Commentary: Judge’s Ruling Reveals Info About Kroll Report

University of California’s General Counsel issued a quick response to the tentative ruling that was made public late on Thursday.

Charles Robinson, being cautious, said, “We are encouraged by this positive development. Because it’s a tentative ruling, it would be premature to comment further until the hearing scheduled for tomorrow concludes.”

What becomes very clear is that the court has sided with the General Counsel for the University of California, as well as with attorneys for the ACLU, on both the content of the report not resulting from the Internal Affairs process, and that because the report was based largely on already available public accounts, there can be no expectation of privacy and the records cannot be deemed personnel records or deemed confidential under California law.

As Judge Evelio Grillo duly notes, “Under the Officer’s proposed interpretation, if a university or city investigating police conduct or practices generally (and not the actions of individual officers) compiles public information regarding that conduct or particular practice, then section 832.7 could cloak any resulting report even though the underlying information is freely available to the public.  It cannot be the law that a public entity cannot collect, compile, and distribute public information about its police department without running afoul of section 832.7.”

Indeed, as the court also notes, “The Incident has already received substantial publicity and that the Report is replete with footnotes that reference citations to the internet, newspapers, and other forms of media.  Starting from a situation where a photo of the Incident has already become an internet meme, there is little potential for incremental harm to the Petitioners from the release of a report that consists largely of information and photographs that have already gone viral.”

In our view, the only question was whether the Kroll/Reynoso report utilized internal personnel records – Judge Grillo made it very clear that they had not.

Quoting from the Kroll report itself, the court states, “[T]he Kroll Team has had virtually no contact with the Internal Affairs (IA) investigative team.  The IA investigative team has not provided or shared any information with the Kroll team, including a witness list.”

Additionally, “the Kroll investigation obtained documents from UC Davis, but the Kroll report states that there were ‘records withheld [by UC Davis and/or UCDPD] on the basis of peace officer personnel record provisions.’ “

More importantly, “UC Davis has not shared any documents generated in the IA process with Kroll or with the Task Force.”

It is not surprising that William Bratton and his team would be cognizant enough of these concerns to avoid this pitfall, and having avoided it, there does not seem good cause for a court to withhold the findings from the public.

The Kroll report states, “As personnel investigations are deemed confidential, under California law, this report does not include information obtained from any interview of any officer whose use of force is being reviewed or who has been deemed a potential subject of discipline; only witness officers have been interviewed.”

Out of an abundance of caution, Judge Grillo has stayed the imposition of the order for sufficient time to allow for appellate review, but we do not believe this is a close call.

Aside from almost complete agreement with arguments put up by both the ACLU and UC General Counsel, the notable aspect of the Judge’s ruling is how much we learn about the content about both Kroll and Reynoso’s report.

The court, in its listing of facts, writes, “The Kroll report is extensive and detailed.  The report collects and contains facts regarding all aspects of the Incident, from how the administration’s decision-making process worked, to how the administration communicated instructions to the UCDPD, to the content of those instructions, to how the UCDPD planned for clearing the Quad, to how the UCDPD supervised officers at the Quad, to the actions of individual officers at the Quad.”

“The Kroll report does not recommend any discipline for any police officer,” the court says.

However, the Kroll report does make “recommendations regarding decision-making by the UC Davis administration, the organization of the systemwide UC police force, and proposed training for UC police officers.”

The court goes on to say: “The Reynoso report, which attaches the Kroll report, reviews the factual summary in the Kroll report, makes conclusions regarding responsibility for the Incident, and makes policy recommendations.”

Most revealing, perhaps, is that the report “assigns responsibility to specific individuals, including police officers, for various specific decisions.”

While we may not know what responsibility is assigned for specific decisions, that statement is highly revealing in that the report finds fault in official public actions.

We also know from the segment on the Kroll report that we have a good idea how the administration’s decision-making process worked, how and what was communicated from the administration to UCD Police.

If anything, that is the most critical question of all – who told whom to do what.  To a large degree, we were not going to learn a whole lot new about the actions of Lt. Pike.  That incident is available in public and has been scrutinized ad nauseum.

What we need to know, however, is the involvement of upper administration.  Vice Chancellor John Meyer is the direct superior to Police Chief Annette Spicuzza, and yet we know almost nothing of his role in this incident.  His name has rather conveniently remained outside of the public discussion.

Moreover, we know that in the immediate aftermath of the event, Chancellor Linda Katehi made statements implying justification for the pepper spraying.  Those statements changed to regret, apology, and eventually a tactic where she blamed the incident itself on the acts of the officers, while at the same time apologizing.

We now know that in the immediate aftermath of the incident, the university contracted with a public relations firm for over $100,000 to help with their clearly faltering crisis management communications.

If anything, this report should be able to show us, through email communications received by Kroll and analyzed by Cruz Reynoso’s task force, exactly what transpired and what the Chancellor or Vice Chancellor did or did not communicate to the police, as to the authorization of use of force in clearing the quad.

The efforts by the attorney for Lt. John Pike are telling.  They were a clear reach.

As the Sacramento Bee argued in their editorial last week, “The state’s Public Safety Officers Procedural Bill of Rights Act, which deals with personnel investigations of police officers, should not stop this report. The Reynoso Task Force report is separate from UC Davis’ own internal affairs investigation into complaints of officer misconduct, which would be the basis for any personnel actions concerning the accused officers.”

They note that Justice Reynoso has written that he is “undeterred in my commitment to release the complete and unredacted work of the Task Force, a view shared by President Yudof.”

“That is the right stance,” the Bee opines.

“In the Reynoso Task Force report, the public deserves to know the full who, what, where, when and why of events – not anonymous ‘Officer A’ or ‘Action X’ redactions,” the Bee writes.  “The public should be as troubled as Reynoso and Yudof by last-minute shenanigans to stop or get amendments to blunt the edges and value of the Reynoso Task Force report.”

The Vanguard agrees.  The effort to stop publication here is clear, blatant and transparent.  Fortunately, as regressive as the California law is on this matter, even California law does not appear to be on Lt. Pike’s side.

It is ironic, but the legal actions by Lt. Pike help not the officer himself and his actions, but the administration of the University of California.

President Mark Yudof was able to make a self-serving statement of righteous indignation.

“I am disappointed,” President Yudof said, “and I have asked the UC General Counsel’s office to do everything in its power in court to turn back this attempt to stifle these reports.”

“The work of the Reynoso Task Force, supported by outside investigators from the Kroll group, is a fundamental stepping stone needed to carry the UC Davis campus past the events of Friday, Nov. 18,” he added.  “The entire UC Davis community deserves a fully transparent and unexpurgated accounting of the incidents in question. Though I have not seen the reports, I am told the task force and its supporting investigators have provided just such an accounting.”

Likewise, Chancellor Katehi got to take the moral high ground.

“I am tremendously disappointed by this delay and know that many of you will be as well. We requested this inquiry to learn precisely what happened last November 18, utilize that knowledge to ensure that our campus is a safe, tolerant and inclusive community, and help us move forward together,” she said in a statement Monday evening.

She added, “Hopefully, this delay will be brief and we will receive the task force’s findings soon. Meanwhile, work continues as we near completion of the campus’s own internal affairs investigation into complaints of officer misconduct, which would be the basis for any personnel actions concerning the accused officers.”

Now, no matter what the report reveals, she can claim that she attempted to hide nothing and merely wanted the truth to come out.

Will there be the magical email that authorizes the use of force?  Short of that, it is hard to see how the chancellor would meet her demise.

That is the question that remains, and the question that ironically the police and their union have prevented from coming forward.  The public will get that answer sooner than later, hopefully, so we can all move on.

—David M. Greenwald reporting