Vanguard Commentary: University, Newspaper, Playing Games With Our Right To Know

Pepper-sprayFor the second time in a month, the Sacramento Bee beat everyone to the punch, publishing what seemed to be internal emails.  This time highlights, among other things, documents the university has attempted to keep under wraps, even from Kroll, about the legal authority under which the university acted.

This is not a small matter, for there are questions about the legal authority under which the university acted.  Questions that now only grow stronger.

As the Kroll investigators note, “Without the legal authority to demand that the tents be removed, the police lose the legal authority for much of what subsequently transpired on November 18, including the issuance of an order to disperse and the declaration of an unlawful assembly.”

We now know, based on these records, that the Campus Counsel sought out the advice of Yolo County Chief Deputy DA Jonathan Raven.  We also know that he agreed with the campus’ legal assessment, though he ironically noted he was not impressed with the crime.

Unfortunately, like the internal report below, there are not documents that other members of the media or the public can scrutinize.

When the Vanguard requested the same emails, Elizabeth Wisnia, an Information Practices Analyst at the Campus Counsel Office, told the Vanguard, “With respect to your request for the emails referenced in the Sacramento Bee news story, privileged emails were not obtained from our office or any other university source to our knowledge.”

“The Sacramento Bee has made requests to the University for records pursuant to the Public Records Act, but did not receive privileged emails in response,” Ms. Wisnia continues.  “If the emails had been requested, we would have declined to provide them pursuant to California Public Records Act (‘PRA’) section 6254(k).”

She adds, “The emails referenced in the Bee article were subject to the legal privileges for attorney-client communication and attorney-work product.  The university declines to waive these privileges with respect to these documents.”

This communication from the university means that the Sacramento Bee was likely leaked these emails.  When they received the internal report, it seemed likely that Lt. Pike himself was the source.  Now it is less clear who has the advantage of leaking this documentation or the legal authority.

The Vanguard was able to confirm that Lt. Pike had a right to receive a copy of the internal report and was at liberty to disclose it to whomever.  In this case, the right would not be nearly as clear.

More importantly, however, for the sake of public transparency, the Sacramento Bee and not the public entity is now the gatekeeper of information that likely should have been disclosed by the university long ago.

Best practices suggests that the Sacramento Bee make the information available to the public to allow the public the right to scrutinize.  Unlike many publications, however, the Bee has chosen not to do so and has only released selected segments.

That is most unfortunate, because it means that they and only they can determine what the public should know.  That goes against the very notions of open government and transparency we have fought for.

More importantly, it seems that the Bee may not fully understand some of the information that they have.  For instance, the comment by Jonathan Raven had a huge meaning above and beyond this immediate situation, given the practices of his department – practices at times scrutinized by the Bee itself.

However, they buried lead with regard to this issue and that leads us to wonder on how many other issues that critical information may be contained in these documents and emails that the Bee, through some sort of narrow tunnel vision, simply has failed to identify.

Just as the Bee has the right to withhold this information – so too does the university.  But, at this point, to what end?  What are they trying to hide by hiding behind the attorney-client privilege at this point?  The litigation with the protesters has been settled, the Kroll report is done.

We believe that the public has a firm right to know exactly what went into the decision to clear the Quad that day.  The legal authority under which they operated is critical to determine the propriety of their actions.

Without legal authority, the police on the UC Davis Quad acted not as representatives of government with the authority to disperse a crowd and arrest protesters, but as thugs in uniform, assaulting the students with pepper spray that they apparently were not authorized to used, trained to operate, or used properly.

And that leads us to the last nagging piece of information that has not yet come out, the decision by the DA’s office as to whether to charge Lt. Pike and perhaps Officer Alexander Lee and Lt. Barry Swartwood with criminal violations.

It is September, it is now exactly 10 months since the November 18 incident and the DA has not made its decision on whether to charge?  Our inclination from the start has been to believe that the DA will not bring charges – but if that were a slam dunk, why no decision?  All the reports have long since been finalized, what is the DA waiting on?

And will the feds enter into the picture and look into charges of denial of civil rights under the color of authority?

In the end, the public should have the right to know all of this.  Unfortunately, everyone involved seems to be on the side of withholding information and protecting their turf.  And that’s most unfortunate.

UC Davis could end this today by waiving their attorney-client privilege and the Sacramento Bee could end this today by posting their documents and allowing the public full scrutiny.  The question we should all be asking is, why won’t they?

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Alan Miller

    “If they don’t get a lot of information out of it, I’m going to be critical of them settling.”

    Information . . . . that’s part of it. UCD broke its own policies. Even if it had not, the clearing of the Quad was piss poor policy in play, thanks to those wacky leaders who continue to draw salary. Policy means nothing if interpreted by persons lacking wisdom, patience and integrity. “I’m going to be critical” if the settlement does not include just repercussions to the offending members of the “leadership team”.

  2. David M. Greenwald

    Alan: I’m simplify my point. If this is merely a financial settlement, then I’ll be disappointed because this was a chance to hold officials feet to the fire. I have faith that it won’t be just a financial settlement because everyone involved had an interest. I don’t think the full truth has come out and I’m concerned that the UCD administration that promised to give Kroll everything decided to withhold attorney-client privileges.

  3. civil discourse

    It seems to me that the legality of the police action really doesn’t change whether or not the university or the Bee publishes their decision making process.

    Yes, it would be nice to know “what were they thinking!?!” but legal advice is just that, advice. It seems pretty damning if they acted on shaky legal ground, but we already know they did.

  4. Frankly

    This just in…

    “No Criminal Charges Will Be Filed Against UC Davis Police For Pepper Spray Incident”

    I think this was the correct outcome.

    Now I wonder if Lt. Pike will sue the school?

  5. eagle eye

    The DA depends on law enforcement to testify to win cases so the DA is unlikely to turn against anyone in law enforcement.

    I wonder what the leaker received for leaking docs to the Bee, and no other news outlet.

  6. David M. Greenwald

    The letter only asks that the tents be removed by 3 pm.

    The over problem that you have is the problem that 602 requires that there was overnight campaign but if you are arresting people in the middle of the day, it’s not clear that is actually probably cause that they camped there.

  7. Brian Riley

    @David M. Greenwald:

    Right, David. And also, as you know, this is what the Reynoso Report states on page 9:

    “When explaining their decisions on Nov. 17 and 18, UC Davis administrators repeatedly referenced this concern about individuals not affiliated with the university at Occupy movement protests and encampments on campus, and the security risks created by their presence. Indeed, in Chancellor Katehi’s letter distributed to campus protesters on Nov. 18, the day of the pepper spray incident, the Chancellor wrote “We are aware that many of those involved in the recent demonstrations on campus are not members of the UC Davis community. This requires us to be even more vigilant about the safety of our students, faculty and staff.” As our report will indicate these concerns were not supported by any evidence obtained by Kroll.”

  8. David M. Greenwald

    Correct. The legal order came from Pike. Now whether that was a lawful order, I’m not convinced of at this point which why the decision to clear the tents during the day is in my mind problematic.

  9. Brian Riley

    Right, David. I, along with others, was convinced that we had every right to be there, and that Pike had no right at all to order us to leave. That being the case, then the arrests actually were unlawful.

  10. Brian Riley

    And if the arrests were unlawful, then it was not we protesters who were being riotous, but actually it was Pike, et alia, who who were being riotous. I tried to talk to Pike about it sometime before it escalated to reason things out, but he shooed me away.

  11. Brian Riley

    As you mentioned in a previous editorial, David, there was severe corruption within the UC Davis police department. Pike was part of that, and he is culpable for sure. So actually the DA is just playing “CYA” here and trying to help Pike and the other officers out, and continue the cover up of the longstanding corruption.

    If we’re going to look at the totality of the circumstances, including the history of the UC Davis police department, then an impartial analysis should rightly conclude (and I’m not using hyperbole here) that that it was *Pike* who was acting as an anarchist at the scene, i.e., deliberately choosing to go outside the law (for whatever reason), and now we have members of the DA office acting anarchistically as well.

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