By Jaden Jarmel-Schneider
Sacramento County acted on a policy of obfuscation and opacity when it came to releasing information about COVID-19 in the county’s two jails, defying a basic tenet of the democratic social contract and a guiding principle of California’s Public Records Act.
While California’s prisons, which incarcerate inmates who have been convicted of crimes, released daily reports of COVID-19 cases and testing, many of California’s county jails, which hold defendants awaiting trial, have not.
After a wave of protests demanding Sacramento release information about cases in the county jails, the Vanguard began an investigation into COVID-19 data and testing protocols across county jails in California.
While data trickled in from San Francisco, then Yolo, Solano, and Alameda, which published their data on their public health department website, Sacramento was adamant: It would remain a black box of sorts, fighting to keep data disclosed with the same vigor that one might expect a county to combat a pandemic.
I began in late June by contacting various departments in the administrative offices of the Sheriff’s Office—which has jurisdiction over the County Jail—and the Probation Office—which oversees the Youth Detention Center.
Phone calls and emails to the Media Relations Officer, Communications Bureau, Inmate & Court Information line, Chief Deputy, and Sergeant Tess Deterding yielded no response. At the Probation Office, calls to the supervising officer and various other administrative positions were not answered. After a week of calls, the health supervisor at the Youth Detention Center was the first to answer the phone. He curtly told me that he was not allowed to share any information, not even his name.
After a couple of weeks of failed attempts to obtain information about the number of incarcerated people who tested positive under the county’s supervision, we came across a series of articles which confirmed our suspicions that Sacramento’s reluctance to publicize information wasn’t new. The articles, published by the Sacramento Bee, detailed the county’s longstanding history of obstructive transparency and even raised concerns about the county falsifying data.
In late June, after exhausting every email address and phone number in the Office’s directories, the Vanguard filed two Public Records Requests, one to the Sheriff’s Office and one to the Probation Office. In the requests, we asked for all available data on confirmed cases, active cases in custody, active cases released from custody, resolved cases, deaths, and cumulative tests—the same data the California Department of Corrections and Rehabilitation (CDCR) was releasing voluntarily about the 35 prisons under their jurisdiction.
These requests exist as a manifestation of the California Public Records Act which was codified into the California Government code under Gov. Ronald Reagan in 1968. The Act “finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” Although the law was written to open the government’s doors to the public, Sacramento’s de facto law uses bureaucratic loopholes to do exactly the opposite.
Within a day of filing the initial request, the Probation Office referred the request to the Sheriff’s Office before automatically closing it, informing us that they had no relevant records (we would learn this was false). The online portal, through which both offices require all public requests to be filed, has no option to reopen a closed request. Throughout my investigation, I learned that this this automatic closure—with no means of reopening—was the Probation Office’s convention.
As June neared its end, the only channel which had yielded some progress was a back-and-forth with an administrative officer in the Probation Office who was in her first week on the job. After a bit of convincing, she reopened our request. I mentioned to her I couldn’t find the contact information for the person listed as the “point of contact” on the public records portal. She told me that she didn’t know that person, but it was a name that automatically appeared on all requests.
The next day, July 8th, the case was reopened. Attached to it was the first of two letters from the Probation Office. In the letter, Assistant Chief Probation Officer, Marlon Yarber, informed me that, according to a subsection of the California Public Records Act, I would have to pay for the records to be produced because the County would have to compile electronic data, which had costs attached to it.
Yarber told me that I should contact him if I wished to continue with this process. At the end of the letter, he wrote that the county considered this to be a complete response and closed the request. He left no means of contacting him.
I found, upon reading the cited section that the letter from the Probation Office both disingenuously represented the statute and was acting firmly against the spirit of the Public Records Act itself.
The Public Records Act was passed to provide “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state;” Sacramento County seemed determined to do exactly the opposite.
While it was true that I would have to pay to extract the records in the event that these records were only kept digitally in a format that required specialized software to extract, if it existed in another form—an already created electronic document or a physical copy—they would be bound by the Act to hand over a copy.
In the letter, Yarber explained that I would have to bear the cost of constructing the record because either the County would have to produce a record outside of its regularly schedule production of that record or the County would have to compile, extract, or program data to compile a record that did not already exist at present.
While the exact reason that I would have to bear the cost remained unclear, it seemed, based on his letter, that at the very least, one of the two options had to be true: that such a record did exist or the data required to produce existed electronically.
I later learned that this wasn’t the case.
The second letter came five days later, explaining that none of the requested data were being held electronically so the County would have to manually review physical documents to create a report. This, according to the letter, was not required by the Public Records Act and was outlined in the 2001 Los Angeles County appellate decision: Haynie v. Superior Court.
This response was suspect for a couple of reasons. First, it directly contradicted the previous response which informed me that I would have to cover the cost of producing the record precisely because the data was being held electronically. Second, the sub-sections that Yarber cited had nothing to do with the conditions that necessitate a county to produce records upon request. After this, the Probation Office stopped responding to emails.
Later that week, I received a phone call on my cell phone from a blocked number. The caller identified himself as Rick Heyer, an attorney for Sacramento County.
Heyer explained that there had been a bit of confusion, but that the department, in actuality, was under no obligation to release this information. He told me that the Probation Office didn’t keep electronic records, just physical ones, so they would have to sort through them and put time and money into compiling numbers. He said that according to the Hayne decision, the office had no legal duty to do so.
It seemed unlikely and irresponsible if true that the Youth Detention Center was not already compiling records of COVID-19 data in physical or electronic records, but Heyer insisted that to the best of his knowledge, they weren’t.
The decision, Haynie vs. Superior Court, was only tangentially related to the county’s justification for withholding documents. In this case, the court decided that an institution was not required to create an inventory of electronic documents that were responsive to the request, but did maintain the importance of “opening for inspection the records identified as coming within the scope of the request or providing copies thereof at the expense of the person requesting copies.”
The similarities between Haynie and this situation don’t seem to extend much further than the word “compile.” We were neither seeking documents that are part of an ongoing investigation, nor are we seeking a list of descriptions of potentially relevant documents. We were seeking the documents themselves, documents that, according to Heyer, didn’t exist. This, like involving the attorney, was one of the many tactics the county employed to delay, to intimidate, to obscure.
At this point, there seemed to be two possibilities. First, the documents containing numbers about the requested data points did exist in physical or electronic form, in which case, the County would be obligated to produce copies, even if we had to cover the undoubtedly minimal cost of reproduction. The second was that the Probation Office wasn’t keeping track of their testing in any uniformed way, which if true, seemed grossly irresponsible.
The next day, Heyer sent an eight-page document detailing the Youth Detention Center’s protocol for testing residents. The first page, under a bolded header titled “Communication,” admonishes workers to “not share COVID information and do not provide office/cell phone numbers to other agencies.” This confirmed our suspicions. At very best, this was a case of mismanaged bureaucracy, more likely, it was a case of intentional obfuscation.
More importantly, I learned from the document that all residents who entered the facility were screened beginning in March; results were kept in an electronic medical record. Heyer had either been dishonest or misinformed: there was electronic data that could be compiled and released.
Two weeks later, after sending an email to Heyer asking about the discrepancy in his justification for withholding information, a representative from the Sacramento Probation Office sent a link of a COVID-19 dashboard that the California Board of State and Community Corrections (BSCC), an advisory committee that oversees the adult and juvenile detention facilities, published.
Over 100 facilities across the state reported numbers. The Sacramento Youth Detention Center had no data to report.
Meanwhile, as the Probation Office continued to stall, our records request with the Sheriff’s Department had received no response beyond an automated confirmation. Pursuant to the Public Records Act, the department had ten days to respond to records requests. The ten days came and went without development.
A gentle nudge, an email to a newly created Sacramento Covid-19 media office, and a week later, the two offices sent emails less than an hour apart from one another, reporting numbers for the same facility that did not line up.
According to the Sheriff’s Office, 1,927 inmates in the county jail had been tested by June 30th. According to the media office, 1,927 inmates had been tested by July 15th, two weeks later. During those two weeks, as that number remained unchanging, the offices reported that the number of confirmed cases increased from 16 to 18. With no additional tests administered, this was impossible.
I emailed the media team asking for a weekly report to clarify the progression. The representative responded that that would not be possible; even sending this one data point was “pushing it.”
Several possibilities arise with a seemingly inexplicable data progression like this. Perhaps, there was miscommunication across departments. Or maybe it was simply the case of misdating the reported data. It even seemed initially possible that for reasons that defy public health convention, the county jail halted testing for the two weeks in early July.
But after an investigation that spanned several weeks and numerous offices in the Sacramento County government, it seemed more likely than not that the byzantine public records process whose bureaucracy was intended to hold information hostage had erred in its own web of inaccuracies.
No matter the explanation, this inconsistency indicated Sacramento County’s flawed philosophy regarding public information, especially as COVID-19, whose enormity can be captured only as well as the numbers that describe it, ravaged the state to which it is the capital.
To date, of the sixty-plus requested data points—all of which the county is legally obligated to turn over upon official request—the Vanguard has obtained three.
The California Public Records Act was created to make available this type of data, data that impacts the public and indicates potential governmental oversight. As the situation worsens in San Quentin and other penitentiaries across the state and country, withholding data about COVID-19 in the jails is an unconscionable violation of the law.
This is not to say that some syndicate has been blocking my efforts at every step of this investigation, but it is to say that there is at very least a bureaucracy in the Sacramento County offices that makes accessing data that should be public difficult, and more likely than not a culture of information opacity that denies the public the right to that data that was enshrined into the Government Code more than 50 years ago.
Although the battle with Sacramento County’s Probation and Sheriff’s office might seem insignificant and provincial, it serves as an important case study of the more discrete ways government institutions can obstruct transparency. Transparency in government is not simply about laws that require governments to disclose certain information upon request, it is about creating clear legislation and a defined culture that more evenly distributes the weight of information power.
Frustrating as the records request process was, it did not, in many ways, violate the law. It was a microcosm of the myriad ways government offices can evade the law without breaking it, one of the most powerful being the use of bureaucratic lag—deliberate phone tag, involvement of lawyers, etc.—to stall the release of information, often with the knowledge that the requester, whose advocacy stamina is finite, will tire and give up.
Information is a powerful tool, made even more powerful in an era of mass sequestration. People have a legal and moral right to information that affects their lives, and the lives of their loved ones. Even more, governments have a legal and moral responsibility to provide it. The law that theoretically requires this informational dynamic has proven to be ineffective because it does little to incentivize governments, like Sacramento County, from participating in the culture which is required for the law to be successful.
When the Sacramento Probation Office published their data, it was clear that they had been tracking it all along, even during the periods of time in which their attorney had insisted they had not. When the Sheriff’s Office released the two data points to us, it was clear that they had information responsive to our requests even when they had insisted for a half a month that they did not. This kind of bureaucratic duplicity is unacceptable, especially from the city in which the Public Records Act was passed.