One of the big mysteries in the pepper spray incident was the identity of the second pepper sprayer. Both the police officer’s union, through the court system, and the university kept the second officer’s identity a secret, due in part to security concerns and the fear that the harassment suffered by Lt. John Pike would be visited upon the second officer.
The Vanguard published the name, Officer Alexander Lee back on March 27 after getting ahold of a photo from November 27 that depicted Officer A. Lee.
The Enterprise apparently had these photos, as well, as they reported: “Still photographs show the second officer’s name badge as reading ‘A. Lee.’ The Enterprise has been attempting to obtain the officer’s first name for months, without success.”
Records obtained from the university through the public records act shows the paper went to great lengths to get the university to directly release the name of the officer. And while the Vanguard applauds the Enterprise for their effort, sometimes the best way to get information is to go the less direct approach and get it through the side door.
What the Vanguard did was make a number of small records requests using known information, and filling in the full puzzle.
The Vanguard started with two critical pieces of information. First, we had the photo depicting a UC Davis police officer, A. Lee, pepper spraying students on November 18 – a photo first posted on November 29 on the Davis Wiki.
The Davis Wiki had also found the name Alexander P. Lee but his name was found in the campus directory as a security guard – a non-commissioned position, whereas the Officer A. Lee was depicted in the pictures as a UC Davis officer. The individual that discovered this let the Vanguard know that soon thereafter, the name disappeared from the campus directory, perhaps further confirming this is the right person.
From those two pieces of information, the Vanguard was able to tentatively, at least, confirm that he was an officer with the UC Davis Police Department when one of our assistants called the department and asked for him by name – seemingly confirming his employment. The fact that they would not let the caller leave a message for him instead seemed to confirm that he was off limits and therefore likely suspended.
This was enough for us to publish the first article with reasonable certainty. But not enough for the Davis Enterprise.
Reporter Cory Golden, in a comment, said, “The name of the blog is not referenced here because we’ve been unable to independently confirm A. Lee’s first name. It would be irresponsible for us to publish a first name that we do not know to be correct – or to point our readers to a blog that references a name we don’t know to be accurate.” He added, “It’s not meant to be disrespectful, at all. If it turns out to be accurate information, I’ll name the blog.”
Through a public records request with the university, the Vanguard obtained the duty roster for the week of November 14-18. That roster only contained first initials, but does let us know there is only one Officer Lee working for UC Davis.
The Enterprise, as we mentioned, went to considerable lengths to determine Officer Lee’s identity.
As a December 23, 2011 email from Chief Counsel Steven Drown to Debbie Davis, Editor of the Davis Enterprise, indicates, there was a meeting between staff of the Enterprise, along with CalAware’s Terry Franke and UC Davis officials to “discuss Cory’s request for the name of the second UC Davis Police Department officer who used pepper spray during the November 18, 2011, campus conflict.”
Mr. Drown argued that, under the circumstances of this case, the officer’s name is exempt from disclosure under the California Public Records Act.
Mr. Drown would argue that “the disclosure of the officer’s name, given other publicly available information, would indicate that the officer is the subject of a University internal affairs investigation concerning the November 18 incident.” He adds, “It was my view that this information is a confidential personnel record under Penal Code section 832.7 and 832.8, which cannot be disclosed to the public unless a ‘Pitchess Motion’ has been granted by a reviewing court.”
So here you have a case where the UC Davis Chief Campus Counsel argues that this is protected under Penal Code Sections 832.7 and 832.8 and a few months later, at least initially, UC’s General Counsel Charles Robinson is arguing the opposite.
Mr. Drown added, “As you know, the name of one of the officers, Lieutenant John Pike, became widely known due to his identification by onlookers and widely broadcast electronic media. The name of the second officer is not widely known.”
“To disclose the name of the second officer now would disclose the fact that the officer is subject to an internal affairs investigation, which is confidential personnel information exempt from disclosure under the authorities described above.”
Mr. Drown then went on to cite Copley Press v. Superior Court of San Diego County, where the “California Supreme Court found that the name of a peace officer who was subject to disciplinary action was protected from disclosure.”
The Vanguard, in the meantime, had made a simple request – a list of the full roster from June 2011 – with full first and last names.
Why would we ask for this? Primarily because it would give us a sense of whether Alexander Lee was a police officer with the department five months before the event. We know that names and positions are public records that we can obtain on employees. Five months prior to the event made it difficult for the university to exempt any record.
What we learn from this are two key pieces of information. First, that there was an Alexander Lee who worked for the department as a security guard in June 2011. There are no other employees with the last name of “Lee” at that time.
That led us to a critical question: is it possible that a security guard, basically a non-sworn employee, could become a full officer? We asked a former police chief at UC Davis if this was even possible and were told that, while it was not a typical means of hiring, it was not impossible or unprecedented.
But, of course, this was not enough to prove that Security Guard Alexander Lee was Officer A. Lee.
So we made one further inquiry – we asked for a list of officers, their date of hire, position titles, date of promotion.
We did not get everything we asked for. We were informed by Elizabeth Wisnia, Information Practices Analyst at the Office of the Campus Counsel, that “information regarding promotions and advancement of peace officer is protected from disclosure pursuant to Section 6254(k) of the Public Records Act (‘PRA’) (California Government Code Section 6250-6270) which does not require public release of ‘[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.’ Section 6254(k) encompasses Penal Code 832.7 which exempts police officer personnel records from disclosure and 832.8 which defines peace officer personnel records. PC832.8(d) includes ‘Employee advancement, appraisal or discipline’ in the definition of peace officer personnel records.”
Despite this, which would have shown exactly when Alexander Lee was promoted to police officer, we were able to learn that Alexander Lee is a police officer and he was originally hired on September 1, 2010.
What is interesting is that the university was going to give us the information we needed one way or another at this point. Because we asked for public records for more than just Officer Lee, the university had to comply with those requests. If they would have redacted the record of just Alexander Lee, we would have known for sure he was the one. If they would have tried to redact all records, that too would have tipped us off. And the release of the record becomes the final confirmation because now we know that Alexander Lee is in fact a police officer and not just a security guard.
To recap. We know that A. Lee was on the active duty roster for the week of November 14-18. We know from his picture he was a police officer. We confirmed it was Alexander Lee with the June 2011 duty roster which showed that Alexander Lee was a security guard. We also know that there was only one Officer Lee working at UCDPD at the time. And we know that Officer Lee is now a police officer. Put it all together and we have clear and convincing evidence that A. Lee is Officer Lee.
The date of hire also explains the payroll records. These records only go up to 2010. But they show Alexander P. Lee was first hired as a security guard in 2010. Prior to that, he appears to have been a Cal Aggie Host from 2006 to 2008.
What this tells us is that Officer Alexander Lee was basically a rookie officer in November 2011 having recently been promoted to officer from security guard sometime between June 2011 and November 2011. We don’t have the specific date because the university withheld that record, however we know it was so recent that even on November 29, the change was not reflected in the university’s payroll system.
We also know from the report that Officer O is Officer Alexander Lee. According to the task force report, Officer Alexander Lee “acting at Lieutenant Pike’s direction” pepper sprayed a “smaller portion” of the protesters who were in a seated line.
The Kroll report writes, “The actual deployment of pepper spray by Lieutenant Pike and by [Alexander Lee] at Pike’s direction was flawed and unnecessary.”
The report continues, “Lieutenant Pike appeared to have exhausted the contents of the canister and [Officer Alexander Lee] began to spray some of the students seated on the west portion of the group.”
According to Alexander Lee, “Lt. Pike issued an order to me to use police pepper spray on the crowd. I sprayed the crowd directly in front of the police skirmish line using a department issued pepper spray fogger Defense Tech MK-9.”
That is pretty much the extent of Officer Lee’s role here. He was a rookie officer taking direction from Lt. Pike, a longtime veteran Lieutenant. Given the circumstances, it is reasonable to understand that the officer was hardly in a position to question the orders and therefore it is difficult to find much cause for his termination.
At the same time, we believe this represents a great object lesson in the pursuit of public records. Sometimes the best approach is to put together a puzzle through small and defensible public records requests, rather than attacking the issue head on.
—David M. Greenwald reporting