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The District Attorney’s Office responded last week to our fight against its $1,354 fee for public records.

I’m going to dissect that response here.

First, some quick background: We want some data about a controversial gang charge used by prosecutors. The district attorney wants us to pay $1,354 for it. Open government advocates call a substantial part of that bill outside the law, so we’re not agreeing to pay it.

The highlighted sentences below are from a statement by district attorney spokesman Paul Levikow, which we published last week. My responses are below.

The District Attorney’s Office is committed to transparency and to complying whenever possible with requests made under the California Public Records Act.

At the same time, we are also committed to protecting the taxpayer from having to foot the bill for a significant amount of time and resources responding to what often amounts to a fishing expedition.

“Fishing expedition” implies that we are searching blindly. That’s wrong.

We specifically requested a copy of data about the gang charge because judges, researchers and defense attorneys have questioned its use. The data would show how San Diego prosecutors have systematically used the charge in the last decade.

In the past three years, our office received 118 formal requests under the California Public Records Act. During that time, we requested fees to provide copies of records 15 times. This is not done to prevent the public or the media from obtaining public records — it’s done to protect the taxpayer from having to pay for such requests.

The District Attorney’s Office has failed to explain how using its existing network servers to copy data would impose any additional costs on taxpayers. And the office wants to charge us for some existing equipment they’ve already paid for — like computer cables and the shelves their network servers sit on.

As a law enforcement agency, there are also times when we are required to deny public records requests because of very real security or investigatory concerns.

This is not one of those cases. The data would include the same type of information that can also be found in thousands of paper and microfilm court files throughout the county.

In their recent post, the Voice of San Diego says “for months the District Attorney’s Office has refused to discuss the charges…” This is incorrect.

You can click here to read all of the correspondence that has occurred between the Voice of San Diego and our office over the past three months about this records request. As you’ll see, we have responded to each inquiry regarding charges for the requested statistics and have tried to help the Voice of San Diego narrow the scope of its request so it can get relevant statistics without having to reimburse us.

Yes, please read the correspondence. You’ll find that the district attorney refused my requests to meet with IT staff to learn whether copying the data actually affects normal business operations or the office’s budget in any way.

For months, the District Attorney’s Office has refused to discuss the charges in a meaningful way.

In the Voice of San Diego’s recent post, it is claimed that our estimate of computer services and programming fees is not proper under California law. We stand by the opinion that it is proper and legal — and that it follows the spirit of the law.

The law says, “The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.” We explained why open government advocates call the district attorney’s bill outside that law here.

If the Voice of San Diego had merely requested copies of existing paper records, a costs-only copying fee would be appropriate. But instead, the Voice of San Diego asked us to create a completely new electronic record from our Case Management System database.

False. We did not ask the office to create new data. We asked the office to copy the data it already has. You can read the exact wording of our request here.

A fee for that type of work is found in Government Code section 6253.9(b), covering production of electronic records under the California Public Records Act. It reads:

(b)… [T]he requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies:…
(2) The request would require data compilation, extraction or programming to produce the record.”

There is nothing “vague” about this provision, as the Voice of San Diego has asserted.

The vague part of the law is “programming and computer services” and what types of services that language actually describes.

The vast majority of government agencies — including many in San Diego County — have interpreted that language to only mean that they can charge for writing database queries, because new programming can take a lot of staff time and affect normal business.

The District Attorney’s Office has interpreted that language to mean that it can charge for writing database queries and using its existing network servers. It has not explained how using its network servers would affect staff time, normal operations or its budget in any way.

But let’s get back to what prompted this public records request in the first place: the Voice of San Diego’s desire to report on gang enhancement charges. Our office has already spent a good deal of time discussing gang enhancements with the Voice of San Diego — and we were happy to do so. One of our prosecutors spoke at length with Mr. Kyle on the topic for this piece that was posted on the Voice of San Diego’s website in December.

Yes, thank you again.

The Voice of San Diego also states that some un-named defense attorneys and researchers expressed “skepticism” that a connection might exist between some of the pimps we prosecute and gangs in San Diego.

We named those defense attorneys and researchers here, in the December story Levikow just provided a link for.

Locally, indeed nationally, street gangs are using prostitution to finance their criminal activities and recruit new members. While pimps are often gang members, the gang enhancement is only alleged when we can factually substantiate the connection between their pimping and their gang.

I reported this information in the December story.

These gang members are violent, dangerous criminals who are committing serious crimes in our neighborhoods and exploiting vulnerable young women. The District Attorney’s Office will continue to file any charges that we believe we can prove beyond a reasonable doubt in court. That is our duty as prosecutors and our commitment to our community.

It’s not a question of whether the pimps are gang members. The issue is whether the crime is committed for the benefit of gang activity. That’s a novel argument being made by the district attorney, and why we wrote about the prosecution’s tactic back in December.

It’s unfortunate that the Voice of San Diego’s focus has shifted from a genuine desire to learn more about the serious nature of gang prosecutions…to a blog about when messages are left and when phone calls are returned.

We still want to learn more about gang prosecutions — it’s why we’re fighting to get this data.

We remain available to discuss how and when the gang enhancement is filed against a defendant and our office’s efforts to reduce gang violence in the county. But we will not allow the taxpayer to pay for public records requests that tie up valuable resources and personnel.

Please tell us how copying data ties up shelves, computer cables and backup storage space that taxpayers have already bought for your office. Most of the bill involves computer work that requires no staff time and no additional purchases whatsoever. And the amount of time the office has spent trying to justify its bill has clearly surpassed the amount of time it would have taken to simply copy the data.

Many journalists in San Diego will tell you that the DA’s Office has good working relationships with them and the media outlets they represent. They would also say our office goes out of its way to provide statistics when requested. Most of the time, we provide stats without the filing of a formal public records request. In fact, we have even formed a committee that assists us in responding to media requests for statistics accurately and in a timely manner to help reporters who are on deadline.

True. Prosecutors have quickly turned around statistics, confirmed basic case information and even copied small databases for free in the past. The office’s response to this request, however, is the exception.

The bottom line is the District Attorney’s Office works on behalf of the People. As such, we will continue to pursue justice for crime victims, to assist the media and be transparent whenever possible — and protect the taxpayer when appropriately responding to public records requests.

Stay tuned for more DA Watch.

— KEEGAN KYLE

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