Title
Hearing on Sunshine Ordinance Complaint Filed By Scott Morris on May 12, 2020
Body
To: Honorable Members of the Open Government Commission
From: Olson Remcho, LLP, Special Counsel to the Commission
Background
A. The Complaint
Complainant Scott Morris alleges that the Alameda City Attorney’s Office and Alameda Police Department improperly denied his request for documents under the California Public Records Act, Cal. Gov. Code § 6540, et seq. and the City of Alameda’s Sunshine Ordinance (Mun. Code § 2-92 et seq.).
On April 15, 2020, Mr. Morris submitted a request seeking identified items of information for every person arrested by the city police from February 1, 2020 to April 15, 2020:
The full name and occupation of every individual arrested by the agency, the individual’s physical description including the date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.
Exhibit A (S. Morris OGC Complaint,
May 12, 2020).
B. The City’s Actions
The City completed its production of all records responsive to Mr. Morris’s request on May 13, 2020, less than a month after receiving Mr. Morris’s request. In total, Mr. Morris received three productions of documents. Exhibit B (Email from A. Cohen to S. Morris, April 27, 2020) (first production); Exhibit C (Email from A. Cohen to S. Morris, May 12, 2020) (second production); Exhibit D (Email from A. Cohen to S. Morris, May 13, 2020) (third production). Although the City Attorney’s Office initially informed Mr. Morris that some of the information he sought was exempt from disclosure (see Exhibit B), the City nonetheless produced the full universe of documents that Mr. Morris had requested.
At that point, the records request had been satisfied and Mr. Morris and the City agreed not to set his complaint for hearing. Exhibit E (Email from L. Weisiger to B. Schwartz, May 19, 2020). In January 2021, however, Mr. Morris discovered that the City had classified his complaint as voluntarily suspended for purposes of its annual report regarding OCG complaints, and disputed the accuracy of that characterization. He then renewed his May 12, 2020 complaint and asked that it be set for hearing.
Discussion
Mr. Morris’s complaint is based on an assertion that the City improperly denied his Public Records Act request. As explained above, however, and as demonstrated by Exhibits B through D, the City provided Mr. Morris with all responsive records. Because Mr. Morris has received all that he has demanded, and there has been no non-compliance with the Sunshine Ordinance, there is no longer any controversy and the complaint is moot and unfounded.
The Commission’s authority with respect resolving complaints, as defined by Mun. Code 2-22.4, is to “hear and decide complaints by any person concerning alleged non-compliance with the Sunshine Ordinance.” If the Commission finds that a public record has been improperly withheld, the Commission “may recommend to the City steps necessary to cure or correct the violation,” and issue fines in the event of repeated, similar violations. Mun. Code § 2-93.8(b). Here, because the City did not deny Mr. Morris’s request and provided him the information he sought, there is no basis for finding any violation, and the complaint should be dismissed as unfounded.
The fact that the City Attorney’s Office interpreted state law to permit, and not require, disclosure of certain records that it ultimately produced to Mr. Morris does not provide a basis for a complaint. Under the Sunshine Ordinance, the Commission’s inquiry with respect to complaints is limited to deciding whether there has been any violation of the Ordinance and considering ways to informally resolve complaints. See Mun. Code § 2.22.1, 22.4(a) (Commission is authorized to decide complaints concerning alleged non-compliance with the Sunshine Ordinance); id. § 2-22.4(f). The Sunshine Ordinance does not provide authority for the Commission to issue declaratory relief or an advisory opinion, and the City Attorney’s Office’s legal opinion, which turned on an analysis of two complex court of appeal decisions and state statutes, does not amount to a violation of the Ordinance. Furthermore, that analysis is immaterial to the present matter, since the City voluntarily produced all responsive records to Mr. Morris notwithstanding the City Attorney’s legal analysis. Accordingly, there is no need for the Commission to address the City Attorney’s legal position on whether production of certain information to Mr. Morris was mandatory or permissive.
Moreover, as a general rule, it is the duty of adjudicatory bodies such as the OGC to decide “actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” See In re Schuster, 42 Cal. App. 5th 943, 951 (2019) (citation, internal quotations omitted). Because Mr. Morris’s request for information has been satisfied in full, his complaint is moot. Although in certain instances, courts may on occasion decide legal issues notwithstanding mootness, for example where such issues are capable of repetition yet evading review and of sufficient public importance1, the OGC has no such authority. As explained above, the Sunshine Ordinance does not provide that the Commission may issue declaratory relief or advisory opinions. Rather, the Commission’s role is limited to deciding whether there has been a violation of the Ordinance, and the City’s production of all of Mr. Morris’s requested records resolves that question.
Notwithstanding the above, it is important to further point out that the City (including the Alameda Police Department and the City Attorney’s Office) would be well within its right to only disclose contemporaneous arrest records. Indeed, the Alameda Police Department’s current policy is to only release 30 days contemporaneous arrest records. This policy is generally consistent with policies from other California police agencies and judicial guidance. Moreover, this policy appropriately balances the public’s right to information with the privacy rights of persons arrested and is reasonable in light of the police department’s limited staffing resources.
More specifically with respect to judicial guidance, in 1993, the Second District Court of Appeal determined that the legislative intent behind Section 6254(f)(1), requiring disclosure of arrest information, was to continue the common-law tradition of contemporaneous disclosure of individualized arrest information, to prevent secret arrests and mandate continued disclosure of basic law enforcement information. County of Los Angeles (Kusar) v. Superior Court, 18 Cal. App. 4th 588 (1993). After analyzing the plain language of Section 6254(f)(1) and (2) and its legislative history, the Kusar court held that disclosure of arrest information listed in 6254(f)(1) is only required for requests made contemporaneously with the creation of the record in which the requested information is contained.
While a later judicial decision determined that there is no contemporaneity requirement with respect to records of citizen complaints and requests for assistance under Section 6254(f)(2), it did not disturb the Kusar contemporaneity requirement with respect to arrest records. Fredericks v. Superior Court, 233 Cal. App. 4th 209 (2015). Accordingly, the Kusar decision remains controlling in this case and supports disclosure of only contemporaneous arrest records.
Recommendation
Special Counsel, on behalf of the Commission, recommends that the OGC finds the complaint to be unfounded on the following grounds:
1. There has been no violation of the Sunshine Ordinance.
Exhibits:
1. Exhibit A (S. Morris OGC Complaint, May 12, 2020)
Exhibit B (Email from A. Cohen to S. Morris, April 27, 2020)
Exhibit C (Email from A. Cohen to S. Morris, May 12, 2020)
Exhibit D (Email from A. Cohen to S. Morris, May 13, 2020)
Exhibit E (Email from L. Weisiger to B. Schwartz, May 19, 2020)
2. Draft Decision
1 See Eye Dog Foundation v. State Board of Guide Dogs for the Blind, 67 Cal. 2d 536, 540-41 (1967) (evaluating constitutionality of statute governing guide dogs notwithstanding plaintiff’s license having been reinstated where plaintiff had sought declaratory relief on that question); California Cannabis Coalition v. City of Upland, 3 Cal. 5th 924 (2017) (reviewing issuance of writ of mandate concerning constitutional interpretation after election had passed).