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AG/DOJ Follies:
Reply to my DOJ PRAR Denial Letter

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By Jim March - jmarch@prodigy.net - June 20th, 2002

I'm going to assume you're read the first two parts of this series on CCW issues at the office of the California AG and DOJ Firearms Division.  Parts one and two are here if you need 'em.

On 6/19/02 at the meeting DOJ held to address these issues, I filed a request for CCW data with the state DOJ, asking for enough data to establish what was available

Requested item one was an explanation of what CCW data DOJ is sitting on.  This was answered well enough right then and there.

Request two was for a printout of the available CCW data for permits issued by San Francisco's police department.  I knew they had about a dozen, I'd seen the info from them, so I figured it'd be a good test.  Note that I left off asking for addresses, phone numbers, social security numbers or anything really personal - I neither need or want that for any permitholder or applicant.

Request three was for everything they had on State Senator Don Perata, barring the same "really personal stuff" limits as above.

This was to "pave the way" for a much bigger request for everything they had, statewide, and I made that clear.

I've scanned their response; below is my final demand back to them rebutting their denial letter and threatening a lawsuit in less than a week unless they respond.

Enjoy!  This is some FUNNY stuff :).

Dear Mr. Rossi,

You may consider this an “open letter” – it will be published on my website, and widely re-broadcast.

I am writing after receiving your letter of 7/10/02 informing me that Cal-DOJ will not be providing me with any Carry Concealed Weapons permit issuance data in your agency’s possession, even if the request is limited purely to the material declared public in CBS vs. Block 230 Cal.Rptr. 362.

This is my final request that you reconsider; I will file suit under the Public Records Act on 7/17/02 unless I hear from you first.

The only pieces in your CCW database I want are: name, date of issue, expiration date, issuing local agency, whether or not it’s an initial issued permit or a renewal, permitholder city of residence, county of residence, permit type, occupation and birth date.  Per a phone conversation with DOJ staffer Steve Buford, it would be easy for you to put all of your CCW data into an Excel or similar spreadsheet and delete all columns featuring truly private info such as social security number, street address, gun information or the like, none of which I asked for or desire.  It’s a total of one mouse click and one hit on the “delete” key to redact the columns containing sensitive material.

I realize your agency doesn’t have the “good cause details”.  No problem – you have everything else I need.  While “good cause” is of interest to me, the rest of the info is important too - including the “occupation” database field.  It’s useful in establishing if CCWs are restricted to Judges and reservists only as they are in some places, and effective in getting a handle on income-based discrimination.  The birth date should provide interesting demographic insights.

With the “CBS releasable data” that you have available, I can analyze demographics and racial issuance patterns at the city/county/state levels; I am particularly interested in totaling Hispanic percentages by last-name analysis, I believe the results will be quite interesting.  So will cross-referencing campaign contribution records.  Per Mr. Buford, there is no technical problem with providing me the “CBS released info” minus “good cause” in a spreadsheet format, or comma separated values text file or similar ASCII format.  I can read any of these; so long as it’s in a data file versus printout.

Allow me to try and re-cap your position as best I understand it:

According to Mr. Rieger, PC11105 and 11106 would make DOJ staff misdemeanor violators for releasing the data as described above.  I have examined all of PC11100 to 11112 covering DOJ records-keeping and I find no support whatsoever for your position, while Civil Code 1798.53 directly supports MINE.

11105 covers retention of criminal history records, and protects them from unauthorized review.  It specifies the circumstances under which the information can be handed out, and to whom.  It also protects the privacy of such records, under penalty of misdemeanor.  We agree completely.

11106’s opening paragraph states:

11106.  (a) In order to assist in the investigation of crime, the arrest and prosecution of criminals, and the recovery of lost, stolen, or found property, the Attorney General shall keep and properly file a complete record of all copies of fingerprints, copies of applications for licenses to carry firearms issued pursuant to Section 12050, information reported to the Department of Justice  pursuant to Section 12053, dealers' records of sales of firearms, reports provided pursuant to Section 12072 or 12078, forms provided pursuant to Section 12084, reports provided pursuant to Section 12071 that are not dealers' records of sales of firearms, and reports of stolen, lost, found, pledged, or pawned property in any city or county of this state, and shall, upon proper application therefor, furnish to the officers mentioned in Section 11105, hard copy printouts of those records as photographic, photostatic, and nonerasable optically stored reproductions.

But that’s simply not the case.  I’m sure State Senator Don Perata would be interested to learn that you now consider him fully equivalent to a criminal, since he has a CCW permit?  While I have lots of problems with the “Honorable” Don Perata, labeling him “criminal” is a bit much even for me.

In short, while the CCW records may be distributed via the same methods criminal records are distributed, they are NOT criminal records but something else entirely – and something that the California Supreme Court has declared public.  Put another way, Mr. Rieger has made the all-too-common mistake of reading permission for something (distribution of records to other gov't agents) as the sole possible option.  Example: I once helped a friend’s public defender get said friend out of felony charges of concealing a dagger.  He had run out of open-carry room at his belt (costume event), and hence had openly carried it elsewhere.  Towards the end of PC12020, there’s a clause specifying that a knife “openly suspended from the waist” is legal – but the DA tried to read that as the “sole possibility” when in fact, all that the law requires is “open carry”.  (Then again, trying to bust a guy over a knife when he was legally packing a full-blown sword at the waist was almost as pathetic as the California CCW system itself.)

Part of the fault here in 11106(a) is that the legislature lumped in mentions of both genuinely sensitive records (gun ownership data) with records definitely public (CCW stuff, with the possible exception of the “carried guns list” on CCW forms).  But while naming these as distributable, the statute doesn’t change the nature of the records themselves.

The rest of 11106 beyond paragraph “a” refers to the confidentiality and records requirement in gun ownership records.

Because your PC12050 records include the serial numbers of guns carried by permitholders, a case can be made that the gun serial number/model/etc. information in the CCW records is private, since it’s mostly a duplicate of records also found in 12071/12072/12078/12084 and private per the rest of PC11006.  That’s not a problem, as I neither need nor want CCW “gun info” and I can’t see how that info would help other investigators such as Chuck Michel.  In fact, if a list of all guns owned by permitholders ever did get published, it would form a “shopping list for criminals” – and I have to be cognizant of the fact that any records I can get, so can a newspaper, so even though I have no plans to publish such records it might still happen one day.

Finally, Mr. Rieger refers to Civil Code 1798.53 (bottom of page 2) and notes it’s dire language – while missing the most important three words: “…not otherwise public…”.

Is Mr. Rieger saying that the California Supreme Court did NOT label these records public?

Mr. Rossi, I have a suggestion: upgrade your legal counsel, or send what you have off to detox.

Now let’s look at the practical effects of your decision, shall we?

On 6/19/02, we established at a public meeting that the 1999 state-standard CCW application forms creation process managed by your agency had gone too far in ordering data withheld.  In addition to ordering ALL “good cause data” be withheld from public scrutiny, the 1999 process also withheld the “occupation” field, for no possible justification that I can see and blatantly contrary to CBS and the PRA.  We also know that a year and a half ago, DOJ staffers (I think Mr. Rieger again!?) told attorney Chuck Michel in writing that the DOJ had “regulatory authority” to do the forms as they did - but on 6/19/02 we confirmed that no proper regulatory authority was exercised because the public notification procedures weren’t followed, a regulation number was never assigned and the Office of Administrative Law was never involved.

And now, after your agency illegally told every single Police Chief and Sheriff to withhold that data from me and every other investigator back in ‘99, you’re personally telling me you won’t give it to me either, even though the California Supreme Court has declared that the information is needed to root out potential equal protection problems?

Sir, you were CCed in a message from the Director of the DOJ Criminal Division to me saying that he was in receipt of my complaint about CCW misconduct on the part of Sheriff Rupf of Contra Costa County, including an allegation of corruption.  You received from me a sheet containing particulars, in Email.  And you know that Rupf was involved in the 1999 CCW forms creation process from day one.  In short, you would have to be aware of at least suspicions floating around that there’s some real nasty games being played with CCW issuance on the part of local agencies which would indicate that getting truthful CCW issuance data out of them is a questionable proposition.  That in turn would add to the need for access to the state-level records, as a method of auditing completeness of their responses.  Without state records, how would I ever learn that a Sheriff withheld the name of his, fr’instance, perpetually DUI brother-in-law from the permitholder roster he gives me?

It gets worse.  The California First Amendment Coalition, a journalist/activist educational foundation, published a report in 2000 titled “State Of Denial: Roadblocks Of Democracy”.  It was compiled by filing PRARs of a nature that was clearly public, but stuff cops would be “touchy” about.  You can read the report here:

http://cfac.org/Audit%20Cover.html - or go here for the charts: http://cfac.org/Audit%20Content.html#anchor1028556 (scroll up a bit to see the data types requested)

I can summarize it pretty clearly: the initial denial rate for the info was 77% across all agencies – police agencies averaged 64% final denials, while Sheriffs were the worst with 80% initial AND FINAL denial rates.  And that’s with info declared public record by statute.  Making me chase after agencies with that sort of carefully documented track record violates my Eighth Amendment right to avoid cruel and unusual punishment, all the more valid because I haven’t done a stinkin’ thing here illegal!

I don’t have the resources to file a PRAR suit against 3/4ths or so of all the Sheriffs and PD Chiefs in the entire state. That’s just crazy.  But I damned well have the resources to sue YOU.

Your position on the release of the records leads to an absurd conclusion: that it’s perfectly OK for your agency to illegally block public access to records at the local agency level, lie to an attorney in writing about the use of regulatory authority when y’all didn’t even make a pretense of following the regulation rules, ignore the possibility of wrongdoing in PRAR response at the local agency level, and THEN block access to the state-level records, which are of a specific type and nature that have been described as public access by the California Supreme Court?

Do you care nothing about the reputation of your agency, or that of law enforcement as a whole?  Worse, do you have any concern about the citizenry’s respect for the rule of law?  My God, your agency is supposed to be trying to prevent illegality on the part of local agencies as part of DOJ’s charter, NOT HELPING ‘EM COVER IT UP.

The temptation to walk out the door today on my ordinary peaceable business armed was near overwhelming, as an act of protest against the insanity I’m dealing with in this area of law going all way up to Lockyer’s desk.  The only reason I didn’t and won’t is to preserve my standing to shove this garbage up somebody’s rear end sideways, in court, properly.

Nobody is going to “hold you accountable” on misdemeanor charges for releasing information to the public that the California Supreme Court has ruled is public record.

Any protests to the contrary are laughable, and raise questions about ulterior motives. Based on 1997 DOJ statistical data I was able to get ahold of cross-referenced against census data, one’s odds of having a CCW permit is five times higher if one lives in a county that has a black population below the state average of 6.7% as compared to counties at or above the average black demographics.  What other ugliness is buried in those records that hasn’t been spotted yet because even the NRA lacks the resources to pry data loose from every agency?

What are you hiding, Mr. Rossi?

I formally urge you to reconsider your decision.  Notify me of your decision to do so, or I file a PRAR suit in Sacramento County Superior Court on the morning of Wednesday, 7/17/02.

Jim March
Equal Rights for CCW Home Page
http://www.ninehundred.com/~equalccw