California city charging $3,000 deposit to mother seeking records after son killed by police

Theresa Smith has been trying to unseal all the records into her son's death for the last decade. And last month, the city of Anaheim, Calif. said that would finally be possible -- as long as she put down a deposit of  $3,000.

"Are they crazy?" Smith asked. "We had to scrape by just to pay for a funeral. I certainly can't come up with that kind of money." 

Smith requested this information through a Public Records Act seeking certain police files that are now public under a new law, SB 1421, that took effect on Jan. 1. The type of files are limited and they include: If an officer was found by superiors to have lied or had an inappropriate sexual relationship on the job, or if officers used force where a person was killed or suffered great bodily injury.

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As many jurisdictions in California, including Contra County County and Southern California, are seeking to block the release of these files arguing that anything created before this date should be kept private, others, such as Anaheim, are complying with the new law, but they want to make sure that it's not at the taxpayer's expense.

"Anaheim has prepared for and stands ready to respond under the new law," city spokesman Mike Lyster said in an email. "In doing so, we must balance our use of public resources on behalf of everyone we serve. As a city, though, we must always safeguard the use of public money. In some cases, a request under SB 1421 could result in hundreds of thousands of dollars of public resources to compile."

Lyster added that the first person to request the information would be charged the most, and then "subsequent requesters would only have to pay smaller fees" directly related to creating copies.

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Smith has been trying to get all the information, including a trove of videos from police, ever since her son, Caesar Ray Cruz, 35, was shot to death on Dec. 11, 2009 by five Anaheim police officers. Four of the officers said they fired because they saw Cruz reach for his waistband and believed he was going for a gun. A tipster had told police Cruz was carrying a gun, but he didn’t have one on him when officers fired, the Orange County Register reported.

Cruz was a father of five who had worked in warehouses and done manual labor after being laid off from a telecommunications job, his mother said. Anaheim police were acting on an informant’s tip that Cruz was selling methamphetamine and had a gun, according to the appeals court opinion. 

Smith said he was on his way to pick up his children from school when he was killed. She and her relatives eventually settled with Anaheim for $150,000.

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On Jan. 1, the Oakland-based Justice Team Network, one of the nonprofits working on Smith's behalf, filed a Public Records Request seeking all the relevant files under the new law.

On Jan. 28, Senior Assistant City Attorney Kristin Pelletier wrote that records clerks will have to review 37.5 hours of audio and video at a cost of $80 an hour. The city added two full-time police positions to compile and redact responses, which also require legal review to ensure Anaheim is respecting the rights and privacy of all involved, the city said. The city attorney asks the network to put down a deposit of $3,000, which could become more expensive as the work progresses. If the process is less expensive, then any excess money would be returned. 

Anaheim isn't the only city charging money to fulfill these requests. Burlingame, for example, is seeking to charge KTVU more than $3,000 to redact 29 audio and video files related to an officer who was fired for having inappropriate sexual relationships on the job. 

And still other police departments, such as Rio Vista in Solano County, are releasing documents and video for free. KTVU received two discs full of Internal Affairs reports and several videos at no charge. 

Like Burlingame, the city of Anaheim cited the court case, National Lawyers Guild v. Hayward, as the basis for the decision to charge "extraction costs onto the requesting party."

But in a previous interview, the American Civil Liberties Union disagreed with the interpretation of that ruling. 

“That decision is not binding precedent because the California Supreme Court took the case,” argued ACLU of Northern California spokeswoman Leslie Fulbright. “Our position remains that the PRA was designed to give the public access to records, and does not authorize charging excessive fees."

For now, Smith is hoping that the ACLU can argue on her behalf to waive her fee. In the meantime, she set up a GoFundMe page to help other families in similar situations.

"My concern is for others," she said. "Most families don't have that kind of money."