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- Kusar - Robertson Letter, 21 June, 2002
Ventura County Sheriff
Denial of Public Records Act

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20 June, 2002

Mr. David H. Robertson, Manager
Sheriff's Records
c/o 800 South Victoria Avenue
Ventura, California 93009
Tel: 805-654-3177
Main Tel: 805-654-2380
Main FAX: 805-645-1391

Re: Violation of California Public Records Act by Ventura county Sheriff's Records
Ref: Henry Nicolle letters dated 13 September, 2001; 08 October, 2001 and your letters dated 14 September, 2001, 11 October, 2001, and 15 January, 2002; and our conversation following your last letter.


Dear Mr. Robertson,

I appreciate the time and consideration that you have attached to this problem. This letter and request are the product of our correspondence and conversation.

Apparent Disagreement between California Legislative Intent and California Law Enforcement Customs and Policies
Our correspondence and conversation fairly differentiate the void between the people's intent to reserve to themselves full and continuous access to arrest and investigation records and California law enforcement customs and policies, including the policies of the Ventura County Sheriff, which withdraw and withold all such records except with limited access and only during an arbitrarily defined "contemporaneous" period of time.

Our meeting confirmed this disagreement over the appropriateness and lawfulness of law enforcement agencies to withold certain investigation and arrest information from the public, by applying a so-called "doctrine of contemporaneous access" to documents and information mandated by the people to be made freely accessible as a matter of law. You state that "Kusar" grants authority for this policy and I deny that the court in "Kusar" can offer any authority that has the effect of repealing the effect of the Public Records Act.

Generally, we appear to agree that California law enforcement agencies have a "different view" of our statutes than the People and their representatives in the Legislature. This difference of view cannot be tolerated. Our law enforcement agencies are creatures of the law and the People decide what our laws mean and how they are interpreted. If any agency for enforcing our laws contends that their authority to wield the physical power we have placed at their disposal is self-interpretive and unrelated to the legislative intent and the ultimate authority of the people, we may have a problem that exceeds the power of our governing institutions to remedy. My polite demand that the Ventura County Sheriff obey the law as it is written is not an unreasonable measure, one of many, to preclude any necessity of the people to find an irresolvable disatisfaction with our representatives, officials and public servants.

Disagreement has potential criminal enforcement as well as civil reprecussions
While the disagreement may be open to political question, it is not open to judicial and executive annulment as a matter of arbitrary law enforcement policy. To accept this condition of policy over law is to accept the rule of men, not law in the affairs of government. If the law as written, means exactly as the legislature wrote it, then policies which annul the intent of the law and interfere with public access to these records are void ab initio and government actors who may deny me access to these records under the ubric of such an unlawful policy may be prosecuted criminally, personal limited immunity voided by the illegality of their acts and they may be subject civilly to personal redress by offended Citizens.

Clearly, this disagreement can be tolerated neither by the people nor by their government. Uncertainty of the law and of lawful policies are not in the interest of either.

Therefore, I ask that you assist in resolving this disagreement by considering the contents of this letter and their sources, and if you find no lawful disagreement, to recommend to Sheriff Brooks that the existing and offensive secrecy policy of the Ventura County Sheriff be modified to comply with the mandatory disclosure provisions of the Public Records Act as written and as the people's representatives intended.

In the alternative, you may consider the information I have provided and continue to disagree with the law and the conclusions as I have offered them. We will then resolve the dispute either in our courts or on the political field. Please advise me in writing of your action, inaction or other intent responding to this letter.

County of Los Angeles v Superior Court (Kusar) (enclosed)
I have enclosed the case you and your advisors claim established the doctrine of contemporaneous access as is applied by Ventura Count Sheriff's records policy. This case is County of Los Angeles v Superior Court (Kusar) (1993) 18 Cal App 4th 588 [22 Cal Rptr 2d 409]. I will accept your researcher's finding that this case has not been over-ruled nor has the issue as stated by the court in Kusar been superceded up to this date.

The court in "Kusar" appears, and I emphacise my opinion, "appears", to have exercised extra-judicial collaboration in collusion with the County of Los Angeles and perhaps with other parties in order to establish a pre-determined outcome of this trial. As the court itself so aptly and accurately states, "This process requires that we first look to the plain meaning of the words used and their juxtaposition by the Legislature. ... We may not add to or alter those words in order to accomplish a purpose that does not appear on the face of the statute or from its legislative history." while in fact, the court did alter the juxtraposition in order to accomplish a purpose distinct from the issues and controversies actually before the court.

Contrary to the court's dicta, the adoption of a "doctrine of contemporaneous access" in constructing law enforcement policy implementing California Government Code Section 6254, Subdivisions (f)(1) and (f)(2) is a figment of the court's imagination, supported by neither the statute nor the legislative history of the law. (See Summary Critique, enclosed)

My understanding from your January 15, 2002 letter and from our conversation is that your personal knowledge of "Kusar" and the "doctrine of contemporaneous access" and your defense of this unlawful policy is based primarily upon the existance and approval by Sheriffs Carpenter and Brooks of this policy, your presumptions of correctness by your predecessor and of the preponderance of similar policies among your peers in the California law enforcement policy-making community, your personal reading of "Kusar" and the personal advice of a scholar who teaches Public Records Act classes. I believe your dependence upon these sources is unreasonable and in fact, may have lead you to false conclusions.


California Penal Code sections 11105 and 13300
I have examined your claim that California Penal Code sections 11105 and 13300 substantiate your authority to remove booking records from public viewing, but I fail to identify any support for your claims within these sections.

Other references to removal of historical documents from public access apply to documents of the Governor's office and cannot apply to the records and information we are discussing.

A search of the legislature's code server fails to deliver any reference to any authority for public officials to convert the records enumerated in the California Public Records Act in any manner so as to nullify the letter and intent of that Act.

California Public Records Act
The court in Kusar and the Ventura county Sheriff's disclosure policy err in their interpretation of the intention of the people as expressed by the California Legislature by the Public Records Act. The erroneous claim by the court and Sheriff that the people intend only contemporaneous access to the disputed categories of records and information is based on the highly restrictive conclusion that the only purpose for disclosure is to provide reasonable protection from secret arrests and detentions, and no other public purpose. This contention is categorically and provable untrue.

California Government Code Section 6250, reiterating the purpose of disclosure repudiates the logic of the court and the Sheriff. "In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state."

Individual right to privacy is the only fundamental statutory consideration restricting disclosure and this consideration is explicitely subordinate to the necessity for access by every person in this state to our records, because without continuous access, the oversight and management of the people's business is unreasonably impaired. No policy may deny a fundamental personal right, and no decision by any court can lie to support such a denial.

The California Public Records Act (ref. California Government Code Sections 6250, 6251,6252 and particularly Sections 6253 (a), 6253 (d). 6254 (f), 6255 (a) and 6257.5. expresses the people's intent.



Please do so no later than 30 August, 2002. If you wish to contact me in addition to your letter response, I may be paged at 805-939-7676 or contacted by e-mail via these three websites:

http://www.sheriffhenry.com/ <henry@sheriffhenry.com>
http://www.recall2002.org/ <henry@recall2002.org>
http://www.jail4judges.org/ <warden@jail4judges-ventura.org>


Sincerely,



Henry Nicolle
c/o POB 5633
City of San Buenaventura, California (93005)

Copy: Board of Supervisors
Bob Brooks, Sheriff
Counsel for the Sheriff
Michael Bradbury, District Attorney
Greg Totten, District Attorney (elect)



Summary Critique
of
County of Los Angeles v. Superior Court (Kusar) 18 Cal. App. 4th 588, 22 Cal.Rptr.2nd 409

Background:
The California Public Records Act expresses the inherent right of access by the Citizens of California to information collected and possessed by our representatives and public servants in the course of their duties. This access is a necessary prerequisite in the Citizens' continuing duty to monitor and oversee activities performed under their delegated powers.

California public officers, especially those tasked with creating and administering policies for the safekeeping of public information, utilize Kusar as the primary authority upon which to restrict the disclosures mandated by the Act to the time contemporaneous with the creation of the records.

In practice, this interpretation has improperly removed public records from public access. The error appears to have been deliberate and unchallenged.

Analysis:
(From the text of the OPINION by CROSKEY, J. in part)

Discussion:
1. Standard of Review and General Rules of Statutory Construction
[1] omitted
[2] The fundamental rule of statutory construction is that the court ascertain the intent of the Legislature from an examination of the statute as a whole. ... ...This process requires that we first look to the plain meaning of the words used and their juxtaposition by the Legislature and the ordinary import of the words. ... ...We may not add to or alter those words in order to accomplish a purpose that does not appear on the face of the statute or from its legislative history. ... ...

2. Properly Construed, the Scope of Section 6254, Subdivision (f)(1) and (f)(2), Is Limited to Disclosure of Contemporaneous Records of Current Police Activities.

***end of quote from court record***

Exploration:

The Issue:
"This case primarily presents a question of statutory construction. We must determine, in light of the statutory language, the legislative history, other relevant statutory provisions and applicable public policies, whether section 6254, subdivision (f), requires the disclosure of the information sought by Kusar."

The Discussion:
"[2] The fundamental rule of statutory construction is that the court ascertain the intent of the Legislature from an examination of the statute as a whole. We do this in order to be certain that our construction and application of the statute will effectuate the purpose of the law. This process requires that we first look to the plain meaning of the words used and their juxtaposition by the Legislature; and we are bound to give effect to a statute according to the usual and ordinary import of those words. We may not add to or alter those words in order to accomplish a purpose that does not appear on the face of the statute or from its legislative history. However, if more than one reasonable construction of the statutory language is possible, then we should look at the legislative history and other extrinsic aids to determine the legislative purpose and adopt the construction which most closely serves it."

The Conclusion:
"2. Properly Construed, the Scope of Section 6254, Subdivision (f)(1) and (f)(2), Is Limited to Disclosure of Contemporaneous Records of Current Police Activities."

In paragraph [3a] Judge Croskey misrepresents the language and composition of CGC 6254.

In the first instance, Judge Croskey suggests that the definition of disclosure and the intent of the Legislature by the Public Records Act Section 6254, Subsection (f)(1) and (f)(2) are prejudiced by a general exemption in the Act from disclosure of "records" and "files compiled".

Judge Croskey then concludes that if records and files are generally exempt from disclosure under the Public Records Act, then it followed that Section 6254, Subsection (f)(1) and (f)(2) should not conflict with the general exemptions.

The court then also concludes that disclosure (mandated by Section 6254, Subsection (f)(1) and (f)(2)) must reasonably be vitiated by the arrestee's initial arrest and limited to the actual period of initial physical custody. ("Concurrency Doctrine")

Judge Croskey's opinion transparently indicates that the court chose to alter the actual words and juxtaposition of the words of the Act in order to reach their conclusion that these particular disclosures mandated by the People's Public Records Act are strictly limited to contemporaneous access.

Judge Croskey's OPINION states that the Act provides that information must be disclosed that,

" ...must include ... (3) the location where the arrestee is then currently being held or, if not in custody, the time and manner of release, (4) the amount of bail set... ..."

A reading of the juxtaposition of the phrases (1) currently held, then, (2) or if not in custody can certainly be read to imply contemporaneous access, because if the person is no longer in custody, there may be no reason to view the pertinent records. (The court exercises this argument circumferentially to explain that contemporaneous access to Booking and arrest records prevent "secret arrests" and is in the public interest.)

However, this portion of the Act states to the contrary,

"... (11) the time and manner of release or the location where the individual is currently being held, ..."

In a fair reading of the Section correctly quoted, and using the same qualification as in the court's version, there is little question that these records are to be made accessible at all times, not merely contemporaneous with the arrestee's initial custodial status.

By this re-arrangement of the clauses of Section 6254, (f)(1), the court has altered the juxtaposition of the words of the Act in order to "accomplish a purpose". That purpose has the effect of judicial nullification of Section 6254, Subdivision (f)(1) of the Public Records Act and perhaps Subdivision (f)(2) as well.

Evaluation and conclusion:
The people's mandate for non-contemporaneous public access to arrest and investigation records as described in the pertinent sections of the Act is intended to provide political as well as practical access, "... the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (CaGovCode Section 6250)

In the case of Kusar, the court unlawfully restricts access to public records and so interferes with the people's ability to monitor and regulate their representatives and laws.


****************

This summary was prepared by:

Henry Nicolle
c/o POB 5633
Ventura, California (93005)
Pager 805-939-7676


- Kusar -
Sheriffhenry Commentary


- Kusar -
Gould Letter
and
Analysis


- Kusar -
Opinion


- Kusar -
Robertson Letter
19 Nov 2001


 
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