Orange County District Attorney Todd Spitzer regularly fights against releasing data on who his office charges with crimes – a policy change he introduced in 2021, a year before he faced reelection.
It’s a practice the ACLU calls “egregious,” saying he’s one of the least transparent district attorneys in the state when it comes to releasing prosecution data.
“It was illegal for the DA to stonewall and deny the public access to records over the course of three years,” said ACLU attorney Emi MacLean in an interview about their long standing public records case that produced a slew of documents showing how Spitzer’s office improperly denies requests for information.
“There are fundamental obligations to disclose what the government is doing in our name, and the Orange County DA’s actions in response to these public records requests completely ignored their obligations with zero basis in law,” MacLean said.
The issue is being highlighted in a lawsuit from the ACLU and Chicansx Unidx de Orange County, who sued the county’s top prosecutor in court and won the release of racial prosecution data on who Spitzer’s office prosecutes in August.
Records obtained by the ACLU in their lawsuit show that new policy blocking the release of records came just after then-Voice of OC reporter Nick Gerda filed a records request on Feb. 25 2021, seeking data on what the DA was charging people with.
Less than a week later on the evening of March 2, senior deputy district attorney Denise Hernandez emailed Kimberly Edds, Spitzer’s chief spokesperson, saying they would no longer be producing records like that, according to public records obtained by the ACLU.
“To confirm our conversation, going forward we will not prepare records that are not already in existence in response to a Public Records Act request,” Hernandez wrote. “This applies and includes data extraction requests such as the one here from VOC.”
Edds responded the same day.
Voice of OC reached out to the DA’s office email for comment before publication, but was told after publication that email was not working due to a cyber attack last week.
Hernandez responded to Gerda’s request three days later, claiming the data did not exist.
“Your request calls for a record of a compilation of information within the Orange County District Attorney’s Office,” Hernandez wrote. “We do not have a responsive record to your request.”
Gerda is now a reporter for LAist.
Just weeks earlier, the DA’s office responded to a request for different prosecution data from the LA Times and answered it without any issues.
The ACLU found that after the DA implemented their new policy, dozens of other records requests from media outlets, academics, nonprofits, public defenders and more were denied after that.
All of those requests were seeking some type of prosecution data, including the DA’s conviction rate on murders, rape and all instances of domestic terrorism.
A few years ago, Voice of OC found that the most charged crime in Orange County was for drug paraphernalia – like meth pipes. That data came from the OC Superior Court.
While no judge has ruled on the policy as a whole, OC Superior Court Judge Walter Schwarm found in August that Spitzer was required to release the racial data on who his office prosecutes to the ACLU after they sued for the records under the California Public Records Act.
“Petitioners are entitled to receive ‘statistical or research information’ obtained from OCDA’s records, as long as identifying information about the subjects of the records, e.g., names and birthdates, is not disclosed,” Schwarm wrote in his ruling.
When Voice of OC asked for a copy of the records, multiple staff from the DA’s office declined to release them, saying they’d come out when the case is completely wrapped up.
“No final determination exists regarding the prosperity for release of the entirety of records sought in that case,” wrote Wayne Phillips, the DA’s public records counsel.
“Consequently, the OCDA will not produce documents in response to your request at this time, and in no event, before the above-referenced litigation is concluded,” Phillips said.
Edds repeated Phillips’ statement when asked about the issue.
“You received a response on Oct 4,” Edds wrote in a Tuesday text. “The issue is still the subject of litigation.”
While Spitzer’s office is refusing to release the racial prosecution records to the public, the ACLU obtained some and has been publishing them – giving county residents their first look at prosecution data from Sptizer’s office in years.
To access the records, click here.
The records highlight how Spitzer’s office prosecutes people of different races, and feature hundreds of pages of spreadsheets highlighting what defendants were charged with, their sentences, along with their race and gender.
When asked about the issue, MacLean said it illustrated how their lawsuit alone wouldn’t be enough to change the DA’s policy of refusing the release of prosecution data.
“The fact they’re only producing prosecutorial data to us in response to our request and not to others is highly concerning and demonstrates that the DA’s office is still not willing to readily comply with their obligations under the law,” MacLean said. “That’s very concerning.”
Noah Biesiada is a Voice of OC reporter and corps member with Report for America, a GroundTruth initiative. Contact him at firstname.lastname@example.org or on Twitter @NBiesiada.
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