COUNTY COUNSEL Pomme ‘COUNTY OF SAN LUIS OBISPO. een May 2, 2018 "tao ‘SENT VIA ELECTRONIC TRANSMISSION Matt Fountain ‘Staff Writer, San Luis Obispo Tribune 3825 S, Higuera Street San Luis Obispo, CA 93401 Email: mfountain@thetribunenews.com J. Tavener Holland 1023 Nipomo St, Ste $0, San Luis Obispo, CA 93401 Email: fave@|THollandlaw.com Re: Records of Communication Mr. Holland and Mr, Fountain: This letter responds tothe emails you sentin reply to our response to Mr Hollana’s Public Records Act (PRA) Request of Apri 5, 2018. Mr. Hollands statement in his reply, which was received at 6:07 pum. Friday evening, on Apri 27,2018 indicating that he takes the County response “as definitive thatthe County cannot produce a record of communication tothe Sheriff on Sunday, January 2, 2017" is inaccurate, What is accurate i thatthe County has withheld certain records, including communications, on the basis of one or more exemptions or prileges that protect the information from public disclosure. These exemptions and prileges have been set forth inthe numerous responses we have sent to your various PRA requests. In Mr. Fountain’s email reply, received by this office at 7:23 p.m. Friday evening April 27,2018, he indicates that: [We were told {the Sherif] was notified by phone, in which case woulda’ that be reflected even ifthe communication is withhelo™ “The answer is "yes" it would be and is reflected in cell phone records that were withheld from disclosure in September 2017, after the records were reviewed by County Counsel in response to Mr. Fountain’s PRA request of August 23, 2017 (modified by Mr. Fountain on August 29, 2017) As noted in the newspaper article, published intheMatt Fountain J. Tavener Holland Re: Records of Communication May 2, 2018 Telegram Tribune on May 2, 2018, the request for records of communications were “partially denied due to the burdensome scope of the request and because some records contained security and other confidential information.” Since January 2017, the County has responded to more than 50 separate PRA requests related to Andrew Holland's death. In each instance, we have endeavored to follow the County's routine practice and protocol when responding to PRA requests, ‘thereby maintaining consistent application with respect to the manner in which we handle all PRA requests, especially those involving custody and law enforcement records that implicate the safety and security ofthe jail n this regard, as @ practice, we do not pick and choose which records to release and which records we will withhold where a record is protected by a privilege, or exempt from disclosure by Government Code section 6254, 6255, or other statutory and common law provisions, because to do ‘so would leave the County subject to claims of arbitrariness or waiver. Mr. Fountain’ request in August 2017 was indeed overly broed, but in eddition to that, the majority of responsive records we reviewed were deemed to be protected by Government Code section 6254, subdivision (9, section 6254, subdivision (k), section 66255, and the deliberative process privilege. In early September 2017, in response to Mr. Fountain’s request we did in fact receive from the Sheriff phone records consisting of a cell phone billing statement covering January 20, 2017 through January 23, 2017, and also a screen shot of the text message Sheriff Parkinson received at 5:21 p.m. on January 22, 2017, alerting the Sheriff that medics were in route to the jail. At the time, ‘no one was calling into question what and when the Sheriff knew about the events surrounding Andrew's death, Had this been the case, it would have factored into our consideration as to whether to release information otherwise protected from disclosure by the statutory and common law provisions noted above. Instead, we ‘deemed the telephone records, including the text message, to be protected by Government Code sections 6254, subdivision (?) and (k), section 6255, Evidence Code section 1040, and the deliberative process privilege, citing to the case Rogers v. Superior Court (1993) 19 CalApp.ath 469, 475. Unfortunately, due to the voluminous amount of PRA requests we have recelved and the plethora of records this office has reviewed surrounding Andrews death, County Counsel staff did not recall the cell phone records that the Sheriff had eaeMatt Fountain J. Tavener Holland Re: Records of Communication May 2, 2018, transmitted in or around August 2017 in responding to Mr. Holland's PRA requests in December 2017, and more recently last week. After forwarding your email replies to the Sheriff on April 30, 2018, he Immediately questioned his staff about the telephone records he had previously directed be forwarded to this office in response to Mf. Fountain’s August 23, 2017, PRA request. After following up with this office on Tuesday, May 1, 2018, we located the cell phone records he had previously forwarded. We regret that this oversight has now cast additional doubt on the Sheriff's previous statements regarding when he learned of the events surrounding Andrew's death, In ight of the assertions and suspicions that have been raised, and in consultation with the Sherif, the Sheriff has elected to waive the privileges previously asserted and is releasing the cell phone records, which have been sent with ths letter via electronic transmission. In addition, we are providing two other records that identity where the Sheriff was during the weekend that commenced January 20, 2017. In this regard, Mr. Holland has made prior claims that the Sheriff received a call about ‘Andrew being placed in the restraint chair on Friday, January 20, 2017, while he was attending a rehearsal for a musical charity benefit for the Women’s Shelter in San Luis Obispo. The records transmitted with ths letter establish that the rehearsal for the ‘musical benefit did not take place until the evening of January 23, 2017. ‘The attached cell phone records show that the Sherif first received a text ‘message at 5:21 p.m. on Sunday, January 22, 2017, while he was attending an event sponsored by the Women's Shelter Program. The records further establish a series of phone calls that immediately commenced thereafter at 5:22 p.m. between the Sheriff, dispatch, and custody staff. Although the cell phone billing statement does not identify \who the calls were received from or whom the Sheriff called, we have provided a separate record identifying those contacts. In accordance with Rogers v. Superior Court, supra, and the privacy interests of individuals whose communications are reflected in, the cell phone records, we have redacted portions of the phone numbers reflected in, the cell phone billing statement, ‘The Sheriff and the County continue to acknowledge that Andrews death was a tragedy. The Sheriff and the County have made several changes to its protocols, policies, and operations at the jail and the Public Health and Behavioral Health Departments to ensure that something lke this will never happen again. Despite these‘Matt Fountain J: Tavener Holland Re: Records of Communication May 2, 2018 efforts, and a substantial settlement and release of al claims by Andrew's parent, unsubstantiated accusations about the events surrounding Andrew's death continue to bbe made. In deciding to waive the privileges and exemptions that would otherwise protect the cell phone records from disclosure, the Sheriff and this office have weighed the Sheriffs interest in dispelling these unsubstantiated claims, as well as the public's interest in receiving accurate and factual information regarding the claims that have been made about the Sherif, against the County's interest in protecting the records pursuant to the privileges and exemptions cited herein. We have concluded that the former interests compel disclosure of the records we have provided. Very truly yours, RITAL. NEAL County Counsel RLNick cc: Victoria Oeetfe, Custodian of Records, Sheriff's Office Kathleen Choal, KSBY {kchoal_ksby.com] Kendra Martinez, KSBY tkmartinez@ksby.com] Carina Corral, KSBY [ccorral@ksby.com] David Alley, KCOY (David alley@kcoy.com} Chris McGuinness, New Times femcguinness@newtimessio.com] Dave Congalton, KVEC [dave@320kvec.com} Jalme Umphenour jalme@kpr.com] News@kcoy.com 20181265, 11 79¢kltr