Oakland police have not yet released tear gas report and thousands of other public requests

Oakland police deploy tear gas after a youth-led rally for George Floyd. June 1, 2020 (Frank Sosa)

Oakland police have not released a self-assessment on officers’ use of tear gas eight months after lobbing the chemical agent into a crowd of students, families and seniors following a youth-led rally, missing a self-imposed deadline to do so. 

And the release of this report, and whether police acted overzealously on June 1, 2020 during a George Floyd protest, might not come for another two months. 

"That’s the bare minimum of what a police force needs to do," said Xavier Brown, a sophomore at UCLA who co-organized the June 1 youth rally at Oakland Tech, and who wants to see an in-depth analysis of what led up to his friends being tear gassed. "It’s not anything to applaud, get excited about. That is the bare minimum that they should do."

In addition, the Oakland Police Department has also not answered public records requests from KTVU and other organizations seeking this information -- and nearly 6,000 other requests -- which is a violation of state law.

Lawyers suing Oakland and other cities that also lag behind in releasing public records say this is a troubling pattern. Police departments are among the most powerful branches of government, they say, and their actions should not be kept hidden. For his part, newly sworn-in Oakland Police Chief Leronne Armstrong is vowing a new era of transparency. 

In an interview with KTVU on Feb. 9, Armstrong said that the department has hired an outside investigator to look into what happened.

 "I'll make sure I bring to the public the outcome of that investigation," he said. "I'll be transparent with the public."

As for when this investigation will be complete and ready for release?

"I don't have an exact date," he said. "But I anticipate in the near future it will be completed. I've been briefed on the investigation. I feel confident it's moving forward. And hopefully, it will be coming to an end in the next 60 to 90 days."

In an email, police spokeswoman Johnna Watson said that the uses of force and complaints generated in the George Floyd protests resulted in a series of investigations and Force Review Boards. Each Force Review Board will have a separate report. At this time, the investigation and reports will likely be completed in May.

"There will not be one tear gas report," her email said, "there will be several Force Board and Internal Affairs reports, which will include the use of chemical agents."  

The outside firm, Clarence, Dyer and Cohen, is conducting the assessment of how police reacted during the summer George Floyd protests, KTVU has learned. But police did not answer how much the department is paying for this independent review, or what the scope of the investigation entails. 

Armstrong had originally told the Oakland Police Commission that he would release such a report by July 15, 2020, to let the public know if officers acted within policy. He also told the commission: "If we made mistakes, we'll acknowledge those mistakes." 

A week later, then-Police Chief Susan Manheimer wrote an open letter to the community, saying the report would be ready by Dec. 1, 2020.

Both those dates have long passed. 

The lingering question is what prompted Oakland police to use tear gas and non-lethal projectiles at the crowd following the youth-led rally about 7:45 p.m. near police headquarters.

Armstrong at the time said the crowd had turned violent and police thought they were being attacked with Molotov cocktails. But dozens of witnesses said that account isn't true, and to date, police have provided no evidence of the Molotov cocktails. 

At least 20 people suffered injuries, whether they were blasted with too much tear gas or burned by projectiles, according to a civil lawsuit filed against police. One person was blinded in the eye and others suffered broken bones, according to a civil rights federal lawsuit. 

"We are eagerly awaiting these two valuative documents and we’re pushing them but they keep saying they’re not done," said attorney Dan Siegel, who filed the suit on behalf of those injured by the tear gas. 

Siegel emphasized that Oakland police must produce these evaluative documents, not only to answer his civil rights lawsuit but because it’s necessary as part of the federal court oversight of the police department in effect for nearly the last 20 years. 

The tear gas report is one of the thousands the Oakland Police Department has not yet made public. 

"The Public Record Act requires Oakland police to respond to public records act requests within 10 days," said Sam Ferguson, an attorney suing Oakland police on behalf of several independent journalists over outstanding public records requests. "Oakland has a backlog of over 5,600 cases, some dating back as far back as 2014. The Oakland police department shows utter disdain for basic transparency applications."

The public should care deeply that these documents haven't been released. 

"Transparency is a basic aspect of democratic self-government," Ferguson said. "Taxpayers have a right to know how the government is spending its money.  This is especially important for the Oakland Police Department, which has an unfortunate history of excessive use of force, police shootings, corruption scandals, sexual abuse. The public has a right to know what’s going on." 

The need for police transparency has never been more important, Ferguson said, especially in light of the public’s mistrust of police since the killing of Geroge Floyd. He also said that Oakland police have been under federal oversight for nearly 20 years, in part, because of the "terrible relationship" with the community. 

"When you don’t have sunshine on an agency, terrible things like this tend to happen," he said. 

Ferguson’s suit alleges that Oakland police are withholding all sorts of documents, from small to big. And that they have known about this problem since 2014. 

"The requests that the department are ignoring run the gamut," he said. "Some are as basic as incident reports, which citizens need if they’ve been robbed in the city of Oakland. The Oakland Police Department won’t even process basic requests for a single sheet of paper."

Ferguson said he holds both the police department and the city attorney, who must review records before they are released, accountable for the backlog in records releases.

A recent survey by Oakland's Public Ethics Commission regarding public records requests showed that more than half of 849 respondents said they didn't get records and 60% said they were very unsatisfied with their experience.

The vast majority of these requests were for police reports. Many people said they were crime victims who need these reports for insurance reasons. One man said he needed his arrest report in a case where he was charged so he could pass a background check to get work. 

In an email, City Attorney Barbara Parker said that she is dedicated to transparency, but "during the past few years, the sheer volume" of Public Records Act requests has increased dramatically. Oakland does not receive special or additional state funding to handle these requests, "which often require significant, time-consuming work to collect, review, redact, and produce documents."

Parker added that police transparency record requests are often thousands of pages and may be stored only in hard copy or off-site, often contain sensitive information that must be "meticulously reviewed."

She also said that the City Attorney’s Office does not play a significant role in responding to most public records requests.

"Most requests are handled directly by the departments, who may seek City Attorney legal advice regarding issues such as redaction, protecting privileged information, or withholding information that is not disclosable," she said. 

In an email, Watson said that the Oakland Police Department Records Division has approximately 5,376 open Public Records Requests and 4,171 are backlogged. Several weeks ago, she said, the department was authorized to increase the staffing to seven. 

Oakland isn’t the only city or police department withholding or lagging behind on fulfilling public records requests. 

Tenaya Rodewald, a First Amendment lawyer with the firm, Sheppard and Mullin,  has sued Richmond, San Jose, Contra Costa County, El Cajon and National City -- all for refusing to release records, or not releasing them in a timely fashion. The San Jose case just settled and the police department there will soon begin releasing records much faster. 

Rodewald said this isn’t just a bureaucratic issue. 

"All of us should care," she said. 

Police departments have "enormous power in society. They can arrest people. They have guns," she said. "And yet they’re one of the most secret, one of the most obscure branches of our  government."

And keeping what police do as secret, she said, "fuels this growing distrust of law enforcement."

Both Ferguson and Rodewald said that they have heard that police are understaffed to comply with the requests and that cities are strapped now, especially during the pandemic. But they also both said that police budgets comprise the largest slice of any city budget and it wouldn’t be that expensive to add a few more records clerks to get the job done. 

"You can’t sacrifice the core principles of society because of a little bit of a budget shortfall," Rodewald said. "It doesn’t actually take that many people to review these records and get them out the door."

Aside from lawsuits, a bill authored by state Sen. Nancy Skinner (D-Berkeley), would not only expand what kind of police records must be public, but the legislation would also allow courts to issue civil fines of up to $1,000 a day for not releasing records in a timely manner. 

As for Brown, the co-organizer of the youth rally, he isn’t all that surprised that police have not made good on their promise to look inside and figure out if they did anything wrong. 

But he said it’s this acceptance of police behavior that could be to the department’s detriment. If police only were more forthcoming, Brown said, there might not be this huge rally and cry to dismantle and defund them.

"If you can’t see if you were at fault as an organization,  as a police department and show that ‘OK, we have flaws, let’s work on this, this and this,’ well then, how can you reform?" 

EDITOR'S NOTE: This story was updated on March 9 when the city attorney responded.

Lisa Fernandez is a reporter for KTVU. Email Lisa at lisa.fernandez@foxtv.com or call her at 510-874-0139. Or follow her on Twitter @ljfernandez