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Home / Articles / News / News /  District Attorney settles public-records lawsuit
. . . .
Wednesday, Dec 07, 2011

District Attorney settles public-records lawsuit

Citizens watchdog Mel Shapiro battled D.A. Bonnie Dumanis for months to learn about complaints against public officials

By Dave Maass
melshapiro Mel Shapiro finally got the records he wanted. So why isn't he smiling?
Mel Shapiro just won a legal settlement, but forgive the 84-year-old if he doesn’t look ecstatic about it.

The battle began on March 10, the day San Diego County District Attorney Bonnie Dumanis formally announced her candidacy for mayor of San Diego. A City Hall watchdog, Shapiro immediately filed a request under the California Public Records Act (CPRA)—a sort of citizen’s subpoena—to find out how effectively Dumanis’ office has investigated corruption and fraud perpetrated by politicians.

“Not only is she district attorney, she’s running for mayor, so I think it’s important for the people of the city of San Diego to know how she handles complaints against officials,” Shapiro tells CityBeat.

In his email to Dumanis, Shapiro asked to see all complaints against government officials received by her office since 2003. He had filed a similar request with Dumanis’ predecessor, District Attorney Paul Pfingst, in 2001. While Pfingst did not provide the complaints themselves, he did provide written summaries—24 in all—as required by the CPRA. Shapiro was expecting the same treatment from Dumanis.

Instead, Dumanis denied Shapiro’s entire request. He revised his request, and she rejected the revision. He revised it a second time. The DA rejected it again. In May, Shapiro sued Dumanis in Superior Court for an alleged violation of CPRA.

Last week, Dumanis caved. She agreed to hand over informational summaries of certain cases from between 2007 and 2011—15 in all—and to pay Shapiro $12,500 for legal expenses.

Shapiro says he didn’t glean much from the 15 cases (PDF) , but he did learn quite a lot about how Dumanis treats records requests filed by citizens. He notes that when voiceofsandiego.org reporter Will Carless began investigating the same issue, the District Attorney’s office cooperated quickly and provided a list of 88 public-integrity cases filed in court, along with summaries of the highest-profile prosecutions.

“The difference is, Will Carless works for a newspaper and I don’t,” Shapiro says.

This isn’t the first time Dumanis’ handling of public records has become the subject of media scrutiny. In 2010, voiceofsandiego.org alleged that Dumanis improperly inflated the costs of a public-records request related to gang data. In October, CityBeat wrote that the DA claimed five staff members spent $322 worth of labor compiling a two-page document, which turned out to be riddled with glaring typographical errors.

If elected mayor in 2012, Dumanis will set public-records policies for the entire city government. Her staff requested questions in writing for this story but didn’t respond to them by deadline. Instead, her campaign provided a brief statement.

“Open government is good government,” the statement says. “The District  Attorney’s Office is held to a different standard when it comes to releasing information, since the very nature of our work is investigatory and could jeopardize the prosecution of criminal cases. Fortunately, the Office of the Mayor doesn’t have those same kind of restrictions or limitations on what can be released.”

Passed in 1968, the California Public Records Act is a state law that requires government agencies to disclose documents, on request, to citizens. While powerful, the law is full of exceptions for everything from Social Security numbers to trade secrets. Many of the exemptions are discretionary, giving agencies the latitude to decide whether disclosing information would be more dangerous than beneficial to the public interest.

In its initial rejection of Shapiro’s records request for complaints against government officials, the DA’s office stated that it would exercise that discretion to the maximum extent possible.

“It is the general policy of this office to enforce any and all exemptions from CPRA disclosure for our case files,” Deputy District Attorney Richard Armstrong wrote. “Indeed, in responding to your request, this office claims, enforces and applies any and all applicable exemptions, privileges, proscriptions against public disclosure of records….”

Armstrong specifically cited an exemption that allows law enforcement agencies to avoid revealing documents from their investigations to the public. Having gone through this in 2001 with Pfingst, Shapiro asked for summaries of the basic facts, as required by CPRA.

In response, Armstrong said the DA would not provide summaries of closed cases because the law only applies to current cases. And the DA would not provide summaries of open cases, either, because that could endanger an investigation.

“When I looked at it, I saw there was a black hole of information that would never be dis closed,” Shapiro’s attorney, Craig Sherman, says. “That would obviate the entire purpose and paradigm of the code.”

The DA’s exemptions didn’t end there. Armstrong cited a long list of reasons why disclosing the information wasn’t in the public interest, including that it could somehow inhibit citizen reporting of wrongdoing or encourage people to use the complaint system as a “political weapon.” The DA also placed a lot of emphasis on the time and resources it would take to compile the request.

This year, Dumanis instituted a policy requiring staff to inform requesters of the costs of responding to their public–records requests. For example, Armstrong informed Shapiro it cost taxpayers $75 in staff time to write the first rejection of his records request. The second rejection letter bumped that cost up to $375. In the letters and court filings, the cost factor seemed to be the district attorney’s primary argument against compiling the informational summaries.

As Armstrong wrote to Shapiro in a memo that supposedly cost taxpayers $300: “[T]he public interest in avoiding expenditure of substantial District attorney resources in reviewing and preparing summaries of the numerous complaints about public officials received over more than eight years far outweighs any public interest in disclosure of those summaries at this late date.”

In other words, Dumanis believes citizens would rather save money than learn about accusations of malfeasance in local government. Shapiro understood that the request was burdensome and agreed to significantly limit the time frame. Even then, Dumanis said the request was too intensive.

According to a statement filed in court by Deputy District Attorney Paul Azevedo, who heads the office’s Special Operations division, he had identified at least 63 documents received between 2007 and 2011 that could fit Shapiro’s request. Another 82 documents were identified by staff—a total of 145 complaints.

“The Special Operations division is a relatively small unit within the office of the District Attorney and such a complete review and summary preparation would interfere with the management of the daily work performed by the division,” Azevedo said in the statement.

Dumanis’ decision may have cost taxpayers more in the end. A deputy district attorney of Azevedo’s caliber bills at an hourly rate of approximately $81. By CityBeat’s calculation, the DA could’ve assigned an attorney to Shapiro’s case full-time for three weeks and still have spent less than the $12,500 settlement. Avoiding a lawsuit would have also saved 74 hours of staff time for San Diego County Counsel, which represented the DA in court.

As part of the settlement, Shapiro further narrowed his request to only include high-level officials within the city of San Diego. He received 15 items, each with a brief description of the complaint and the action taken. The DA initiated prosecution in only one case, but Shapiro says it shouldn’t count because the defendant was a school clerk, not a true public official.

“That leaves 14,” Shapiro says. “Of the 14, she did not prosecute any. Her score is zero for 14. That’s sort of what I suspected.”


Email davem@sdcitybeat.com or follow him on Twitter @DaveMaass.




 
 
 
 
 
 
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