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Prosecutor Confirms Records Sought By KPBS Exist In DA’s Office

Photo by Katie Schoolov

District Attorney Bonnie Dumanis speaks to the media, Aug. 20, 2013.

The office said it will decide by Monday whether to release records.

Records concerning a prosecution of Chula Vista officials are at the San Diego County District Attorney's Office after all.

A month ago, officials in the office of District Attorney Bonnie Dumanis said the records requested by KPBS did not exist.

KPBS asked the DA's Office in early March for records, including emails, about a call former Chula Vista Mayor Steve Padilla said he received from Dumanis in late 2005. Padilla said Dumanis asked him to appoint her aide to a vacant council seat.

A recent KPBS story noted that within weeks of Padilla's refusal, Dumanis began investigating the entire Chula Vista City Council without revealing her call to Padilla. In late March, the DA's Office told KPBS it did not possess records related to the request.

KPBS sent another Public Records Act request two weeks ago seeking the same records from Deputy District Attorney Patrick O'Toole. He oversaw the Chula Vista investigations. Within hours, O'Toole wrote that he had the records and sent them up the chain of command for consideration.

The DA's Office also told KPBS in March that records pertaining to the investigation are legally exempt from disclosure.

"To the extent your request is for 'records pertaining to or discussing the Padilla or Castaneda investigation, or any investigation pertaining to this,' these records are exempt from disclosure under the 'investigative files' exemption," wrote Deputy District Attorney Julie Reizen in a letter to KPBS.

Reizen also cited the "deliberative process" privilege.

But Peter Scheer, executive director of the California First Amendment Coalition, said neither of those exemptions apply to records such as emails discussing the call to Padilla, or how it might have affected subsequent investigations.

"The communications, the email communications that raised questions or doubts, were not part of the investigative file for the prosecution," Scheer said. "The deliberative process privilege is a much abused, very broad privilege. They have to justify a determination that the public interest in keeping it secret outweighs the public interest in making it public. There's no reason to keep it secret except to avoid embarrassment."

Scheer added that even if the records were legally exempt from disclosure, Dumanis could choose to release them.

The DA's Office said it will decide Monday whether to release the emails.

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