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Monday, March 14, 2011

George Gascón Opponent David Onek Vows 'Open' DA's Office

Posted By on Mon, Mar 14, 2011 at 4:07 PM

And if you file a public records request, I'll give you my hair care secrets
  • And if you file a public records request, I'll give you my hair care secrets

David Onek, who is running against District Attorney George Gascón this fall, says that if elected, he will do something the sitting DA won't: Share department records with the public.

He said this all while lambasting his rival, who has come under fire for trying to keep department records secret.

Gascón and his deputy, Paul Henderson,

have refused to release police-involved shooting records spanning 2000 to 2010. Additionally, Henderson stated on Feb. 28 that the San Francisco Sunshine Ordinance has "no jurisdiction" over the DA's investigative files -- even for long-ago closed cases.

But Onek, who Saturday hosted a campaign event featuring his father-in-law, 1988 Democratic Presidential Nominee Michael Dukakis, said the DA's records policy will change if he wins in November.

"A big part of working with the community is building trust. A few

things that happened when the DA was asked to release records on

officer-involved shootings did not create trust," Onek said.

In a follow-up interview Monday, Onek added he would reverse a long-standing District Attorney's office policy of disregarding the San Francisco Sunshine Ordinance, which requires local officials to respond forthrightly to public records requests.

"The default is always to be as transparent as you possibly can be, because that's how you build trust with the community, and trust with the community is what makes us safer," said Onek, a lecturer at UC Berkeley's Boalt Hall.

According to the San Francisco Sunshine Ordinance:

The District Attorney, Chief of Police, and

Sheriff are encouraged to cooperate with the press and other members of

the public in allowing access to local records pertaining to

investigations, arrests, and other law enforcement activity...

...Records pertaining to any investigation,

arrest or other law enforcement activity shall be disclosed to the

public once the District Attorney or court determines that a prosecution

will not be sought against the subject involved, or once the statute of

limitations for filing charges has expired, whichever occurs first

However, in a Feb. 28 letter to the Sunshine Ordinance Task Force, Henderson stated that the local ordinance governing public records access did not apply to the the DA. According to Henderson:

The district attorney's position is grounded in the California Public Records Act and

supported by Rivero v. Superior Court, (1997) 54 Cal. App. 4th 1048, in which the court

explicitly held that neither the California Public Records nor the San Francisco Sunshine

Ordinance compels disclosure of district attorney investigation files. In reaching this conclusion,

the court found that investigation and prosecution of state criminal laws are statewide concerns,

not municipal affairs; accordingly, conflicting local ordinances -- and specifically the Sunshine

Ordinance -- must yield to state law.

Henderson was responding to a 2010 complaint that your correspondent filed after the DA's office repeatedly refused to release long-closed investigative files in its possession.

The Rivero v. Superior Court decision -- which California public-access advocates claim is deeply flawed -- says that when it comes to closed investigative files, local district attorneys can decide on their own whether to obey or defy local public records laws.

According to the California Court of Appeals decision, county district attorney are largely unfettered by local public records laws because, for the most part, they purportedly aren't really local officials. Most of the suspected criminals district attorneys prosecute have violated state laws prohibiting crimes such as murder, theft, rape. So they're actually acting as California state officials, and thus aren't subject to local public records laws such as the San Francisco Sunshine Ordinance.

However, at a March 8 hearing, a Sunshine Ordinance Task Force committee deemed Henderson's logic faulty, and determined that the task force had jurisdiction over a complaint regarding the DA's public records policy. The entire task force will consider it again on March 22.

Meanwhile, Onek stands by his pledge to reverse Gascón's current policy of flouting local public records laws.

"What the Rivero decision seems to say is that the DA is not compelled to follow local public records laws," said Onek. "That's irrelevant, because I've said I will comply with the San Francisco Sunshine Ordinance."

click to enlarge It looks something like this.
  • It looks something like this.
Full Disclosure: In 1992, Onek's father in law, Dukakis, loaned your correspondent a blue, red, and white diagonal-check-pattern silk tie.

When presented with the tie at Saturday's campaign event, Dukakis graciously said he didn't need it back.

"Keep the tie," he said.

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Matt Smith


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