Nearly six years ago, a group of Bay Area journalists and privacy activists sued Oakland’s police department for its failure to respond to thousands of public records requests over many years.
To settle the case, OPD agreed to clear its massive backlog of public records requests and, going forward, to comply with the Public Records Act, the state law that guarantees transparency in government by requiring agencies to share documents, data, and other information upon request.
The settlement was supposed to guarantee that OPD would release routine records, like tow reports, as well as more sensitive materials, like investigations of police shootings and officer misconduct, much more quickly. The city also agreed to pay $127,500 in attorney’s fees and costs.
One of the plaintiffs, journalist Scott Morris, said at the time that the agreement should make OPD more transparent. But, he added, “I have my doubts as to whether the city will fulfill its obligation.”
Morris was apparently right to be skeptical.
His attorney, Sam Ferguson, has been monitoring OPD’s compliance with the settlement. According to Ferguson, the department has violated many of its terms. Now, Ferguson is threatening to drag Oakland back to court.
“While we hope to resolve these violations short of judicial intervention, we will pursue legal remedies if OPD fails to correct them, including an award of court costs and reasonable attorneys’ fees,” Ferguson wrote in a letter to the city attorney last month. Ferguson’s co-counsel is Annie Cappetta.
City Attorney Ryan Richardson did not respond to an interview request.
Ferguson told The Oaklandside that OPD initially cleared the entire backlog of requests under the settlement agreement. But he said he sent OPD a letter last month because the department has been backsliding, and “it’s gotten to a point where it’s really out of hand.”
Alleged delays in handing over records, generic forms, and blown deadlines
Under state law, the Oakland police are required to respond to public records requests within 10 days, telling requesters whether the department has responsive records. Under certain circumstances, the department can extend its time to respond by no more than 14 extra days.
Ferguson claims to have found that OPD failed to perform this basic step for numerous requests. These include, according to Ferguson, routine requests for incident reports, as well as matters of significant public interest. One example he cites is a request filed by the attorneys who represent the mother of Doug Martin, the ex-NFL player who died during a struggle with OPD officers last October. The attorneys asked OPD for personnel records related to Martin’s death, but after more than four months, the department still hasn’t shared whether it has any records, according to Ferguson.
The attorney also cites two examples of journalists who asked for records that should be simple for the department to identify and hand over within 10 days. One of the journalists sought an incident report, and the other data on the outcomes of an internal investigation of misconduct complaints. In both cases, Ferguson claims the requesters have waited several months with no response.
According to Ferguson’s review last month of NextRequest — the online portal where Oakland processes most records requests — there were 1,168 open requests to OPD, and more than 900 were considered past-due.
Ferguson claims that OPD has abandoned another promise it made to provide individualized responses to records requests. The department instead relies on form PDFs that are sent to virtually every requester. Ferguson points out that OPD frequently uploads the same file as a boilerplate response. As an example, he notes that a form containing the same typo was sent to many different people over the course of several months.
“This repeated use of the exact same form PDFs — without so much as doing an individualized proofread for typos — patently violates the settlement conditions,” Ferguson wrote.
Under state law, agencies like OPD aren’t obligated to turn over records within a specific timeframe. But under the Morris settlement, the department agreed to give requesters specific estimates for when it would turn over records for commonly sought materials. For example, OPD promised to tell requesters that the maximum estimated time for releasing a crime report would be 15 days.
But according to Ferguson, OPD has repeatedly provided estimated timeframes that don’t comply with the settlement, in some cases giving estimates that are twice as long as what the department agreed to. Ferguson also found that OPD routinely leaves requests open past the estimated disclosure deadline, sometimes for years.
Ferguson is demanding OPD immediately change how it responds to records requests moving forward to be in compliance with the settlement and state law. He has also instructed the department to provide lawful responses and meaningful productions to the backlog of all overdue open requests within two months.
Ferguson said it’s important for government agencies to comply with the California Public Records Act for a host of different reasons. But it’s especially important for the police. “Because they’re authorized to use lethal force, [police] are probably the most important type of organization for which we need transparency,” Ferguson said.
OPD did not respond to an interview request for this story.
In recent years, the department has complained that it’s been inundated with hundreds of requests every month — far more than any other city department, and that it lacked adequate staff to handle the deluge. In OPD’s latest budget, the city agreed to fund roughly 45 records specialists and a handful of supervisors. According to a recent city staffing report, all but a handful of those positions appear to be filled as of February.
OPD isn’t alone in violating state transparency law. As The Oaklandside reported last October, members of the City Council have flagrantly disregarded the California Public Records Act by ignoring dozens of our records requests.
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