Council takes no action on proposal to charge fees for public records related to police misconduct

On Tuesday, the Richmond City Council failed to take action on a proposed amendment to the city’s municipal code to charge fees for audio or video records released by the Richmond Police Department under the California Public Records Act.

Under the proposal submitted by the Richmond Police Department, members of the media and the public would be charged for their requests. The fee, intended to charge enough to cover the cost of providing the service, applies only to previously private police misconduct records that have been made disclosable by new transparency legislation.

California Senate Bill 1421, enacted in January, has made a number of formerly-unreleased police misconduct records disclosable, including records related to officer-involved shootings, uses of force resulting in serious injury, on-duty sexual assaults and police dishonesty.

According to the proposal, the department anticipates that the number of requests will increase when a companion bill, Assembly Bill 847, is enacted in July. AB 847 requires departments to release video and audio recordings of “critical incidents,” a category covering much of the same ground as SB 1421.

Though the California Public Records Act (CPRA) prohibits charges for paper records beyond the direct cost of duplication, charges for redaction are allowed specifically for video and audio records, according to City Attorney Bruce Goodmiller.

According to the proposal, these charges would be based on the hourly wages of the police officers—a full time sergeant and a lieutenant, paid per hour at $134.93 and $153.09 respectively—who must review and redact sections of the files before they can be released. The proposal states that it will take three hours of staff time to review and redact each hour of audio with video, for an estimated labor cost of $864 for each hour of video that is released.

Information the police may redact from the records, according to the proposal, includes: personal data or information; data needed to preserve anonymity for witnesses; confidential medical, financial or other information either prohibited by federal law or constituting a serious invasion of privacy that clearly outweighs the public interest; and any information which the police have reason to believe would pose a significant physical danger to the officer or other people involved in the incident.

“Reviewing, redacting, and producing those records is extremely burdensome and time-consuming,” Richmond Police Department Chief Allwyn Brown said at the meeting.

Brown also said that the department allows requesters to view the unredacted records in their entirety, while supervised at the police department, so they can narrow down what they need. This is also one way requesters could view the files for free, according to Brown.

He also added that cost for records relating to critical incidents that are of wide public interest wouldn’t necessarily be that expensive, because the tape of such incidents are typically only a few minutes long.

At the meeting, members of the public spoke unanimously against the proposal to charge these fees. Richmond resident Don Gosney brought up the strenuous efforts police departments and police unions have made to fight against such transparency laws, and said that the proposed costs of the records seems punitive. He argued that the fees would make it almost impossible for regular people—not attorneys or multimillion-dollar media outlets—to even consider asking for audio or video records about themselves or a loved one.

“One thing that seems to be apparent from all of this is that not all peace officers are perfect. They’re just as human as the rest of us, except they get to carry a gun,” said Gosney, referring to both the police resistance to the release of records and to news coverage resulting from those records.

Mike Parker, a member of the Richmond Progressive Alliance (RPA) steering committee, questioned whether police officers should be allowed to review and redact the documents when the records relate directly to police misconduct.

Kabir Kapur, also a member of the RPA, suggested that the ordinance didn’t properly take into account financial and racial privilege. He criticized Brown’s suggestion that people could go to the department to view the files free of charge and noted that some people, especially those who have experienced police misconduct, might feel uncomfortable going to the department or having the police watch them while they view a video.

“We need to acknowledge people’s privilege in our unequal society and realize that the police don’t protect everyone the same way,” Kapur said.

The council was split on how to move forward with the item. Councilmember Jael Myrick proposed exempting fees for records requests that come from the immediate family—limited to parents, siblings and children—of a person who’s been involved in a disclosable incident.

Myrick’s proposal was partially in reference to the family members of Richard “Pedie” Perez, who was killed in 2014 by an Richmond police officer. Rick Perez, Pedie’s father and a regular at council meetings, spoke during the during public comment period about the heavily-redacted documents he received from the investigation relating to his son’s death.

“This is like a black hole,” Perez said. “It just sucks everything in, doesn’t even let light get out. The black hole is an amazing thing, but for the police department to be a black hole is not good.”

Myrick moved to approve the proposal with the added cost exemption, but his motion failed to reach a vote.

Councilmember Melvin Willis said that he agreed with Myrick’s intent, but he was unsure as to how the practice of charging fees for public records would fare in the future. He said he believed the item should be tabled, and noted that the American Civil Liberties Union (ACLU) has been involved in legal challenges regarding efforts to halt the release of documents under SB 1421. (In February, the ACLU represented Rick Perez in a court challenge in which six police unions, including one that represents Richmond officers, attempted to block access to records created before January 1, when the transparency law took effect. The court ruled in the ACLU’s favor.)

Willis said the city should work with the ACLU on the right way to handle these requests, and added that he didn’t want the city to start charging fees for some people but not others, and end up in a situation in which a court could rule that they shouldn’t be charging fees at all.

Mayor Tom Butt said he was opposed to adding the cost exemption for immediate families. He argued that it might be difficult to identify people who qualify as immediate family, and that the request system might potentially be abused by family members at a substantial cost to the department.

Councilmember Nat Bates made two suggestions as attempts to compromise. The first was a 50 percent reduction in the cost to immediate family, and the second was a 25 percent reduction, which Butt supported. “Those of you who thought I was incapable of compromise, you just saw a compromise,” Butt said.

No one seconded the first motion, so it didn’t move forward to a vote. Butt seconded the second motion, but it failed 2-2-2-1, with Councilmembers Ben Choi and Willis voting against, Demnlus Johnson and Myrick abstaining, Eduardo Martinez absent, and Bates and Butt voting in favor.

The proposal will be discussed at a future meeting.