KPBS Suing For Public Access To San Diego Sheriff’s Department Response Times To Citizen Complaints
Tuesday, January 22, 2019
Photo by Claire Trageser
For the past seven months, KPBS has been asking the San Diego County Sheriff's Department to give information on how long it took to respond to complaints made about its employees. The Sheriff's Department has denied these requests made under the California Public Records Act, and so KPBS is taking the department to court.
Lawyers working for KPBS petitioned Tuesday in San Diego County Superior Court to ask a judge to decide whether the Sheriff's Department has to provide the records.
Why KPBS Requested Records
KPBS asked for the information on how long it took to respond to complaints after multiple women accused Deputy Richard Fischer of sexual misconduct and said they reported the conduct to the Sheriff's Department but never received a response.
One woman, identified in court documents by her initials K.P., said after Fischer groped her during a traffic stop, she sent two letters to the Sheriff's Department in March 2016 and November 2017, but no one ever responded. The Sheriff's Department said it never received the letters. More than a year later, the Sheriff's Department reached out to K.P. after another woman filed a lawsuit over Fischer's behavior, according to court documents.
Fischer is now facing criminal charges for multiple sexual assaults, with a trial scheduled to begin in April. To date, 21 women have filed civil lawsuits against Fischer and the Sheriff's Department, said James Mitchell, a lawyer representing many of the women. Four cases have been settled, and the rest are on hold until Fischer's criminal trial is complete.
What KPBS Asked For
KPBS initially asked the Sheriff's Department in June 2018 for the dates all complaints were filed about its employees from 2011 to 2018, and the dates the Sheriff's Department responded to each complaint. We did not ask for the complaints themselves nor the names of officers involved.
The Sheriff's Department denied that request, citing two different parts of the law. The first, Government Code section 6254 (f), is part of the California Public Records Act and lists a series of records that a public agency can keep private. Those include certain records of law enforcement investigations.
Timeline of KPBS Requests
June 22, 2018: KPBS sent a request to the Sheriff's Department for the dates all complaints were filed about its employees from 2011 to 2018, and the dates the Sheriff's Department responded to each complaint.
July 2, 2018: The Sheriff's Department denied the request.
July 5, 2018: Lawyers working for KPBS sent a letter to the Sheriff's Department disputing the reasons for the denial and asking the department to reconsider.
July 16, 2018: The Sheriff's Department again denied the request.
Oct. 5, 2018: After working with the San Diego Police Department to secure the same records requested of the San Diego Sheriff's Department, lawyers working for KPBS sent a letter to the Sheriff's Department offering to work with them to help them comply with the request.
Oct. 22, 2018: The Sheriff's Department again denied the request.
However, the same portion of the law says specifically that law enforcement agencies should provide "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."
Matthew Halgren, a First Amendment specialist at the law firm Sheppard Mullin who is representing KPBS, said courts have held that the exemption does not apply to law enforcement personnel investigations. And even if the exemption did apply, he said, KPBS's request for times of complaints and responses is written into the law as records that must be made public.
"The exemption has an exception. The exception says even though some records relating to investigations may be withheld, the police and sheriff's departments need to provide information relating to the time of the complaint and the time of the response to the complaint," he said. "That's exactly the information that KPBS requested, so it's right there in the text of the statute."
The Sheriff's Department also cited Penal Code section 832.7 when denying KPBS's request. That statute says personnel records of law enforcement officers should be kept confidential.
Halgren said because KPBS is not requesting the details of the complaints, but just the dates complaints were received and responded to, he does not believe that portion of the law applies to KPBS's request.
"You can understand why personnel records should be protected. You don't want to disclose, for example, a police officer's private telephone number," he said.
He said in previous cases, courts have been clear that the law keeping personnel records private only applies to information that can be linked to a specific police officer.
"KPBS has only asked for the information regarding the dates of the complaints and the dates they were responded to, and clearly that information, if isolated from other information, would not be able to be linked to any specific police officer," Halgren said.
After Halgren and James Chadwick, another Sheppard Mullin attorney representing KPBS, filed the petition for writ of mandate on Tuesday, KPBS contacted the Sheriff's Department. In an email, Lt. Karen Stubkjaer responded, "We respectfully decline to comment on pending litigation."
New California Law Brings More Transparency
A new law that just went into effect gives the public the right to see personnel records of law enforcement officers who are under investigation for things like shootings, other use of force and sexual assault. While that law does not apply to all of the records KPBS requested, it could compel the Sheriff's Department to release the records of Richard Fischer, the deputy facing charges of sexual assault, Chadwick said. He added the new law also highlights the Legislature’s intent to require transparency.
KPBS also requested complaint response times from the San Diego Police Department to compare them to the San Diego County Sheriff's Department. In contrast to the Sheriff’s Department, the Police Department complied.
Sheriff's Department's System For Handling Complaints
The San Diego County Sheriff's Department does not have a consistent system for handling complaints, said Dave Myers, a 35-year veteran of the department. He retired last summer after unsuccessfully challenging Sheriff Bill Gore in the June 2018 election.
"The Sheriff's Department has a policy that anybody at the department at any level can receive a complaint from citizens, or internally, and anybody at any level is encouraged, per the policy, to handle that complaint at the lowest level possible," he said.
He said that means a clerk working the counter at a station could talk to someone from the public, and if that person "appears to be or says that they're satisfied, then the complaint at that point is closed."
"There's no other documentation, there are no other discussions," he said. "There may be a follow-up email, maybe to an immediate supervisor, and that would be the end of it."
Myers said that it's a "very subjective process" to decide what complaints are documented. If a complaint is documented, the response to that complaint is also supposed to be documented, he said.
But Myers said the way the process is currently set up is "ripe for abuse."
"If the public cannot trust law enforcement to police itself in a fair manner that's transparent, then how are they going to trust that the process is working?" he said. "To me, it's very easy. Any type of complaint is received, the complaint is immediately documented. We have technology today to where it's extremely easy."
Last summer, San Diego Sheriff's Lt. Christina Bavencoff described for KPBS the process of how complaints are handled. All complaints are time and date stamped, she said, and are responded to with a letter.
"But if someone sends a letter every day, we may not always respond to every one," she said. Once a complaint is investigated, the department will send another letter letting the person know the findings.
However, she said some complaints are handled verbally. For example, "If someone comes to the station to complain about getting a ticket, they want to tell their side of the story, then we'll ask, 'what would you like me to do?' and they might say, 'tell the deputy to be more professional,' so we'll say, 'yes ma'am, will do,'" she said.
In cases like that, when verbal complaints are resolved in a conversation, they might not be documented, she said.
In 2017, the Sheriff's Department investigated 69 complaints against its employees. Of those, 51 were sustained, meaning "a true finding supported by facts," according to its Internal Affairs Statistical Report.
Lawyers working for KPBS petitioned Tuesday in San Diego County Superior Court to ask a judge to decide whether the San Diego County Sheriff's Department has to provide the records.
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