This post is about a complaint I filed just now with LAPD Captain Bryan Lium against Kris Tu and Thanh Su of the Department’s Public Records Unit. If you want to skip straight to it here is the link!
The LAPD let me know recently that they will not comply with the California Public Records Act when it comes to my requests. Which isn’t much of a change, actually. Other than a few months in 2018 when they followed the law they have never complied. It took them over a year to get to my first request to them in 2015 and things have only gotten worse.
But late last year they settled a major CPRA case with the ACLU and part of the agreement required the Department to adopt a policy stating explicitly that LAPD employees, both sworn and nonsworn, were subject to discipline for willful violations of the law. And since they will no longer produce records in response to my requests I’ve been using the time I would have spent reviewing and writing about their records to file complaints against them instead.
In August of this year I filed one against LAPD CPRA Sub-boss Kris Tu and his supervisor, Lieutenant Marla Ciuffetelli. Then another against Ciuffetelli alone. A few weeks ago I filed my third, this against Tu again and also Discovery Analyst Masoomeh Cheraghi.
And today I filed my fourth! This one’s against Tu and Analyst Thanh Su. There are two issues involved here. First their refusal to state which exemptions they claim justify their redactions and withholdings and second their refusal to state the name of the person who determined to apply the exemptions. Read the transcription below for the details and stay tuned to see what happens!1
Transcription of the complaint:
Captain Bryan Lium
Los Angeles Police Department
Los Angeles, CA 90012
October 29, 2020
Dear Captain Lium,
By way of this letter I hereby submit a complaint against Detective Kris Tu (34895) and civilian employee Thanh Su (n6233) for violating the California Constitution, California State Law, and LAPD policy with respect to the California Public Records Act (“CPRA”) as enshrined in the Department Manual at §406.30 and as agreed to by the City of Los Angeles and LAPD in the September 2019 settlement agreement in Winston v. City of Los Angeles (“ACLU Settlement”). This settlement agreement is appended for your convenience and appears below as Exhibit 1 on page 4.
On September 12, 2019 I submitted CPRA Request 19-5155 to LAPD via the NextRequest platform asking for various emails about LAPD officers involved with anti-homeless vigilante groups in the San Fernando Valley. This request is appended for your convenience and appears below as Exhibit 2 on page 18. The request was assigned to Su at some point.
In late 2019 and again on September 29, 2020 LAPD Discovery uploaded a number of responsive documents, heavily redacted. At that time they also posted a message purporting to explain LAPD’s understanding of its obligations under the CPRA. This message, which LAPD Discovery posts unchanged on many if not all CPRA requests, contains a long generic list of exemptions that might conceivably apply but doesn’t name any that actually do apply:
The Act does not mandate disclosure of all documents within the government’s possession. Rather, by specific exemption and reference to other statutes, the Act recognizes that there are boundaries where the public’s right to access must be balanced against such weighty considerations as the right of privacy, a right of constitutional dimension under California Constitution, Article 1, Section 1. The law also exempts from disclosure records that are privileged or confidential or otherwise exempt under either express provisions of the Act or pursuant to applicable federal or state law, per California Government Code Sections 6254(b); 6254(c); 6254(f); 6254(k); and 6255.
The CPRA at §6255(a) requires responding agencies to justify the withholding or
redaction2 as follows:
The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or 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.
Thus does the CPRA require agencies, including LAPD, to actually state which exemptions they’re relying on to justify their withholding of records. But they failed to do so in this instance. Since they paste this same message into many of their requests3 it’s not possible that they’re actually claiming all of these exemptions apply. Even without the copy/pasting it’s clear that LAPD hasn’t stated the exemptions it’s applying. For instance §6254(b) exempts records prepared for use in ongoing litigation. The responsive records produced for this request are a bunch of random emails from over a year ago. They weren’t prepared for use in litigation.
And §6254(k) merely incorporates a long list of exemptions and privileges from elsewhere in the law. It exempts “Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” For instance attorney client privilege is created elsewhere in California law but is drawn in to the CPRA via 6254(k).
Similarly the trade secrets exemption from the evidence code, and any number of other such exemptions. Courts have held explicitly that a bare citation to §6254(k) fails to meet the requirement that agencies “justify withholding any record” by citing “express provisions” of the CPRA as there’s no way to know what exemption is being invoked. On September 29, 2020 I asked Thanh Su and by extension Kris Tu to explain
which exemptions they were actually relying on to justify their redactions but no one has answered.
In addition to requiring that agencies justify withholdings and redactions by citing “express provisions” of the chapter, the CPRA also requires that: “The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial.”4 On October 8, 2020 I asked Tu and Su to state this information. Not only have they failed to do so despite the explicit requirement of the law, they’ve even failed to answer my request.
Finally, the Department Manual at §406.30 states that, with respect to the CPRA:
Any Department employee may be assigned to assist in the work of responding to a public records request and/or preparing records for disclosure. A Department employee who willfully withholds Department records or information relating to a CPRA request or willfully violates any other obligation under this policy may be subject to discipline.
Kris Tu supervises the LAPD CPRA unit and so has received training in the law. In fact such training was required by the ACLU settlement. His subordinate Su has also been trained. Thus it’s not plausible that Tu and Su other than willfully violated the requirement to “set forth the names and titles . . . of each person responsible for the denial.” Likewise they must understand their obligations to justify the withholding of information via redaction by citing explicit authorizing exemptions. Their failure to do so must therefore be willful. Thus per the Department Manual, quoted above, they “may be subject to discipline.”
These violations are not technicalities, they’re not trivial. These transgressions violate my right and the rights of my fellow citizens, guaranteed by the California Constitution, to have LAPD comply with the CPRA. Therefore I ask you to please investigate this matter and subject Tu and Su to appropriate discipline based on your findings.
Regardless of LAPD’s determination with respect to their culpability, please arrange for LAPD’s CPRA unit to begin complying with its legal obligations by citing the actual exemptions relied on for redaction or withholding of public records. Also please arrange for the CPRA unit to state the names and titles of staffers who determine that records are subject to redaction or withholding.
■■■■ ■ ■■ ■■■■ ■■■■ ■■
Los Angeles, CA 900■■
- Here’s what’s going to happen: Around December 2021 they’re going to write me a generic letter. It will not even mention the complaint it’s in response to. It will find that the complaint is “unfounded”, which means, according to LAPD, that events “didn’t happen in the way that [I] described.” That is, they could still have been illegal or in violation of the rules, but they didn’t happen as I described. Which is appropriately described as a cop-out.
- Which counts as withholding under the law. [Footnote in original]
- There’s no way to tell how many because LAPD also refuses to consistently publish its requests. This prevents them from being searched on the NextRequest platform.
- At §6253(d)(3).