Brady, Giglio, and Police Misconduct Records (SB 1421 / Becerra v Superior Court) - Immediate Disclosure Request - SF District Attorney

twitter.com/journo_anon filed this request with the San Francisco District Attorney's office of San Francisco, CA.
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From: twitter.com/journo_anon

District Attorney Boudin and Office of the District Attorney:

NOTE: THE EMAIL ADDRESS SENDING THIS REQUEST IS A PUBLICLY-VIEWABLE MAILBOX. Please be certain you have properly redacted all of your responses. Once you send them to us, there is no going back. All of your responses (including all responsive records) may be instantly and automatically available to the public online via the MuckRock.com FOIA service used to issue this request (though the requester is an anonymous user, not a representative of MuckRock). Nothing herein is legal, IT, or professional advice of any kind. The author disclaims all warranties, express or implied, including but not limited to all warranties of merchantability or fitness. In no event shall the author be liable for any special, direct, indirect, consequential, or any other damages whatsoever. The digital signature, if any, in this email is not an indication of a binding agreement or offer; it merely authenticates the sender. Please do not include any confidential information, as I intend that these communications with the City all be disclosable public records.

Below are new Immediate Disclosure Requests (SF Admin Code 67.25(a)) directed to your agency.
Your initial response is required by Nov 4, 2020. Rolling records responses are requested (SFAC 67.25(d)) if you are unable to immediately produce records.
Exact copies of every responsive record are requested (Gov Code 6253(b)) - do not: provide mere URLs, print and scan electronic records, convert native files to PDFs, or provide black and white versions of any color record. Provide only copies of records not requiring fees and in-person inspection of all other records (GC 6253).

Your non-exhaustive obligations:
- All withholding of any information must be justified in writing by specific statutory authority (SFAC 67.27).
- All withholdings by masking or deletion (aka redactions) must be keyed by footnote or other clear reference to the specific justification for that redaction, and only the minimal exempt portion of any record may be withheld (SFAC 67.26).
- You must respond to emailed requests (SFAC 67.21(b)).
- You must notify us of whether or not responsive records exist and/or were withheld for each below request (Gov Code 6253(c), 6255(b)).
- You must state the name and title of each person responsible for withholding any information (Gov Code 6253(d)).
- Do not impose any end-user restrictions upon me (Santa Clara Co. vs Superior Ct, 170 Cal.App 4th 1301); so if you use a third-party website to publish records, please make them completely public without any login or sign-in or Terms of Service.

Your agency must do all of the above things in your response, and you cannot wait until we file complaints. We have and will continue to file appeals and complaints for every public records violation committed by the city (see rulings in our favor in SOTF 19044 Anonymous v City Attorney's Office, 19047 Anonymous v Breed, 19091 Anonymous v Office of the Mayor, 19098 Anonymous v SFPD, 19108 Anonymous v Herrera, 19112 Anonymous v Scott).

****** We have no duty to, and we will not again, remind the City of its obligations. Instead, we will file complaints for every Sunshine Ordinance or CPRA violation. We will continue to file complaints until the City's procedures are modified to fully comply with the Sunshine Ordinance and CPRA, without caveat or exception. ******

1. All Brady, Giglio, potential impeachment, or unreliable witness lists ever created by the District Attorney's office, including every version you currently retain in any form. Such records do not escape the exceptions to the exemptions of PC 832.7 merely because the persons do not work for your office, Becerra v Superior Court (First Amendment Coalition, 2020).

2. All Brady, Giglio, potential impeachment, or unreliable witness lists ever created by any other party in the possession of your office, including every version you currently retain in any form. Such records do not escape the exceptions to the exemptions of PC 832.7 merely because the persons do not work for your office, Becerra v Superior Court (First Amendment Coalition, 2020).

3. In simple terms, I want all SB 1421 records you have retained, and I want a quantity/existence/form statement, even if you believe their contents are exempt. Just like the AG in Becerra v Superior Court, if you retained any misconduct records you must release your own copies, regardless of what SFPD/DPA/SFSD do. But here's the full request: Pursuant to Becerra v Superior Court (First Amendment Coalition, 2020), provide all records (where "record(s)" is defined specifically by Penal Code 832.7(b)(2), and REGARDLESS of whether they are prepared by or for your agency or its employees) of all incidents involving the discharge of a firearm at a person by a peace officer or custodial officer; all incidents in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury; all records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public; all records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence. Note: The potential exception that the State AG may have under Gov Code 6255 / public-interest balancing test, which the Court of Appeal found may apply if Becerra had asked for it, DOES NOT APPLY TO YOUR OFFICE, pursuant to SFAC 67.24(g and i).

Do not destroy or discard any responsive records - we will appeal all withholdings or Sunshine violations.

FYI - If you haven't read Becerra v Superior Court, the Court of Appeals held: "We conclude, as a matter of statutory interpretation, that section 832.7 generally requires disclosure of all responsive records in the possession of the Department, regardless whether the records pertain to officers employed by the Department or by another public agency and regardless whether the Department or another public agency created the records. Although we also determine, as a matter of statutory interpretation, that the so-called “catchall exemption” of the CPRA, codified at Government Code section 6255, may apply to records that are subject to disclosure under section 832.7, our independent review leads us to conclude the Department did not adequately demonstrate that the public interest served by nondisclosure of the records at issue clearly outweighs the public interest in their disclosure. "

However, no San Francisco agency or official can use the catchall exemption/6255 due to SF Admin Code 67.24(g and i).

Thank you for your anticipated cooperation in this matter.

Sincerely,
Anonymous

From: San Francisco District Attorney's office

Thank you for your email. We cite Mayor London Breed’s March 13, 2020 declaration suspending Administrative Code sections 67.25(a) and 67.25(b) and her March 30, 2020 Temporary Modification of Public Records Law During COVID-19 Local Emergency for additional time to respond in light of the pandemic. Our estimate is that we will respond within fourteen additional days, but this may change. We but we will keep you informed and encourage you to check in.

From: twitter.com/journo_anon

Good evening,

SFAC 67.25(d) (rolling responses) is not suspended. You must provide records no more than 1 business day after you have reviewed those specific records. Namely, you may not wait until all of the records have been received and redacted.

Thanks,
Anonymous

From: San Francisco District Attorney's office

Please see the attached response.
Thank you.

From: twitter.com/journo_anon

Good evening. You received the request on Nov. 3.
You had until Nov 13 under Gov Code 6253 to reply within 10 days either determining that you the records are disclosable or not (you failed to do this) or declaring a maximum of 14 day extension to consult this other agency.

You have a total of 24 days, which is Nov. 27, to determine whether or not these records are disclosable. An appeal will be filed immediately if you fail to comply.

Sincerely,
Anonymous

From: San Francisco District Attorney's office

Thank you for your response. As we mentioned in our response yesterday, we are conferring with another agency and will send you a final response as soon as possible.

As we stated in our original email response, “We cite Mayor Breed’s March 30, 2020 Temporary Modification of Public Records Law During COVID-19 Local Emergency for additional time to respond in light of the pandemic”.

That being said, we are moving to process this as expeditiously as possible given the circumstances. Thank you for your patience and cooperation.
Sincerely,
SFDA Public Records

From: twitter.com/journo_anon

I'm referring to the CPRA, not the Sunshine Ordinance, deadlines. The Mayor has no authority to suspend any portion of the CPRA, which is state law. Because Nov. 27 is a holiday, your response determining which of these records are disclosable will be due the next business day.

If you have a good reason, like who is being consulted and why, then I'm happy to extend the deadline by my discretion, but I'll expect something more specific than what you have stated.

Thank you for your expected compliance with the law.

Sincerely,
Anonymous

From: San Francisco District Attorney's office

Thank you for the clarification. We will hopefully have a response to you by Monday. If it looks like it will take longer, we will let you know.

From: San Francisco District Attorney's office

Please find an updated response to your request. Thank you again for your patience.
Sincerely,
SFDA Public Records.

From: twitter.com/journo_anon

1) THe hyperlinks to your SB 1421 do not work in your pdf - please provide the full URLs in the email.
2) Since you have refused to within 24 days provide notice of disclosable public records for requests 1 and 2, appeals will be filed immediately.

--Anonymous

From: San Francisco District Attorney's office

Here are the hyperlinks you requested: https://app.box.com/folder/82573004142?s=7pj7dwzxm7025vjxmv24a1xfrpvtnpm9

https://sfdistrictattorney.org/policy/independent-investigations-bureau/

From: twitter.com/journo_anon

Thank you. Since you have denied access to some portions of records (i.e the SB 1421 redactions),
1) you must provide me the name and title of the person responsible for the denial pursuant to CPRA.
2) you must key each redaction by footnote or clear reference to a lawful justification, pursuant to SFAC 67.26

For example, the Police Commission uses https://cdn.muckrock.com/foia_files/2020/11/12/Commission_Redaction_Index.pdf as the key, and then puts the associated key number on every redaction in their SB 1421 records.

Have you forgotten to provide me this key, or has the DA not complied with that law?

--Anonymous

From: twitter.com/journo_anon

Since you have violated the law (SFAC 67.26) and refused to answer, further appeals will be filed.

From: twitter.com/journo_anon

Supervisor of Records Dennis Herrera,

This is a 67.21(d) petition for a determination in writing whether any part of the following records not produced by the DA (which is "your office" below) are public and an order for their disclosure.

1. All Brady, Giglio, potential impeachment, or unreliable witness lists ever created by the District Attorney's office, including every version you currently retain in any form. Such records do not escape the exceptions to the exemptions of PC 832.7 merely because the persons do not work for your office, Becerra v Superior Court (First Amendment Coalition, 2020).

2. All Brady, Giglio, potential impeachment, or unreliable witness lists ever created by any other party in the possession of your office, including every version you currently retain in any form. Such records do not escape the exceptions to the exemptions of PC 832.7 merely because the persons do not work for your office, Becerra v Superior Court (First Amendment Coalition, 2020).

--Anonymous

From: San Francisco District Attorney's office

Thank you for your inquiry. We will respond to your Supervisor of Records petition dated December 10, 2020, no later than January 15, 2021.

From: San Francisco District Attorney's office

Please see the attached response to your petition.

From: San Francisco District Attorney's office

To whom it may concern,
Attached please find the response to your public records request. As to the log detailing the redactions of our 1421 records, we are in the process of creating a log for each record. In the interim, we have posted the attached document on our disclosure portal: https://app.box.com/folder/82573004142?s=7pj7dwzxm7025vjxmv24a1xfrpvtnpm9.
Please let us know if you have any further questions.
Sincerely,
SFDA Public Records

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