UPDATE: This story is about my attempt to get copies of 24 episodes of an LAPD podcast. LAPD has so far refused to produce them to me but I independently found a way to download them from the Department’s podcast host. I uploaded all 24 to the Internet Archive and you can get copies at this link.
This is a story about two things. First, yet another instance of the Los Angeles Police Department violating the California Public Records Act in yet another completely novel way.1 Second, about a new tactic I thought of to enforce CPRA compliance by the City of Los Angeles in general and LAPD in particular, that I am trying out for the first time.
The idea is that some of the City’s violations of the CPRA are specifically designed to hinder me personally and that this is a violation of LAMC 49.5.5, which forbids misuse of official position to create a private disadvantage. On Friday, July 31, 2020, I filed a complaint against LAPD Discovery supervisor Kris Tu on this basis. Read on for details!
On July 7, 2020 I submitted Request #20-4427 to LAPD via the City’s NextRequest records platform2 asking for the audio files of all their “Our LAPD Story” podcast. On July 9 they gave me the link linked to in the previous sentence, which is http://www.lapdonline.org/videos_podcasts along with the link to their podcast host, which is https://www.buzzsprout.com/203568/, and closed the request.
Now, the CPRA is very clear that LAPD must provide copies of records on request. At §6253(b) it says “Upon request, an exact copy shall be provided unless impracticable to do so.” The law does allow copies to be provided via links to web pages. At §6253(f) it says:
a public agency may comply … by posting any public record on its internet website and, in response to a request for a public record posted on the internet website, directing a member of the public to the location on the internet website where the public record is posted.
I went to Buzzsprout and learned that it prevents direct downloads of audio files, and the files are what I was asking for.3 It’s certainly to be expected that a podcast hosting service would prevent downloads. I explained this to LAPD and they told me to list specific episodes I wanted and they’d prepare an invoice and give me copies when I paid.4 I told them that, as I had requested, I wanted all of them.5
That all happened on July 9. Three weeks later, on July 30, the analyst who had been handling the case, Thanh Su, sent one of the most remarkably loony statements I’ve ever received in response to a CPRA request. You can read the whole thing at the request itself or in the footnote to this sentence.6 The essential elements of this response along with my comments are:
● The Department has conducted a search … and has identified two audio files in its possession, for the April 13, 2020 and June 30, 2020 podcast episodes.
◼ It’s good that they conducted a search, because the law requires them to do so. It’s weird that they only found two files though. There are 24 podcasts on the Buzzsprout page. Wonder why that is??
● due to the large file size of the podcast episodes, the Department typically does not retain separate copies of the audio files … but rather uploads the audio files onto its podcast hosting and publishing page at https://www.buzzsprout.com/203568
◼ OK, really. How big are freaking podcasts? I’d be amazed if if they even approached 100 MB ever. Also, however big they are, storage is cheap and there are only 24 episodes. They range in time from about ten minutes to about forty minutes. If they’re a gigabyte each, which they’re not, Hard drive capacity is less than $0.02 per gigabyte.7 So we’re talking less than $0.48 to store the whole pile of them. So the first part is implausible.
Furthermore, the idea that anyone who produces any kind of digital files, be they audio, video, or even text, is going to delete their local files because they’re also stored on some third party hosting platform, is ridiculous. Obviously they’re going to buy more storage. To test this idea I did a quick Twitter poll, to which 28 people responded and only two said that they delete their local files. So I guess it’s not entirely ridiculous but it’s ridiculous nevertheless.8
● The Department does not have the technical capability to download the podcast episode audio files from its podcast hosting page, as it lacks the necessary special software to do so.
◼ When I started writing this post I was under the impression that it was not possible for any random person to download copies of these podcasts from Buzzsprout.9 However, a brief glance at Buzzsprout’s Help Section revealed that logged-in users can download copies of their own podcasts in three different ways, none of which requires any software other than a web browser. So this is not only a lie, but it’s a particularly stupid lie, told by an idiotic and/or arrogant liar who doesn’t even see a need to tell plausible lies.10
● The Department can provide you with a copy of the April 13, 2020 and June 30, 2020 audio files by placing them on a compact disc, which can be made available to you via U.S. Mail or for in-person pick-up upon a payment of a fee of Five Dollars
◼ OK, they don’t say why they need to mail these files to me on a CD rather than uploading them to the NextRequest platform like they do for every single other file ever produced in response to a CPRA request since they started using NR in 2017. I’m left to imagine that the files are too big, since they’ve been going on about file size.
But NextRequest actually advertises that it will handle files of any size. Not only that, but take a look at LAPD’s CPRA request 20-4337. In response to this request LAPD uploaded a 297MB mp4 video file, which is still up, available for download, at this link which you shouldn’t click on if you don’t want the download to start.
● [Five dollars] represents the direct cost of producing copies of the audio files on a compact disc.
◼ Here they’re parroting language from the CPRA at §6253(b), which requires them to provide copies of records “upon payment of fees covering direct costs of duplication”. The problem, of course, is that “direct costs of duplication” can’t possibly be calculated on the basis of whatever means of data transfer LAPD chooses. They must be calculated on the basis of the cheapest means readily available to LAPD, i.e. upload to the NR platform, which costs nothing.11
If this weren’t the case an agency could, e.g., refuse to email a 100KB record as an attachment but instead insist on writing the bits on slips of paper and sending them over by priority carrier pigeon delivery at a cost of $6,520.12 The only difference between this plan and Detective Kris Tu’s idiotic theory that $5 is the “direct costs of duplication” is the amount of money involved. Any argument which supports the one charge also supports the other. Which is why the five dollar charge is not allowed.13
And that is the first part of the story, the part about the CPRA request and LAPD’s outlaw refusal to handle it properly. Now let’s talk about what to do about it! It’s a huge and well-understood flaw in the Public Records Act that the only enforcement mechanism is a lawsuit. And the Act doesn’t authorize requesters to file petitions to enforce every requirement of the law, but only “to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter.”14 And agencies habitually, egregiously exploit this flaw.
They print electronic records on paper to make them very less useful, but it’s not denying access. They combine a thousand PDFs into a single gigantic PDF but in scrambled date order to make it impossible to understand the progression of events, but it’s not denying access. They charge unauthorized fees, like this $5, which aren’t individually high enough to constitute a denial of access, but which add up to prohibitive amounts over time. The variations are endless and at present there is very little to be done about it.15 Except maybe in the City of Los Angeles there’s another possible enforcement route!
The Los Angeles Municipal Code at §49.5.5 says:
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.
This applies to LAPD officers, who are agency employees.16 My theory is that violating the Public Records Act is a misuse of position. The City of Los Angeles doesn’t (openly) hire people whose official duties include violating the Public Records Act. Therefore any violation is a misuse of position. But the code doesn’t forbid misuse of position per se, only misuse to create or attempt to create a private advantage or disadvantage.
And Kris Tu and Thanh Su proposing to charge me $5 for a CD to transfer data when they provide data to others via direct download for free certainly creates a disadvantage for me. And the disadvantage is private because it’s directed at me personally.17 Not only that, but the Los Angeles City Ethics Commission investigates violations of LAMC 49.5.5, and sometimes they even find violaters guilty and fine them over it! They did this with LAPD Sgt. Jim Parker in 2016, for instance. So I wrote up the facts and filed a complaint with Ethics and you can get your copy here!
It can take Ethics years to resolve a complaint, and they famously refuse to reveal whether they’re still investigating or if they’ve dismissed or what. So I’m not expecting fast results, but it’s at least plausible that LAMC constitutes a viable alternate route for CPRA enforcement in LA City. I mean to file as many of these complaints as are viable, and we’ll see if it helps!
The fact that Tu is a sworn officer suggests a slightly different enforcement possibility as well. He took an oath to support the law and the Constitution of California. The Constitution of California requires compliance with the Public Records Act.18 So I also filed a complaint about his violation in particular with his supervisor, Lt. Marla Ciuffetelli. My feeling is that every violation of the CPRA by LAPD Discovery is a violation of Tu’s oath of office and I plan to file complaints for each one.
One problem is that delay in itself isn’t necessarily a violation, and most of LAPD’s violations involve just endless delay. Also probably this method won’t work well for situations where it’s not completely apparent that there’s a violation. But LAPD ignores the CPRA so consistently and in such a weird variety of ways that there will be plenty of material, and I will use all of it!
UPDATE: After I filed the complaint and just before I finished writing this I figured out that Buzzsprout actually does allow anyone to download copies of podcasts although the method is pretty obscure.19 This shows Tu’s claim that LAPD “lacks” some imaginary “special software” that’s putatively “necessary” to download the podcasts to be an even more pathetically stupid lie than it previously appeared. With only minimal effort he could have actually complied with my request but instead he chose to break the law in order punish me. He’s a moron and you can get all 24 episodes of the LAPD podcast right here on Archive.Org!
- LAPD invents brand new previously unimagined ways to violate the CPRA. But they’re not good ways, where good means effective and safe for the violator. In fact mostly the reason they’re new is because even assuming anyone else thought of them, they’re so incredibly and transparently stupid and wrong that mostly people wouldn’t consider actually doing them. And then there’s LAPD.
- Some of the messages between me and LAPD are visible at the link and others are only visible to me when I’m logged in. Visibility is controlled by LAPD and they approach it entirely randomly. I asked them to publish the whole thing and instead they published only part. But it’s a public record. You can ask to see all of it.
- UPDATE: After I wrote this I figured out how to download the files from Buzzsprout. It’s not obvious at first but it does turn out to be possible! This doesn’t ruin this post at all, by the way, it makes it that much more interesting!
- The issue of charging for copies of electronic records is especially problematic. More on this below.
- Note also that by this point, LAPD Detective Kris Tu, a sworn officer who runs the CPRA section, was writing the responses himself. This is important later in the story.
- This correspondence concerns your CPRA Request, No. 20-4427, to the Los Angeles Police Department (Department), originally submitted on July 7, 2020, which sought “audio files for all ‘Our LAPD Story’ podcasts.” On July 9, 2020, the Department responded to your request by providing you with a link to the ‘Our LAPD Story’ podcast on the Department’s web site (http://www.lapdonline.org/videos_podcasts), as well as a link to the Department’s podcast hosting and publishing page, which is located at https://www.buzzsprout.com/203568, and which contains all episodes of the ‘Our LAPD Story’ podcast. On July 9, 2020, in response to the Department’s message, you stated that you knew how to listen to the podcast and that you were seeking “copies of the files” of the podcast episodes.
The Department has conducted a search for audio files containing the ‘Our LAPD Story’ podcast episodes, and has identified two audio files in its possession, for the April 13, 2020 and June 30, 2020 podcast episodes. Please note that, due to the large file size of the podcast episodes, the Department typically does not retain separate copies of the audio files on its computers, system, or external media (such as compact discs or thumb drives), but rather uploads the audio files onto its podcast hosting and publishing page at https://www.buzzsprout.com/203568. The Department does not have the technical capability to download the podcast episode audio files from its podcast hosting page, as it lacks the necessary special software to do so. Pursuant to Government Code Section 6255, it would be unduly burdensome for the Department to procure such software for the purpose of downloading all of the podcast audio files onto a compact disc, when the podcast episodes are readily available online on buzzsprout.com, as well as on multiple streaming services and podcast applications.
The Department can provide you with a copy of the April 13, 2020 and June 30, 2020 audio files by placing them on a compact disc, which can be made available to you via U.S. Mail or for in-person pick-up upon a payment of a fee of Five Dollars ($5.00), which represents the direct cost of producing copies of the audio files on a compact disc. See Govt. Code § 6253(b); Govt. Code § 6253(1)(2) (noting that the “cost of duplication” for electronic records “shall be limited to the direct cost of producing a copy of a record in an electronic format”); Rubio v. Super. Ct., 244 Cal.App.4th 459, 466, 483, 487 (2016) (holding that costs of copying electronic records includes the cost of the compact disc onto which the records are placed).
You can send the payment to or pick up the record at Los Angeles Police Department – Discovery Section, 200 North Spring Street, 19th Floor, Los Angeles, CA 90012. The Department will provide the disc to you upon receipt of payment. Please let us know if you would like us to mail the disc to you (and, if so, to what address) or if you would prefer to pick it up.
- I checked an external 8TB hard drive on Amazon for $145, called 8TB 8000GB even though it’s more than that, and divided!
- Some ongoing CPRA requests will shed more light on the question of what LAPD actually does with its podcast files.
- Like I said above, I very recently learned that it’s actually possible to download the files, although the links are a little hard to find, or were for me, anyway.
- Probably the implausibility is part of the point. The psychology of cop lying is too complex for me to understand, let alone explain here. Something to do with lying under oath to an audience that knows you’re lying but either doesn’t care because it serves their purposes or else can’t do anything about it because the judge is in the first group. Something to do with lying to reporters who don’t actually care because they need a quote and they’re mostly paid to support the status quo anyway. Something to do with lying to citizens who know you’re empowered to kill them on the spot without consequences if they question you. Something to do with a million things I don’t know.
- Obviously it doesn’t cost nothing. The City of LA is paying for the service. But the marginal cost of using NR to transfer a file is zero and that’s all they can charge.
- The pigeon service charges $16.95 per priority pigeongram with a maximum message size of 260 bytes. And 100,000 bytes divided by 260 bytes per pigeon is 385 pigeons, which is rounded up because it’s pigeons, for god’s sake, which are bad enough without fractional pigeons in the mix. Finally, 385 pigeons at $16.95 pigeons is essentially $6,520.
- Tangentially, after claiming they could charge $5 to mail me a compact disk, LAPD cited a whole list of statutory sections and case law, not a single one of which actually supports their claim. This is an incredibly common tactic among obstructionist responders. To succeed at CPRAology you must always look up every citation and check that it says what they’re saying it says. It very, very often does not. Not uncommonly it says the exact opposite.
- This is at §6258.
- And I’m skipping another huge problem with lawsuits being the only enforcement mechanism, which is that they’re slow as hell, complicated, expensive, and for these reasons and more pretty much out of reach of ordinary requesters. And even when they find the resources to file one, or even thirty or forty, large public agencies can afford to induce suit after suit after suit in a (relatively) cheap attempt to wear out requesters. This is an appallingly effective strategy that the City of Los Angeles is deeply invested in.
- I’m skipping over the full analysis of why it applies to LAPD officers. The definitions for the chapter are found in §49.5.2.
- That is, if they all of a sudden started requiring every requester to pay $5 for access to records it would be a misuse of position because it’s a violation of the CPRA, it would create a disadvantage for requesters, but it wouldn’t be a private disadvantage since it applies to everyone equally. It would still be illegal but not a violation of 49.5.5. As always please keep in mind that I’m not a lawyer and that my amateur analyses are as likely as not to be wrong, maybe even stupidly wrong. I did subject this one to the MK.Org legal analysis challenge, which is that I explained it to more than zero lawyers and fewer than all of them laughed at it, so at least there’s that!
- At Article I Section 3(b)(7).
- I don’t listen to podcasts much and it’s entirely possible that people familiar with the genre could have found this much more quickly.