These Government Records Will Stay Hidden From the Public - Voice of San Diego

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These Government Records Will Stay Hidden From the Public

Over the past year, VOSD reporters sought information on everything from teacher misconduct to police shootings to stadium contracts. Here’s why government officials say those records should stay hidden from public view.

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In many ways, 2019 was a great year for public records: SB 1421 went into effect, opening up some police misconduct records to public view. A state proposal that would have effectively gutted the Public Records Act died a quick death.

That doesn’t mean securing records from government agencies is easy. The government can cite a broad range of exemptions in order to keep records private – and each agency interprets those parameters differently. We’ve had stories, for example, in which one agency outright denies a records request and then another agency with access to the same records eagerly hands them over.

Here is some of the information we tried to get our hands on this year but that will stay out of public view for now.

Several San Diego police agencies use drones. How, and for what? It’s not clear.

We sought video footage and internal flight logs from six San Diego police agencies using drones. Only the Carlsbad Police Department and Escondido Police Department handed over internal logs describing drone activity. And only the Carlsbad and Chula Vista police departments provided video — albeit select video.

Camera-equipped drones in law enforcement have gone from novel to widespread in recent years, so the public ought to know how they’re being deployed. Plus, privacy groups like the Electronic Frontier Foundation fear drones hold the potential to spy on citizens.

As a sample of the denials, the San Diego Sheriff’s Department said this in an email: “Records of a law enforcement investigation, or any investigatory or security files compiled by a law enforcement agency are exempt from disclosure.”

Attorney Steven Miller, who specializes in drone matters at the Northern California law firm Hanson Bridgett, said it appears courts haven’t weighed in on which police drone records are public and which aren’t — part of larger legal uncertainty around the technology.

Police shooting records must now be disclosed to the public, yet these ones are still out of reach.

On Jan. 1, a landmark public records law went into effect requiring California law enforcement agencies to make certain records public – including instances in which police deployed deadly force.

But as the year comes to a close, the San Diego Police Department has still claimed it does not have to release investigation records under SB 1421 on certain officers, including Neal Browder, who shot and killed an unarmed man in the Midway district in 2015. Browder also accidentally fired his gun into a baby’s crib less than a year later.

SDPD has not released records on either incident.

The family of Fridoon Nehad, the man killed by Browder in the 2015 incident, has filed a federal lawsuit against the department over the shooting. A protective order shielding those records from public view has been put in place as a result of the lawsuit, though the ACLU and others have called for the order to be dropped so the public can have a clearer view of what happened.

As for the incident in which Browder fired his weapon into a crib, SDPD is relying on two words within SB 1421 that they say allows the department to keep the records private. Though the law does open up police shooting records, it says that police must make public records involving “An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.” Because Browder’s accidental discharge wasn’t directed at a person, SDPD has declined to make records of the incident public.

Oh, you thought that was it for police records denials?

In February, a 10-year veteran of the Escondido Police Department was arrested in Riverside County and accused of public intoxication and resisting arrest. But what followed was more interesting than the charges. The Escondido City Council had been informed of the officer’s arrest, but only after someone had sent elected officials a letter questioning how the internal investigation was playing out.

After getting tipped off to the letter, we asked for all written communications between the city manager’s office and members of the City Council and the mayor, but officials denied the request citing attorney-client privilege. The communications were confidential, officials argued, because the city attorney had been involved in them. How wasn’t entirely clear.

So instead we countered that the public’s interest in the matter outweighed the exemption. We questioned whether the city wasn’t actually protecting one of its own employees for personal reasons, but that didn’t work either. Officials responded that releasing the records would create due process concerns associated with a fair and impartial administrative investigation. The reasoning seemed circular — the impartiality of the investigation itself was in question — but we moved on to other battles.

This one wasn’t a denial, but it might as well have been.

Because they rely on the same consultants, many police departments around San Diego are governed by the same policy manuals. But as we discovered this summer, they’ve been known to release different versions of those manuals publicly because they interpret state public records law differently.

Some released the manual without any major redactions. Others, like Carlsbad, went wild with the blackouts, eliminating entire pages of text under the “catch-all” exemption. Governments typically cite this when they believe information ought to be kept confidential for the benefit of the public.

Citing the catch-all exemption, Carlsbad released its police policy manual in August with entire pages blacked out.

This example has a nice ending, though. Our laughing about the redactions on Twitter caught the attention of other journalists and open government types. Days later, a public records attorney from San Francisco sent over an unredacted copy of Carlsbad’s police policy manual. He said someone else had requested it from Carlsbad after seeing tweets about it, and the city released it whole.

We’ve obtained hundreds of pages of school sexual misconduct records. But some will stay hidden.

In November 2017, Voice of San Diego requested public records from all 43 public school districts in the county in related to substantiated sexual misconduct by employees dating back 10 years.

Some school districts provided the records willingly. Others, like Coronado Unified and La Mesa Spring-Valley, were less forthcoming.

We’ve had to go to court to shake public records out of those districts. Meanwhile, San Diego Unified delayed producing most records for more than a year. More than two years later, we’re still seeking records from Poway Unified and Coronado Unified.

Coronado Unified

In March 2017, a former middle school student alleged Coronado High School water polo coach and physical education teacher Randall Burgess raped and assaulted him on the high school campus. Burgess has since retired.

Coronado Unified initially produced nothing to VOSD, then later disclosed a handful of documents showing complaints and reprimands of non-teaching staff only.

Coronado Unified officials actually did initially identify records pertaining to the Burgess case and planned to release them to VOSD, but reversed course when another attorney for Burgess threatened to sue the district if it released them.

Now, we’ve been in court for nearly two years to obtain records on Burgess. The district continues to refuse to release the records, which includes an investigation report into the allegations. Coronado Unified’s attorneys have claimed a third party conducted a thorough probe into the allegations, and that investigators were not able to substantiate the claims.

Burgess has been cleared of sexual abuse allegations by Coronado Unified and the San Diego district attorney’s office.

So, why do we continue to fight for records on Burgess’s case? Investigations into educator abuse vary wildly from school to school because state and federal law leave plenty of room for interpretation when it comes to what those investigations should look like.

Coronado has never disclosed what went into their investigation of Burgess. Yet because the investigation did not substantiate the claims, those records will likely stay hidden.

Poway Unified 

Voice of San Diego reported that two Poway Unified teachers who were ousted for relationships with students kept working in education. The records we obtained from Poway Unified in response for our November 2017 records request revealed the district agreed not to mention to future employers that the two high school teacher had been forced out for sexual misconduct.

After we reported in 2018 that Poway Unified agreed not to tell prospective employers that two of its teachers had been ousted for having sexual relationships with students, readers flooded us with complaints about other Poway Unified employees who they suspected had harassed or abused students and colleagues.

Among them were Tim Medlock and Derek Peterson. Records show both men sent inappropriate text messages to students but were allowed to keep their jobs. Poway Unified didn’t initially provide records on either of them in response to VOSD’s records request because it said it didn’t categorize either incident as “sexual.”

Now, we’re seeking additional records on Medlock case and two other Westview High teachers, but the district has so far refused to provide them.

Oceanside Unified

As part of our 2017 request, Oceanside Unified gave VOSD three pages of emails from 2016 indicating a former substitute teacher was under investigation by NCIS for allegedly molesting a third grader at Stuart Mesa Elementary on Camp Pendleton in 2008. Oceanside Unified was contacted by the parents of the student, and notified the California Commission on Teacher Credentialing, according to the email by the district. District officials said the teacher worked for Oceanside from May 2007 to June 2015, and, “The District was unaware of the allegations during Mr. Thornton’s employment, and therefore his separation from employment was unrelated to these allegations.”

Voice of San Diego sought his case file from NCIS to determine whether the teacher was ever prosecuted or convicted of the reported crime. Instead, we ran into a shield of federal privacy laws.

“NCIS records are not considered public information. While certain information is releasable under the provisions of the FOIA, NCIS utilizes certain FOIA exemptions when it comes to the release of information to 3rd party individuals.  Alternatively, you may provide proof that the subject of your request is deceased, or demonstrate that the public interest in disclosure outweighs the personal privacy interest of the invidual (sic) and that significant public benefit would result from the disclosure of the requested records,” an NCIS representative wrote in an Oct. 17 email.

VOSD pressed to find out under what kinds of circumstances NCIS would disclose criminal charges levied against the teacher or a criminal conviction, and whether prosecution in such a case would be handled by military court or another court. VOSD was directed to a webpage of select NCIS case disclosures in the past, and directed to call the NCIS public affairs office. But mailboxes for the local public affairs offices were full and unable to accept messages.

NCIS wrote again Nov. 1, “Since you have not furnished a release, death certificate, or public justification for release, NCIS cannot release records concerning a third party.” VOSD was informed of an appeals process via the FOIA website, or directly by mail to the Judge Advocate General of the Navy. The online system would not permit VOSD to appeal, and VOSD has yet to appeal the determination to the judge or reach a dispute liaison.

A spokeswoman for the San Diego County District Attorney’s Office referred VOSD to Oceanside police, but Oceanside police said they did not investigate the crime because it did not occur in their jurisdiction. Oceanside police said they did not investigate the crime because it did not occur in their jurisdiction. A spokeswoman for the San Diego County District Attorney’s Office said the case was never referred to the DA for prosecution.

SDSU doesn’t have to show its math.

When SDSU and its supporters made the case for Measure G in 2018, the university promised that the redevelopment of Mission Valley stadium land would not need taxpayer funding nor would it rely on student fees or, in the worst case, raise student fees to finance the deal. University officials specifically cited spreadsheets and revenue models its consultants – particularly JMI Sports – had created.

We asked for those documents. The university refused, and we ended up in court.

Although it did not at first, in court, the university cited an exemption to the California Public Records Act related to real estate documents. “The contents of real estate appraisals …. Made for or by the state or local agency relative to the acquisition of property … are except from disclosure until all the property has been acquired or all of the contract agreement obtained.”

We challenged that, making the case the university had essentially just come up with that argument too late to justify its decision to withhold the records.

“On the merits of the exemption, SDSU has demonstrated the documents sought fall under this exemption,” ruled Judge Ronald L. Styn.

The judge also ruled that it was better for the documents to stay private. Voters want the deal mandated by Measure G to be done, and he didn’t that voters need the information to make informed choices.

“To the contrary, the public’s interest would not be served if the SDSU is unable to purchase the property because of public scrutiny over SDSU thought process and/or decision-making in its negotiation with the city regarding the purchase and development of the property,” Styn wrote in his final ruling.

Sometimes you lose in court, and this was VOSD’s first public records court loss.

Federal officials won’t shed light on whether Rep. Duncan Hunter will keep his pension.

Following news Rep. Duncan Hunter pleaded guilty to felony conspiracy and agreed to resign after the holidays to end a campaign finance corruption case, Voice of San Diego sought details about the congressman’s pension from the U.S. Office of Personnel Management, which fields questions about the Federal Employees’ Retirement System. Congressional pension rules appear to require pension forfeiture following a felony conviction of certain offenses, including conspiracy to commit an offense. Hunter pleaded guilty to conspiracy to convert campaign funds to personal use. Because his misconduct covers most of his tenure as a congressman, as outlined in his plea, it’s possible he’ll lose most or all of his congressional pension as a result, a scenario reported by Miriam Raftery for East County Magazine.

To find out how much pension money is on the line for Hunter, VOSD asked OPM how many years of pension service credit he has, whether he will accrue more credit in January and what Hunter’s pension would normally total at this point in time.

Federal officials declined to provide any pension information for Hunter.

An OPM public affairs officer told VOSD on Dec. 9, “Unfortunately, we cannot answer your questions,” and directed VOSD to file a FOIA request.

In response to a FOIA request for the information, the OPM retirement operations email account wrote VOSD Dec. 11, “Unfortunately, we are unable to process requests from a Power of Attorney, family members, or friends. If the person you are trying to assist is able to handle their own affairs via the telephone, please have them speak with one of our customer service representatives at 1-888-767-6738.”

VOSD responded asking if there were any circumstances in which the office could provide the pension amount and years of service credit accrued by a congressman, and was told the request was unclear.

“Unfortunately, we are unable to determine how we can provide assistance to you. Please resubmit your request and include your name and retirement claim number,” the Dec. 12 email said.

For now, Hunter’s pension details remain obscure. One of his attorneys, Paul Pfingst, confirmed the conspiracy plea was a felony charge, but did not respond to a subsequent inquiry asking whether that would impact his pension.

Ashly McGlone, Kayla Jimenez, Sara Libby, Jesse Marx, Scott Lewis and Jared Whitlock contributed to this report.

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