Mr. Turner:

I have a suggestion. You should go to the next meeting of the San Bernardino City Council on September 1st (it probably is not going to take place due to the holiday) or September 15th to voice your concerns, so that your remarks is made for public record, as it will be reflected in the city council meeting minutes.

The city council deserves to hear your concerns, more importantly so does the residents in the City of San Bernardino.

You need a Writ of Mandamus, also called "writ" for short. It is a legal action that a person can use to demand that the government meet a specific obligation. Find a competent government attorney, they should be able to help you.

We at Cactusthorns.com have over the years dealt with local government's unwillingness to be transparent. Obstructionism is almost universal at the local level. Been there, done that and have a wardrobe of t-shits.

The problem with getting a Writ of Mandamus is two fold 1) finding an attorney that is not intimidated, 2) finding a judge to even hear the action.

This might be a time where editors of local political blogs should gather and unite as a single voice. Unfortunately while we are supposedly considered the Press, government refuses to place us on an equal footing with the MSM.

I would like to see local bloggers joining together in an association to share news, views and information to one another and our individual site readers. Each contributing content based upon their interest, knowledge and abilities. Think of it as a clearinghouse for local news and opinion in direct competition to the MSM. Each blogger covering their area of expertise. Through strength in numbers and readers a bloggers request for information would be given a higher degree of import.

Just a thought.

Mr. Turner is correct. The City should hire more staff to handle the volume of work we have. When the City Mangager's office can't give us the requested documents until two days before the legal deadline, and when the Mayor's office gives us the requested documents the day of the deadline, they are not going to be ready by that deadline.

We are required to remove any documents that deal with ongoing criminal investigations, personnel matters and litigation. That takes time, especially when the request is for hundreds of pages that we need to go through.

In this particular case, some of the documents covered by Mr. Turner's request may involve an on-going criminal investigation into the activities of a man awaiting trial for multiple counts of child molestation. Mistakenly releasing any of those documents could be a windfall for the man's criminal defense attorney. We would not want to release anything that might be used in this criminal case and I know Mr. Turner wouldn't want that to happen either.

Criminal defense attorneys are trained to use a process, called "discovery", which enables them to obtain, through the District Attorney, any and all documentary evidence they are entitled to in the case. The process is under the supervision of the courts and the defense attorney may obtain a court order, if necessary to enforce his/her righ to obtain such evidence.

Using a Public Records Act PRA)request to obtain information regarding an on-going criminal investigation is not permitted as a substitue for the evidence gathering procedures in criminal cases because the District Attorney is entitled to know what evidence is turned over to the defense attorney. Local officials might not be aware of the significance of particular documents and therefore, all discovery requests must go through the District Attorney in criminal cases.

To prevent defense attorneys from clandestinely using the PRA to skirt the discovery process the State Legislature has enacted a law exempting any information obtained in a criminal investigation from being produced in response to a PRA request.

Also, a number of documents covered by Mr. Turner's requests may relate to personnel matters of individual police officers. The California Police Officers Bill of Rights make all such documents confidential. Neither we, nor Mr. Turner, I am sure, would want to violate the rights of any of our police officers.

Mr. Turner came in yesterday and started going over the documents to determine which ones he wants copied. He is supposed to return today to review more documents, and I suspect that he will need at least part of one more day to finish his review.

I don't blame him for feeling frustrated. He is entitled to see most of the documents he has requested.

We have had staff work overtime to try and get them ready. Identifying all of the documents covered by his five requests was/is a big job for the City's Information Technology (IT)Department becasue many of the documents he requested are on city hard drives, seized under a criminal search warrant in the child molestation case. Those hard drives are in the custody of the San Bernardino County Sheriff's Office (SBSO)crime lab.

The Superior Court has ordered all of the evidence seized pursuant to the criminal search warrants in that case to be sealed. The City no longer has access to those hard drives. Therefore, the IT department has had to search through backed-up files on the City's main server, and then try to determine which documents they can find that are covered by Mr. Turner's request. Then, our office has to go through them and eliminate any that are covered by the search warrant/court order. We must also examine, as we usually do, all the documents to see if any are covered by personnel, litigation, or other criminal investigations.

Usually the City Attorney's Office gets these documents within the first six to fifteen days after the city receives the Public Records Act request and that leaves our office a few days to check them for personnel, litigation, or criminal investigation issues.

This time, due to the numerous documents covered by Mr. Turner's request, and due to the problem of not being able to have each city official simply go to his/her computer and pull the items up (because several of those computer hard drives are in the custody of the SBSO, and are sealed pursuant to court order) a speedy presentation of the documents was not possible.

I was just informed that Mr. Turner has asked us to copy all of the documents he requested and he will just take all of them instead of spending the time to go through the several hundred pages to determine which ones he wants.

We will calculate the cost of the copying (the amount is set by the City Council) and we will give Mr. Turner a bill for the full amount. After he pays that amount at the City Treasurer's window on the second floor and brings us the receipt, we will take the documents to the print shop in the basement and have them copied. When they are ready, we will call Mr. Turner and he can return and pick them up.

Mr. Turner has made Public Records Act requests before and, to the best of my knowledge, he has received all that he asked for and is entitled to receive within the time provided by law in those previous instances. This time, circumstances beyond our control, as described above, have resulted in the delay.

Jim Penman
City Attorney
City of San Bernardino

Mr. Penman:

Thank you for providing an explanation of the particulars surrounding this matter.

However, throughout this entire process, not one person in your office (including yourself) has ever sought to explain the situation to me and outline the above.

I have been exceedingly patient during this request and aside from one instance where I specifically asked John Wilson to return my phone call on the day my request was originally supposed to be filled (August 21st), not once has anyone in your office called me to keep me in the loop or offer status updates.

As of today, the request still has not been filled as the emails for Jim and Pat Morris have not been produced. Here I am, a month to the day of the request, and the information is not available.

While I can empathize with your predicament given your explanation as to the delays on the part of the Mayor's office and the City Manager's office, your office lost any goodwill by not simply communicating and discussing these matters with me.

Instead, I was never given any concrete answer or explanation as was essentially told that I would get the documents when I got them and tough, deal with it.

At the end of the day, I am entitled to these documents as you affirm. At the end of the day, it is not my concern as to who did what or didnt do something. I requested the documents and the onus is on the city to get them to me in a prescribed timeframe.

Again, had you or your staff returned my messages, inquiries and proactively kept me in the loop, I would have been annoyed but also more willing to work with staff and been more understanding.

I would also like to elaborate on my desire to have all the pages copied. Given circumstances that have occured in your office yesterday and today, I feel that your office has intimidated, harassed and impeded my ability to view these public documents. Of specific note, the assignment of a detective in your office to observe my review of the piles of documents.

Without expanding on this in the public domain, I feel that several matters have placed me in a vulnerable position and thwarted my ability to review these documents in my quest for transparency.

In summation, had either yourself or your staff communicated some of the matters you have expressed above, I believe that this unfortunate situation could have been avoided.

Finally, I have made several public information requests over the last couple of years. In every instance before this, I have received the information in a timely manner or been told in a timely manner that certain requested information was not available. While I have at times been annoyed with the lack of information provided in some requests, your staff has always responded in the prescribed timeframe. I do believe there might have been a request for a minor extension, but my memory is fuzzy on that.

Given the significance of the Operation Phoenix molestation scandal and the belief by many that politics is influencing the investigation and information released to the public, it is only logical for someone such as myself to question and grow frustrated with the lack of disclosure in a public information request and frankly, that was exacerbated by your staff's unwillingness to communicate with me some of the problems they were experiencing in their attempts to fulfill this request.

Thank you for your response,

Joseph Turner

You're welcome Joe.

I hope in the future we will be able to give you whatever you request in a more timely manner, and I appreciate you acknowledging that we have done so in the past. Also, thank you for the constructive criticism. We will try to improve our service in the future.

Jim Penman
City Attorney
City of San Bernardino