gathering “practically all” information on “potential threats” and storing as much information as possible. It was, in other words, a comprehensive surveillance program that significantly expanded the department’s intelligence operations.

In the mid-1970s popular opposition to the PDID, focused by groups such as the Coalition Against Police Abuse and the Citizens’ Commission on Police Repression and nourished by increasingly lurid revelations of PDID’s misdeeds, grew to the point that even the Los Angeles Times published a characteristically anodyne editorial against its abuses. These spiritual forerunners of our own Stop LAPD Spying moved public opinion sufficiently that the Police Commission dissolved the Division in 1983.

Subsequently Zev Yaroslavsky, at that time repping CD5 on the City Council, proposed an apparently4 far-reaching “local freedom of information act.”5 After an extended flip-out by Darryl Gates, Yaroslavsky’s proposal was weakened significantly but nevertheless, according to Felker-Kanter, “provided residents with access to intelligence records and was a step toward increasing transparency in the department and local governance.”6 And Yaroslavsky’s ordinance amended the investigative exemption so that it explicitly did not apply to PDID intelligence files. There are a few exceptions, but not many:

Notwithstanding the foregoing provisions of this subsection, records of intelligence information compiled, collected, maintained or used by the Public Disorder Intelligence Division of the Police Department, and records of intelligence information compiled, collected, maintained or used by any other division, office, section, or any other such unit of the Police Department which pertain to any of the functions of the Public Disorder Intelligence Division as comprised on January 1,1983, and subsequently transferred to such division, office, section, or other such unit, other than records which pertain to the protection of visiting dignitaries and records which pertain to the investigation of prison gangs, shall be subject to disclosure

Of course, this is thrilling! And of course mere moments after reading about it I fired off a request to LAPD for all of these records! Every last one! But even more important than this weakened exemption is LAAC §12.21(o), which was (probably) amended by Yaroslavsky’s ordinance.7 This section is the local equivalent of the CPRA’s reviled “catch-all” exemption, found at §6255(a), which includes the line: “The agency shall justify withholding any record by demonstrating … that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”

And as you can imagine, the City of Los Angeles loves this exemption. They use it all the freaking time, and they never justify anything. They won’t tell you what the public interest on either side of the question is, because they don’t know, because the exemption doesn’t apply, and because they’re liars. But there’s one case in which they’ll happily tell you, and that’s the so-called burdensome theory.

Apparently some court somewhere once held that there’s a public interest in local agencies carrying out other activities besides responding to CPRA requests, so that if a particular request would take too much of the agency’s time or cost too much of their money, that’s a public interest that goes to withholding the records. Such claims can be overcome by a showing of sufficiently strong public interest in releasing the records, but that takes a lawsuit, and thus is out of reach of most requesters. And the City of Los Angeles relies on this theory now, as they apparently did then as well. We know this because Yaroslavsky’s amended §12.21(o) specifically forbids the City from claiming that particular exemption:

Any record where, on the facts of the particular case, the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record. For purposes of this section, the phrase
“public interest served by not making the record public”, shall include but not be limited to factors affecting public health, safety and welfare, but when applied to the types of records which are subject to disclosure pursuant to Subdivision (1) of Subsection (f) of this section it shall not include considerations of expense or of administrative burden in making the records or portions thereof which are subject to disclosure available.

It’s obvious that there aren’t laws against things that people don’t want to do and would never even think of doing. There also mostly aren’t laws against things that people sometimes do but are relatively innocuous. If there’s a law against an activity one can be sure that a significant number of people want to engage in the activity. The fact that Yaroslavsky knew to put that clause in there says to me that the City of Los Angeles in 1983 was as bad or, hard to imagine, worse about releasing public records and that Yaroslavsky was fully aware of it.8

Also interesting is the fact that they added such a narrowly applicable version of this exemption exception. Almost as if they knew how much they needed that so easily abusable language in there! It’snot a pro-transparency law at all, not at all. It’s very narrow, very ad hoc, but nevertheless potentially very useful. Anyway, like I said, I asked for all the things. Now let’s see what we get!

  1. And every other local agency in the universe, some with less laughably ridiculous reasoning than others.
  2. Felker-Kantor, Max. Policing Los Angeles: Race, Resistance, and the Rise of the LAPD. UNC Press Books, 2018. p.151ff.
  3. Felker-Kantor p.143.
  4. I say apparently because ordinances from 1983 aren’t available online and I can’t go look at the file in Piper Tech because of the pandemic. I have no way of finding out what Yaroslavsky proposed originally, but Felker-Kantor describes the original motion as much, much broader than the amended version that was actually passed into law.
  5. Felker-Kantor p.159.
  6. Felker-Kantor p.159.
  7. I can’t tell from the notes on the web page if Yaroslavsky added the section or amended it. I think it was an amendment, but I’m not sure. If you talk that Muni Code lingo and can understand what they’re saying please let me know!
  8. Probably because he used it in his own Council Office. I have no proof that he did but I’ve never found a single subdivision of the City of LA that didn’t, so I can’t imagine that his would be different.

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