Last Wednesday evening, June 18, I published here the second of three posts of Penny Brill's swipe card times. The following morning, June 19, I received an email from Don Horn forbidding me from directing any further legal inquiries to Ms. Brill, who is the head of the Legal Division.

That same morning in response to Horn's offer I scheduled a meeting with him to discuss his action, which I considered retaliation against me for publishing public records lawfully obtained by me and provided to me by my office. Before the meeting I emailed Horn, Ted Mannelli, acting Records Custodian, and my direct supervisor, Jose Arrojo asking if I was subject to any administrative action. I verified that each had read the email that I sent. They never responded and I consider their silence to be acknowledgment that administrative action against me is being contemplated.

Therefore, I am suspending further publication of State Attorney's Office public records on this site. Further, I am deleting all of those previously published here. This suspension will continue until, and if, I am satisfied that I may publish legally free from action against me by my office.

"Card Access Event Report:" Fariba Komeily, cont.

3/12/2007 10:38:40AM
3/13/2007 10:04:16
3/14/2007 12:05:50
3/15/2007 12:46:04
3/16/2007 9:30:20 AM
3/20/2007 9:09:52 AM
3/21/2007 8:37:28 AM
3/22/2007 12:16:26
3/23/2007 3:18:36 PM
3/26/2007 10:17:44AM
3/27/2007 9:24:04 AM
3/28/2007 9:42:10 AM
3/30/2007 5:06:38 PM
4/2/2007 8:47:33 AM
4/3/2007 10:29:49 AM
4/4/2007 9:08:58 AM
4/5/2007 10:14:48 AM
4/10/2007 9:32:10 AM
4/11/2007 9:29:26 AM
4/12/2007 10:39:08 AM
4/13/2007 9:58:58 AM
4/16/2007 10:12:58AM
4/17/2007 9:11:18 AM
4/18/2007 1:04:52 PM
4/19/2007 8:57:40 AM
4/20/2007 10:10:54
4/24/2007 9:46:34 AM
4/25/2007 1:08:33 PM
4/26/2007 9:32:38 AM
4/27/2007 11:33:02AM

more

"Card Access Event Report:" Fariba Komeily

2/1/2007 9:32:24 AM
2/2/2007 9:49:54 AM
2/5/2007 9:28:14 AM
2/7/2007 8:36:20 AM
2/8/2007 9:40:28 AM
2/9/2007 8:44:26 AM
2/12/2007 9:38:06 AM
2/13/2007 11:48:12
2/14/2007 9:40:52 AM
2/15/2007 9:34:46 AM
2/20/2007 9:39:52 AM
2/21/2007 9:52:06 AM
2/22/2007 8:33:34 AM
2/26/2007 9:33:44 AM
2/27/2007 9:27:06 AM
2/28/2007 12:50:54
3/1/2007 10:28:28 AM
3/2/2007 10:54:54 AM
3/5/2007 9:38:26 AM
3/6/2007 1:04:36 PM

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"Card Access Event Report:" Joel Rosenblatt

The records below show that from February 1-August 1, 2007, Mr. Rosenblatt swiped his access card once between the hours of 8:30 am and 9:00 am (and that one, at 8:59:12). On fifty-four of the one hundred three days for which there is any use of the card by him, the swipe times were after 11:00 AM. On seventy-five days (72%), the times were after 10:00 AM.

2/1/2007 11:15:08 AM
2/2/2007 11:23:10 AM
2/5/2007 10:50:26 AM
2/6/2007 11:17:22 AM
2/7/2007 11:36:40 AM
2/9/2007 10:07:50 AM
2/12/2007 11:30:46AM
2/13/2007 11:20:12AM
2/14/2007 1:43:24 PM
2/15/2007 11:17:42AM
2/16/2007 11:24:04AM
2/19/2007 11:27:14AM
2/20/2007 11:49:12AM 2/21/2007 11:31:46AM
2/22/2007 10:48:18AM
2/23/2007 11:15:04AM
2/26/2007 11:15:16AM
2/27/2007 11:20:26AM
2/28/2007 12:36:06PM
3/1/2007 11:25:28 AM
3/2/2007 11:17:54 AM
3/5/2007 11:41:22 AM
3/6/2007 11:37:10 AM
3/7/2007 11:31:08 AM
3/8/2007 11:14:54 AM
3/9/2007 10:32:26 AM
3/12/2007 11:40:38AM
3/14/2007 11:14:50AM
3/15/2007 11:55:46AM
3/16/2007 11:25:04AM
3/19/2007 11:57:06AM
3/20/2007 11:39:24AM
3/21/2007 11:27:08AM
3/22/2007 12:24:38PM
3/26/2007 2:55:44 PM
3/27/2007 11:28:48AM
3/28/2007 11:13:50AM
3/29/2007 10:10:58AM
3/30/2007 10:12:04AM
4/3/2007 11:03:46 AM
4/4/2007 11:36:32 AM
4/5/2007 10:58:00 AM
4/6/2007 12:12:22 PM
4/9/2007 11:46:28 AM
4/10/2007 5:51:04 PM
4/11/2007 2:53:44 PM
4/12/2007 12:47:58PM
4/16/2007 1:12:22 PM
4/17/2007 11:27:42AM
4/18/2007 11:44:04AM
4/19/2007 11:47:46AM
4/20/2007 11:29:26AM
4/23/2007 11:53:18AM
4/24/2007 1:40:08 PM
4/25/2007 5:22:24 PM
4/26/2007 11:23:00AM
4/27/2007 11:53:30AM
4/30/2007 10:25:46AM
5/1/2007 9:54:52 AM
5/2/2007 1:48:38 PM
5/3/2007 11:34:10 AM
[Per Mr. Mannelli's advisory, May 4-17 are skipped]
5/18/2007 10:14:20AM
5/22/2007 11:27:40AM
5/23/2007 11:20:38AM
5/25/2007 11:09:42AM
5/29/2007 10:38:54AM
5/30/2007 11:06:00AM
5/31/2007 10:56:02AM
6/1/2007 12:18:42 PM
6/4/2007 12:34:50 PM
6/5/2007 11:28:44 AM
6/6/2007 12:11:54 PM
6/7/2007 11:35:20 AM
6/11/2007 10:53:38AM
6/12/2007 11:01:56AM
6/13/2007 11:02:12AM
6/14/2007 10:12:02AM
6/15/2007 10:14:40AM
6/18/2007 10:30:36AM
6/19/2007 10:24:24AM
6/20/2007 11:04:50AM
6/21/2007 10:20:08AM
6/25/2007 9:37:14 AM
6/26/2007 10:20:30AM
6/27/2007 10:36:28AM
6/28/2007 10:25:24AM
6/29/2007 11:44:30AM
7/2/2007 10:24:10 AM
7/11/2007 11:20:12AM
7/12/2007 8:59:12 AM
7/13/2007 11:19:34AM
7/16/2007 9:58:42 AM
7/17/2007 11:10:12AM
7/18/2007 12:21:16PM
7/19/2007 11:26:18AM
7/20/2007 11:12:20AM
7/23/2007 10:58:24AM
7/24/2007 10:06:58AM
7/25/2007 11:12:30AM
7/26/2007 11:19:12AM
7/27/2007 9:34:38 AM
7/31/2007 11:09:30AM
8/1/2007 10:22:04 AM

"Card Access Event Report:" Joel Rosenblatt, cont

"Card Access Event Report:" Penny Brill, end

6/27/2007 9:57:12 AM
6/28/2007 9:54:16 AM
6/29/2007 10:11:34AM
7/2/2007 9:57:34 AM
7/3/2007 9:48:28 AM
7/5/2007 9:45:44 AM
7/6/2007 9:55:54 AM
7/9/2007 9:53:58 AM
7/10/2007 10:06:02AM [This entry demonstrates the accuracy of the card swipe times, and the reason why the administration uses them to confirm employees' arrival times. Ms. Brill responded to my email of the same day at 10:15, just nine minutes after the card swipe time indicates that she entered the 5th floor, which is where the Legal division is]

7/11/2007 9:42:18 AM

7/12/2007 9:40:32 AM

7/13/2007 9:59:10 AM

7/17/2007 9:59:52 AM

7/18/2007 9:41:20 AM

7/19/2007 10:14:18AM

7/20/2007 10:04:28AM

7/23/2007 9:55:24 AM

7/24/2007 10:01:30AM

8/1/2007 9:54:08 AM

If a member of the Legal division is "normally" in the unit by 8:30 or 9:00 as Ms. Brill claimed in her email to me, necessarily it would have to be someone other than her, for in the six-month period covered by these records, she was in the unit between those times on five mornings.

Every document that has been published here was published only after I had obtained it through lawful public records request of my office. By law these documents are available to any member of the public, including me, without penalty. Nonetheless, on Thursday morning, Don Horn took action against me after the first two postings of Penny Brill's card swipe times. He sent me an email, copying Jose Arrojo, informing me that I may no longer direct legal inquiries to Ms. Brill, the head of the Legal division. Ms. Brill has the final, authoritative word on issues that come before the Legal division. Additionally, I have pending matters on which Ms. Brill has worked with me exclusively.

Horn advised that if I had any "issues" with this to set up a time to meet with him. I did, and I did. However, before attending the meeting I sent an email to him, Ted Mannelli, and Jose Arrojo asking if I was under threat of administrative sanction by the office. I verified that all three had read the email. None responded. Therefore, I assume that I am under additional threat of administrative sanction. I did not attend the meeting.

"Card Access Event Report:" Penny Brill, cont.

4/26/2007 10:00:42 AM
4/27/2007 10:34:02AM
4/30/2007 11:04:34AM
5/1/2007 9:55:32 AM
5/2/2007 9:29:08 AM
5/3/2007 9:55:42 AM
[Per Mr. Mannelli's statement in the response to this public records request that there was a computer hardware failure from May 4-17, I have omitted the one entry from that period]
5/18/2007 6:13:44 AM
5/21/2007 9:39:22 AM
5/22/2007 10:13:36AM
5/23/2007 9:57:42 AM
5/29/2007 10:55:18AM
5/30/2007 9:53:32 AM
6/11/2007 9:42:30 AM
6/12/2007 9:59:34 AM
6/13/07 1:19:38 PM
6/14/2007 9:19:46 AM
6/15/2007 10:36:54AM
6/18/2007 10:09:48AM
6/19/2007 12:37:10PM
6/20/2007 11:21:34AM
6/21/2007 11:19:16AM
6/22/2007 9:08:56 AM
6/25/2007 10:22:42AM
6/26/2007 9:25:14 AM

more

"Card Access Event Report:" Penny Brill

Last fall, [actually, July 9] at about 8:00 one evening, I was working with two of the prosecutors who I supervise who were in trial. They needed a special jury instruction drafted. Only the Legal division can approve special jury instructions and there was no one in Legal at that hour so I told the prosecutors to check first thing in the morning with them.

At about 8:30 the following morning, they came down to my office and told me that no one was in Legal yet. We waited and I made a couple of phone calls to Legal to check if anyone had arrived and left messages. I sent an email to Don Horn reporting the situation. At 9:38 (I'm doing this from memory; if the exact time turns out to be different, I will correct) [9:36] when no one had yet returned our calls, I sent Penny Brill, the head of the division, an email asking why no one was in the division by that time.

Sometime after ten o'clock (the exact time I will check), [10:15] Brill finally responded. She wrote that someone is usually in the division at 8:30 or 9:00 but that this day three people were out on leave and two were ill. I asked Ms. Brill if that would be demonstrated by a public records request and she didn't respond.

I knew that records existed that showed each time a person swiped his/her SAO id card to gain entry to a floor, or in some cases, an office. The administration has used these records in the past when confronting ASA's who they suspect are coming in late. Therefore, I made a public records request for the card swipe times of all members of the Legal division for the preceding six months.

The administration initially refused to turn over these records but then, "after delving further into [the] request," they determined that the card swipe times "might be construed to be a public record," and "to err on the side of caution," they provided them to me. Initially, I had requested a year's worth, they balked; I asked for six months, they agreed.

Despite the administration's own use of these card swipe times, I was cautioned about making too much of them:

"Please be aware that the card access system is not a reliable way of tracking employee attendance (and is not utilized for timekeeping by the SAO) in part due to the following:

* There is no 'exit swipe;' therefore there is no way to tell when a person leaves an area.
* If a person entering or exiting holds the door open for another person, there will be no record in the system.
* Extended power failures may cause a loss of records before they are downloaded to the server.
* Due to a card access server hardware failure from May 4th to May 17th all event records during that time frame should be considered incomplete."


I also requested and received leave slips for this six month period. Because of the time it would take to check the leave slips against days where there is no card swipe activity, I presume that the Legal division ASA's began work at or before 9 am and left on or after 5 pm on those days.

An additional tool that the administration sometimes uses to bolster their case against late-comers is the time of first activity on their computers. I requested those too but the request was denied and stayed denied. The reasons given were that public records law only applies to records that do exist; that there is no provision requiring the office to create a record that does not exist; that the office does create those records when it wants to and against whom it wants to, is administrative prerogative, not public record.

Below are the times of the day when Ms. Brill first swiped her card, i.e. those that would most closely correspond to the first time that she came to work.

Card Access Event Report

2/1/2007 9:40:32 AM
2/2/2007 9:51:06 AM
2/5/2007 10:43:50 AM
2/6/2007 11:02:32 AM
2/7/2007 9:49:00 AM
2/8/2007 9:45:18 AM
2/12/2007 9:36:42 AM
2/13/2007 10:01:08
2/14/2007 1:11:54 PM
2/15/2007 9:59:18 AM
2/16/2007 9:48:34 AM
2/19/2007 8:55:14 AM
2/20/2007 9:42:16 AM
2/21/2007 10:43:18
2/22/2007 9:56:58 AM
2/23/2007 12:06:52 PM
2/26/2007 9:45:56 AM
2/27/2007 10:02:46
2/28/2007 10:15:02
3/1/2007 9:17:56 AM
3/2/2007 4:27:34 PM
3/6/2007 3:28:14 PM
3/7/2007 9:25:12 AM
3/8/2007 9:38:06 AM
3/9/2007 9:44:10 AM
3/12/2007 9:52:02 AM
3/13/2007 9:47:36 AM
3/14/2007 11:59:38
3/15/2007 9:47 AM
3/16/2007 10:01:04
3/21/2007 9:18:56 AM
3/22/2007 9:55:14 AM
3/23/2007 10:04:58
3/26/2007 9:51:46 AM
3/27/2007 9:47:32 AM
3/28/2007 10:04:06
3/29/2007 4:20:12 PM
3/30/2007 9:58:48 AM
4/2/2007 9:56:32 AM
4/3/2007 9:45:54 AM
4/4/2007 8:54:18 AM
4/6/2007 10:07:30 AM
4/9/2007 9:11:16 AM
4/10/2007 9:59:06 AM
4/11/2007 8:56:26 AM
4/12/2007 6:30:38 PM
4/13/2007 8:42:18 AM
4/16/2007 9:49:14 AM
4/17/2007 11:16:46
4/18/2007 11:41:04
4/20/2007 10:01:34
4/23/2007 10:51:22
4/24/2007 9:47:28 AM

more

Daily Business Review article

Don Horn, quoted in the article:



"He's voicing a conclusion to a police officer before he's received the first police report," Horn said.



That is absolutely untrue. It was specifically because I was not voicing a conclusion, i.e. that the shooting was justified, that led to my removal. In the phone call to me I specifically told Det. McCully, and documented it in the February 23 email, that I could not reach that conclusion.



McCully went on to say Barquin had a gun in one hand and a sock in the other. Ranck told McCully that sounded implausible.


Billy Shields, the author of the Daily Business Review article, got these facts from the February 23 email, and he got them wrong. This was the sequence written in standard English from the email:


(1) I told Det. McCully that I had remembered the proffer being that Ofcr. Espinosa said (via proffer) specifically that Barquin had a firearm and had pointed it at him.


(2) McCully said that he had remembered that Espinosa had said he had seen something that "looked like" a "weapon."


(3) McCully checked his notes and verified that Espinosa had said Barquin had a firearm.


(4) McCully told me that Espinosa had said that Barquin had a sock on his hand and that perhaps Espinosa had misstook the sock for a firearm. This is what I told McCully sounded implausible.


(5) McCully then said that Espinosa had distinguished Barquin's hands: one had a sock, the other a firearm. Shields completely left this part out of his article.