On January 12, 2007, Californians Aware (CalAware) released its self-described audit of 216 law enforcement agencies throughout the state.This survey was conducted December 4, 2006 by employees and volunteers associated with various newspapers and broadcast news organizations. The survey consisted of both oral and written requests for law enforcement related documents. Agency responses were graded on a 100 point scale. Each agency, based on its final numerical score, was assigned a corresponding grade from A to F. CalAware compiled the grades for law enforcement agencies statewide, and concluded that collectively, law enforcements agencies earned an F grade. Based on our review of the information provided by CalAware, and information from those agencies subject to the audit, the League has serious concerns regarding the methodology used by CalAware, and the accuracy of the reports submitted by the volunteer auditors. As discussed above, CalAwares methodology consisted of grading agency responses on a 100-point scale. Points were deducted where CalAware felt that an agency had not adequately complied with what CalAware believed to be the appropriate response to the public records request. But the bases for these deductions are problematic. For example, many agencies suffered a 20-point deduction because they requested that the auditor fill out a request form. The concern expressed by CalAware is that these forms included lines for the auditors name and affiliation. California courts have held that the agencies cannot require a requesting party provide a name or other identifying information as a condition to submitting a public records request. But CalAware does not seem to have distinguished between those agencies that requested the form be submitted voluntarily, as opposed to where an agency may have improperly required the auditor to submit the form. This overly rigid interpretation of state law may have unfairly penalized agencies that use a form to assist both the requesting party and agency with public records requests. A second example concerns agencies that were penalized because they referred auditors to another department in the city for particular records being requested.For example, many agencies referred auditors to their City Clerk for copies of the Form 700s for the police chief and other department management. This resulted in a 10-point penalty. The concern expressed by CalAware is that the police department should be prepared to respond to all requests for any documents. They refer to this as one stop shopping. But there is nothing in state law that requires one stop shopping, nor does this seem particularly practical. With respect to Form 700s, state law provides that they are to be filed with the City Clerk. It makes little sense to penalize an agency for directing an auditor to the specific public official charged with maintaining a public record. Based on the documents requested, an agency could be penalized as much as 30 points because of the potential need to refer auditors to other departments within the city. Thus, cities can potentially be subject to as many as 50 penalty points while otherwise fully complying with the Public Records Act. This would result in a D grade, even if the city fully and timely responded to the records request. Further, it appears some cities were penalized for failing to make records available immediately in response to an oral request, despite the fact that the Public Records Act allows agencies 10 days in which to respond to a request. And some agencies appear to have been penalized for not producing documents where the auditor was specifically informed that the requested document did not exist. Regardless of these concerns, cities should not dismiss these results out of hand as they do provide some important lessons when responding to public records requests: Customer service remains a key factor in responding to requests from the public, whether the requests are for public records or for some other purpose While forms may assist with responding to public records requests, staff needs to be aware that they cannot condition disclosure on the requesting party providing a name, affiliation, or contact information. Further, staff should not be inquiring as to the reason the requesting party wants the record. This is irrelevant as to whether the requested documents must be disclosed or not. While CalAware may disagree, it is appropriate for staff to refer a request to another appropriate person in the city, or in certain circumstances, to refer the request to the City Attorneys office. But staff needs to be aware that the Public Records Act does impose deadlines for responding to a public records request. So staff should ensure that referrals to the City Attorneys office are not unduly delayed.    CalAware's Comments Point one: "CalAware does not seem to have distinguished between those agencies that requested the form be submitted voluntarily, as opposed to where an agency may have improperly required the auditor to submit the form.This overly rigid interpretation of state law may have unfairly penalized agencies that use a form to assist both the requesting party and agency with public records requests." As explained in the materials available to everyone on our website, the auditors we trained were instructed not to state a false identity, but were told not to reveal their full names or employers unless the agency made such disclosures an absolute condition to getting information. In such event, in order to continue the audit to capture other information, they were instructed to provide whatever was clearly demanded, including filling out a form if insisted on. . . . "Auditors were instructed by Californians Aware that normal human curiosity was not to be held against the department, and so when an information officer or employee asked about such particulars, the auditor was to determine if a refusal to supply them would disqualify him or her from receiving the requested information." Thus no agency lost points on this ground unless, upon pointed inquiry by the auditor, its spokesperson confirmed that these disclosures were necessary as a condition to obtaining information. Point two: "A second example concerns agencies that were penalized because they referred auditors to another department in the city for particular records being requested.For example, many agencies referred auditors to their City Clerk for copies of the Form 700s for the police chief and other department management.This resulted in a 10-point penalty.The concern expressed by CalAware is that the police department should be prepared to respond to all requests for any documents.They refer to this as one stop shopping.But there is nothing in state law that requires 'one stop shopping,' nor does this seem particularly practical.With respect to Form 700s, state law provides that they are to be filed with the City Clerk.It makes little sense to penalize an agency for directing an auditor to the specific public official charged with maintaining a public record." CalAware never maintained that state law requires "one stop shopping." What we said on our website was, "This 'one stop service' standard exceeds the minimum requirements of the law, based on the notion that records pertaining to a departments activities or personnel are its responsibility either to have on hand or to obtain for a requester, rather than sending him or her to another office outside the department, which may be across the street, across town or across the county. This standard may seem a strict one, but it is not impossible to meet a number of departments did, and it was applied evenhandedly." As it happened, the highest incidence of auditors being sent elsewhere for a record was indeed in the case of the Form 700. We are aware of only one department that failed the audit for sending the auditor elsewhere for a large number of records, and that occurred because of an arrangement we did not anticipate. The auditor was sent to city hall for all records of every kind because, the police department maintained, it kept none of its own records within its four walls. But the fact remains that aside from this anomaly, what flunked departments was not sending people elsewhere. It was failing other standards that are set by law. As our findings and conclusions summed up: "Many if not most California policing agencies fail the open government obligations that they share with other public agencies so radically that it is hard to view them as part of the same public universe. "Those obligations are to know the rudiments of the California Public Records Act and to treat unfamiliar citizens who request information with at least the same readiness to provide it as is granted to journalists, without demanding identity and other disclosures that are neither sanctioned by the law nor explained by innocent need.In this audit the most common experience was that the requester was required to provide his or her identification, purpose and/or affiliation, but then left the department or office empty-handed, and at best waited one or more weeks to learn whether any information would be forthcoming at all. "Most information was not forthcoming. Ironically, the only requests made in the audit of sheriffs and police departments that led more than half of them (52 percent) to provide access was for copies of the departments public information policy and of its fee policy for copies of crime reports for victims." Point three: "Further, it appears some cities were penalized for failing to make records available immediately in response to an oral request, despite the fact that the Public Records Act allows agencies 10 days in which to respond to a request.And some agencies appear to have been penalized for not producing documents where the auditor was specifically informed that the requested document did not exist." As noted on our website, the department stood to lose 5 points each for failing to produce the Form 700 or the requested crime or arrest information within 3 days of the oral request for them. No one was penalized "for failing to make records available immediately"and there can be no doubt that those categories of information are affirmatively public. Moreover, as to claims of nonexistence, the scoring protocol "throughout the audit (was that) if the response was that no such records exist, the auditor took the agency at its word and no points were deducted." Interestingly Mr. Whitnell's memo ends by observing that"(c)ustomer service remains a key factor in responding to requests from the public, whether the requests are for public records or for some other purpose," and that "staff needs to be aware that they cannot condition disclosure on the requesting party providing a name, affiliation, or contact information.Further, staff should not be inquiring as to the reason the requesting party wants the record." and that "staff should ensure that referrals to the City Attorneys office are not unduly delayed." I would add two qualifiers. First, CalAware will continue to maintain and will score the second audit accordingly that whatever "customer service" means to the League, to us it means at a minimum that a city or county department must take the initiative, the responsibility and the effort to obtain and produce for the requester those records filed elsewhere that clearly pertain to its own operations. Shrugging off this role and sending the requester elsewhere may not violate the law, but it can hardly be viewed as "customer service." Second, it is not enough that staff notify the city attorney of a pending public records request in a timely fashion. The city attorney needs to keep his or her own eye on the calendar and provide determination notices within 10 days of the request, period, if the requests are no more complicated and numerous than those in this audit. Any city attorney who could not have done, within 60 minutes, the factual and legal research needed to tell if the 10 categories of records specified in the written request letter (a) existed and (b) were exempt from disclosure does not deserve to handle such requests. Granted, writing the determination letter might take another hour or so. But nothing explains the frequency of the resort to 14-day extensions (after the first 10 days' delay) better than that the request was not viewed as a high priority.