The City of Ferguson has been caught in a lie. Two lies in fact. Exacerbated by telling the lie to multiple individuals and over at least a two week period. And in this article I will prove it.
The question was recently raised (Ferguson’s Massive Cover Up) as to whether the evidence demonstrated that the City and Police Department were involved in providing cover for Officer Darren Wilson and covering up the Department’s actions by refusing to comply with the public records provisions of Missouri’s Sunshine Law.
We now have the indisputable proof:
YES, in fact the City’s officials are indeed violating the law to deny the public the right to records the City and Department do not want to release.
They have been caught knowingly and purposefully telling lies to deny the timely production of records they are legally obligated to provide. And in Missouri that is a crime.
I will focus here on one of the two lies: the false claim that because of the Department of Justice’s investigation the City could not release police records.
The second lie, that the City could not provide the videos from their newly donated body cameras will only be touched upon here. The City falsely claimed that because a “General Order” of the Department – an internal policy – existed prohibiting their release, the videos could not be provided under the state public records law.
The lies in a nutshell: (1) The Department of Justice has not taken possession of the original records of the Ferguson Police Department and there is nothing about the Department of Justice investigation that precludes or prohibits the City from releasing those records in compliance with the state’s public records law.
And (2) there is no General Order, or policy, in existence by the Ferguson Police Department on the use of officer cameras or the release of the videos.
That both the City Attorney, Stephanie Karr and City Clerk, Megan Asikainen, have gone on record claiming the first; while the Ferguson Police Department’s Public Information Officer, Timothy Zoll, has done similarly with regard to the second, will be shown conclusively in this article to be not merely disturbing acts and facts – but to be evidence of criminal violations of the law by officials of the City of Ferguson and its Police Department.
Crimes committed under the color of law – on behalf of and under the authority of the government – with the purposeful intent to conceal from the public what they have a right to know about their government agencies and actors. Crimes to cover up and conceal from public view what the officials in the Ferguson Police department are and have been doing at the very time when the public’s trust and confidence in that agency and its officials are already in question. Crimes that only confirm that the public has no reason to afford that agency or its officials that trust and reinforce the public’s lack of confidence that the agency and its officials can police itself.
I will thus be calling on all those members of the public who are concerned about such issues to take ACTION: (1) Contact the District Attorney, Bob McCulloch, and demand that he charge and prosecute these officials for the crime of knowingly violating the public records law – a Class A Misdemeanor punishable by up to a year in prison and a $1,000 fine; and (2) Contact the Department of Justice to inform them of the continued cover-up and related unlawful activities by the City and Police Department of Ferguson.
The details on how you can participate in these two ways – and an easy form to use to do so – will be provided at the end of this article. We know that only if the public demands it – with a strong showing of support – will these two obligations be fulfilled. And so I am setting a goal of 1,000 emails to be sent to the respective officials to demand they perform these two duties. [JUMP TO ACTION]
THE CASE FOR THE LIES/DECEPTION
The following is a long, detailed, and heavily documented article. For good reason.
To make the kinds of claims I am here – that officials are lying, decieving the public, unlawfully withholding records, and that they are doing so knowing what they are doing and thus with purpose and intent, indeed that they are commiting criminal offenses – requires such detail and extent.
Because the argument is detailed and the presentation lengthy I have chosen to embed the primary documents in a separate section below [link] rather than in the text itself. This should enable the reader to better grasp the bigger picture while still being able to refer to the evidence directly.
In summary the case is proven as follows:
I received a response to two requests for public records on September 11th sent by the City Attorney via email. In that response she stated that the requested records could not be produced under the legally required timeframe. The reason, she openly stated, was the Department of Justice was reviewing those records at this time. This, she stated, precluded City Officials from obtaining the records and making copies.
What I show is that this statement, while not impossible, is implausible. There is no reason for the DOJ Investigation to have taken from the City all of their original records – and in these requests this would not have been possible given the time of the event and the request for the records of it – and this is not the normal procedure for their investigations.
I then prove that this was a lie by the statements of the Department of Justice itself which denied their investigation would cause the City the inability to comply with Missouri’s Sunshine Law and confirmed that they had not taken possession of the original files.
I further confirm the untruth of this statement by a request for the “written permission” the law required of the City Clerk to remove the records from the City’s possession – which confirmed that no such record existed. Further demonstrating that at all times the City did have the records and thus could have accessed them and made copies and under the law should have.
I demonstrate that the lie was not just being told by the City Attorney but both with the knowledge and consent of the City Clerk, who is the legal custodian of these records, and also by the lie being told directly by the Clerk herself. Thus at minimum the City Attorney and the City Clerk had conspired to violate the Missouri Sunshine Law, by denying the public access to records, and trying to blame the Department of Justice via a knowing and purposeful official lie.
I then show how, upon being caught in that lie and giving proof of it to the City Attorney, she admitted the lie by immediately providing me a response to one of the requests by providing the very records she said were unavailable for the purpose.
Beyond proving this conspiracy to lie to deny records, I then demonstrate how extensively this lie was employed to deny the requests of more than twenty different people for a number of different records of the Ferguson Police Department. Just how extensively this lie was employed and how many people are involved in it are not yet known. To answer the first question I made another request: for the public records requests and responses produced in this period. The responses were very different than every prior request – with a number of questionable claims made and clearly intended to make obtaining the records (records that would further prove the lie and extent of the conspiracy) difficult if not impossible.
The evidence, I argue, is now indisputable. The City of Ferguson is involved in deliberate acts in violation of state law intended to prevent the public from knowing what has been going on within the Ferguson Police Department.
ARRESTED FOR THEIR MANNER OF WALKING
On Sunday, September 7th, the Ferguson Police made two arrests of protesters marching along West Florissant Ave – the scene of the majority of the protests and marches. The charge was effectively wrongfully walking along the road – the same complaint that Darren Wilson used to engage Mike Brown setting in motion the events that led him to fatally shoot him in the middle of that street.
This allegation is merely of a violation of a municipal ordinance not a criminal act. It has, however, been well documented in the past month that ordinance violations have been used in the area by the municipalities – with special municipal courts, judges and prosecutors exclusively for this – not only generating a significant portion of their income via this means, but also leading to an enormous amount of arrests.
Yet such violations are the equivalent of a traffic ticket. Imagine the reaction of the general public if they learned that instead of getting a ticket for such an offense that they were likely to be arrested, detained overnight, and had to obtain bond for their release?
But this is exactly what has been consciously being done in Ferguson and the surrounding areas for a long time.
Now that the height of the protests appears to be over and the major media presence is gone the practice has been extended with the objective of discouraging protests – by making participation an arrestable offense.
Its time, officials feel, to get back to normal in Ferguson. So the City’s officials have encouraged the use of the police power to eliminate the abnormal – the protests.
So it is no accident that each night, at about seven in the evening, a large contingent of armed police officers from multiple agencies descend on West Florissant. The police presence is meant to send a message – the protests, and protesters, are unwelcome. And while that pesky First Amendment Right to Free Speech and Assembly interferes with their ability to directly suppress the protests – it does not tend to get in the way of techniques intended to harass people to such an extent that they do not feel welcome – or safe – engaging in those rights. [See this VIDEO for an example]
We continue to see for ourselves, despite the media exodus, what is going on because of the set of “citizen journalists” known as livestreamers who continue to document the activities and share them via the internet with the world.
Absurdly, but with the force of authority, police descend on the streets and nitpick the protesters with tortuously distorted “interpretations” of the law. They are looking for anything that they can say is a violation in order to make arrests and otherwise intimidate those who dare to express their views.
Another notoriously absurd scene repeating itself daily is when the police shut down the street, multiple vehicles blocking any potential traffic, and then fill the street with armed officers bearing down upon the usually much smaller group of protesters. They need to disburse, they demand – usually with at least one loudspeaker leading the chorus, or face arrest. “You are blocking traffic!” [See this VIDEO for an example]
We can’t stop the protests, they admit, because of the First Amendment. But while the people can go out in public and thus be present on the streets they are not legally, it is forcefully declared, allowed to stand still. Not even for a moment. [See this VIDEO for an example]
Even those attempting to report the story of the protests are subject to these inane harassment techniques – as in this video where the reporter, standing in an empty private parking lot to do his video feed several yards away from the protests, is harassed by police stating he has to “stand on the sidewalk.”
Imagine if you and your family went to historic St. Louis and stopped on the corner, not far from the Gateway Arch – the midwest equivalent of the Statue of Liberty welcoming all who took up Horace Greeley’s call to “Go West, young man!” as they crossed the Mighty Mississippi – to capture that moment on film … or today … on your iPhone.
If the law were as it is claimed on West Florissant – and were equally and evenly enforced on all persons in all places – you would be violating it. At least according to the police officers patrolling the protests. You are more than welcome to be “on” the street – you just cannot stand still there – not even for one single moment. Stop to tie your shoe – and an officer will be bearing down upon you: “YOU NEED TO MOVE!”
As you stroll along the streets lined with shops on your way to ride up to the top of the Arch, the tallest man-made structure in this hemisphere, perhaps having just toured the Basilica with its awe-inspiring mosaics, don’t stop to window shop – make sure you go inside. Otherwise you would hear a loud voice and berating tone barking at you: “KEEP MOVING!”
If you see a street vendor and want one of those snow globes with the Arch inside – don’t dare stop to pay – but be sure to make a continuous circuit. Keep moving as you eye the merchandise, choose your trinket, and hand off the cash to the merchant like an Olympic relay team. Otherwise you are likely to be arrested.
At least that is the position on the law as it applies to protesters … and in Ferguson.
The intent is clear. If you keep using the police to harass those who take to the streets, less and less people will desire to participate. Whether out of fear of being arrested or the desire not to be publicly berated by an authoritarian public servant – the result is predictable. The more the police are present – and the more police present – the fewer will be the people willing to dare exercise those First Amendment Rights.
The City and Police officials know this. Or at least they think they know that this will ultimately be the result. But there is a danger lurking in the deeply felt and now openly expressed tensions. If this continues it will result instead in a backlash.
A growing number have lost trust in the police and government officials, they are increasingly frustrated by the perceived injustices when officers who use excessive and even deadly force are not charged, and more and more are angered by the treatment they meet on the streets by police. At some point, if this continues as appears likely, they may just lash back at that authoritarian presence. This is a dangerous gamble on the part of the City’s officials.
In this context it is no surprise that we learn of continued arrests for non-violent offenses. Charges that, at most, should have warranted no more than the handing over of a citation. The police know they cannot make such an arrest. So they do what has become the norm, across the nation; they use open-ended and highly subjective offenses such as “Failure to Comply” to accomplish their objective.
The officer barks a command in his best authoritarian tone. When the intended target does not jump as far, as fast, and as high as expected – they failed to “comply” and are thus taken to jail. They are booked, held over night, charged, and if they can afford to – they bond out (or else “enjoy” an extended stay in public accommodations). Then begins the time-consuming, resource-demanding and dehumanizing, and – if you want a fair trial – bankruptingly expensive process of defending yourself in court.
REQUESTING THE ARREST RECORDS
Thus when I learned from the inveterate internet activists around the world – these days with one eye always on Ferguson – that police were arresting people for their “Manner of Walking,” I immediately drafted and sent a public records request to the City Clerk and the City Attorney. I did not even wait till City Hall opened the next morning but sent them just after midnight on Sunday.
Let’s let the public armed with the facts decide if these individuals should have been arrested.
In fact that night I decided to file two public records requests. One for the arrest and incident reports – the very document that began the controversy over public records in Missouri. Several police agencies engaged in a series of games to prevent the public from obtaining the reports of the incident in which Ferguson Officer Darren Wilson shot nearly a dozen bullets at and into the unarmed body of Michael Brown after he attempted to physically detain him for his “manner of walking.”
One said the record was exempt even though no such law exempting such reports exists. Another said they had no such record because they turned the matter over to that other department.
Then, after I made a request effectively challenging the exemption claim, the first agency produced a newly created report – deliberating including only the most mundane information. Followed afterwards by the second which produced the report it said it never made but with all the useful information unlawfully redacted. They were not above making false claims for the law and untruthful statements of what records they had. The law was not going to be an obstacle to these law enforcement agencies – they were determined to prevent the public from learning what it had a right to know.
But in addition to the issue of the arrest and incident reports, I also knew that a week before the Ferguson Police Chief announced that his officers would begin wearing the generously donated body cameras. Ferguson now had at least one camera for every officer including the Chief. The purpose of such cameras is to produce videos of what the officer saw and did when encountering and engaging members of the public. If the public questioned the officer’s actions they could see what occurred for themselves. The video evidence would either back up the officer’s story and actions or the people could hold them accountable under the law and to the public which they have sworn to serve. A necessary check against abuses of authority – even more necessary as this group of officials is granted the exceptional power to use deadly force to enforce that authority even when the law requires the presumption that the person is innocent of any alleged offense.
So later that night – at about 1:30 in the morning (technically now September 8th) my time (Eastern Time – 12:30 a.m. in Missouri) – I filed two public records requests. One for the Arrest and Incident reports. Another for the videos of the officers’ body cameras. It was time to test whether those cameras were being worn, properly used, and would provide the much needed transparency in Ferguson.
Missouri law requires public records custodians to produce requested records, in routine and regular requests, “as soon as possible” (610.023.3 RSMo) While that means exactly what it says the legislature has provided a maximum time frame considered reasonable to produce such requests “as soon as possible.”
While this is not a license to wait for three days it does allow that three days is a reasonable time to respond and still meet that legal burden. If you can prove that it was “possible” to produce the record sooner you could take a case to court with the possibility of prevailing if you got a judge who was a stickler for the law. The problem is that even the strictest judges tend to view the law more loosely – even as optional or “discretionary” – when it comes to legal requirements and duties of government officials. Public officials, many presume, would never intentionally violate the law. So we tend to see that officials exercise that “discretion” as if it were an unlimited license to decide for themselves what their lawful duties require of them. “As soon as possible,” in practice, tends to become “as soon as we choose to provide it.”
A request that could not reasonably be fulfilled within three days, a request for example that is extensively broad or otherwise extremely burdensome to produce, and so necessarily entails a great deal of work to fulfill can legitimately be provided outside of that time frame. As long as the agency or official states in writing the “reasonable” basis for the delay and when it is expected to be produced, a necessary delay is lawful. But agencies and officials notorious for their contempt for the duties imposed by these public records laws are known to regularly abuse this limited discretion. Almost any request, no matter how simple or routine, is declared to require more than three days. They are making a wager that the normal requestor does not have the knowledge, the means, or the will necessary to take the matter to a court to have the law enforced and that if they do they will find that the judge assigned will side with the agents of authority rather than the authority of the law.
You may have a right to have a court enforce the law and compel production in a timely manner. But legal actions of that nature are costly, time consuming, and may take longer to adjudicate than the actual production – even when delayed – takes. So officials often toss the dice. They bet that the public will not call their bluff and thus their games will have the intended result – delay or denial. And often times delay is just as effective as an outright denial – for the record may only be useful or valuable in a particular time frame.
In this case it was clear. The City waited the maximum three day period before responding simply as a means to delay their initial response and thus their ultimate production of the records. It took four days – until Thursday September 11th – for the City to respond. (Although they read the request shortly after it was sent they did not count the first twenty-four hours as starting the clock on the three day requirement.)
Their response, however, showed clearly that they were defiantly delaying. Not just because what they claimed was untrue (as will be clearly established below); but because the same response could have been given immediately upon reading the email. Again we know the email was read from their cell phone several hours before City Hall opened its doors that Monday morning. [See EMAIL]
It was a shock reading the initial response – and I have seen nearly every game officials play to deny records across the country. Shocking, not because it took so long for them to send it; but because of the basis of their claims, in both requests, that they were unable at that time to produce the records in a timely fashion.
It would, in fact, take more than a month before they could even begin to process the request, the City Attorney claimed. October 15th to be exact. The actual production of the records could easily be delayed to some further undetermined time after that. They could not be certain.
But both of these were simple requests – neither broad nor burdensome. The requests were clearly worded and not just narrow in scope but precise in the records requested. There was an incident that resulted in two arrests at a particular time and place for a particular set of charges. The records requested are produced and stored on a computer database that is readily accessible at all times and easily searched and sorted. Nothing could be more routine in the area of public records production than these two requests.
The first of these requested the arrest reports and the incident report. [See EMAIL] Both are undeniably public records that are always open under Missouri law (but leave it to the officials and they will never hesitate to make indefensible claims that a record was exempt – as they ultimately did when they produced this – claiming that the arrest records were not allowed to be produced and could only be obtained from the District Attorney! But that is another story).
There is one case clearly identified and all they have to do is pull those records up on their computer system – we know from previous requests for their polices including the “Report Procedures” that the Police Department has a very complete software package, the ITI computer database for law enforcement (from Information Technologies, Inc.) which is capable of not only recording all of the dispatch calls (the CAD or Computer Aided Dispatch) but also entry of all their reports into the system with a Records Management system that makes it easy to search and retrieve not just individual reports but sets of reports sorted by a multiplicity of available variables. It literally only takes a few seconds to “pull up” a report.
The second requested the video for those reports and the City not only has the cameras but again a computer system that enables the videos to be uploaded, stored, and thus searched and retrieved with little or no effort. [See EMAIL]
There was no difficulty entailed in locating the arrest or incident reports. The date and time were clearly provided in my request as well as the charges.
What could cause such an unusual delay? The email by City Attorney Stephanie Karr stated it explicitly. It was, she said in no uncertain terms, the Department of Justice’s investigation into the City’s Police Department that was to blame.
While she went out of her way to state that the City openly “welcomed” and gave its highest priority to “cooperating” with the DOJ’s investigation – until the federal government released their records back to the City they could not comply with Missouri’s Sunshine Law as it pertained to public records of the Police Department.
This is what I have called here the DENIAL BY DOJ DELAY tactic. The “DOJ DELAY” for short.
On its face the claim was implausible. The Department of Justice was unlikely to have seized the original records of the Ferguson Police – much less records of an arrest that took place on a Sunday night, in September, long after they began their investigation, for a report of which the request was made, received, and read before the City even opened its doors that Monday morning.
Why would the DOJ take the originals of these records? How could they have done so within the few hours before 8 am Monday morning? I knew right away the City was lying. I had seen this game once before a few months earlier when the City of Albuquerque claimed they were not permitted by the Justice Department to release records in the shooting death of James Boyd – whose offense was camping in the foothills on the eastern outskirts of the city. When that claim was officially made it was brought to the DOJ’s attention – and quickly shot down as untrue. [See FBI Approval Not Needed For APD Video Release and the misquoted Department of Justice letter.]
Similarly the problem for Karr, a member of the Missouri Bar and thus bound by its ethical standards as well as her legal duties and liabilities as a public official, is that her statement was completely untrue.
This is the claim that Karr made about the Department of Justice investigation and Ferguson’s public records:
Please be advised that it will take longer than three (3) days to process the request. The Department of Justice is currently reviewing those same records and they will not be available for City officials to retrieve, review and copy them until sometime later. The Justice Department has not provided a date by which their review of those records will be complete.
We have welcomed the investigation by the Justice Department and cooperating with the representatives of the Department is one of our highest priorities.
Once such records are available, it will take additional time to review the record to determine if it, or portions thereof, are subject to disclosure and then to redact the records accordingly. The earliest estimate I can provide given the Justice Department’s review of the records and the work in retrieving, redacting and copying the record is October 15, 2014.
Technically a City Attorney is a public office. The official, although usually required to have a legal education, is not technically an attorney for the City – in the traditional sense of an attorney with a client. Their job is primarily to advise the City on how to comply with the law. Their ultimate interest is the public interest as opposed to the particular interests of either the agency or its officials – the Public, not the City Government or its officials, are the client.
However this line is unfortunately continuously blurred, particularly as in the case of Karr and her firm Curtis, Heinz, Garrett and O’Keefe, P.C., when a City hires a law firm or a lawyer in private practice to perform the duties of the public office. Often they are contracted, in the same document, to perform both the functions of the public official advising on how to comply with the law in an effort to ensure such compliance in the public interest as well as representing the City as their client when the City is alleged to have violated the law and thus defending the City’s actions in court. [See the City Attorney Contract and Ferguson Resolution]
This raises serious issues not only of the competence of private attorneys engaging in such a specialized practice – but also issues of inherent conflicts of interest.
The Missouri bar does, however, state unambiguously that a member may “not knowingly make a false statement of material fact or law to a third person.” (Rules of Professional Conduct, Missouri Bar, Rule 4-4.1)
Yet what is often encountered when an agency wants to unlawfully deny records is that they transfer the request to the City Attorney in an attempt to shelter everyone from legal liability.
THE CLAIM ON ITS FACE IS IMPLAUSIBLE
The first way I proved this was simply to ask the Department of Justice if it was true. Their answer proved beyond any doubt that her claim made as an official response to my public records requests was a lie. But as I will show in a moment this was only one way to prove my case.
The Department of Justice said it knew of no reason that the City could not comply with Missouri’s Sunshine laws. The claim made by Karr was that the Department of Justice was reviewing, at the very moment of my request, “those same records.”
Again we have to put aside for a moment just how implausible this claim was given that I made the request within hours of the incident and arrests, probably before they were even formally reviewed and approved by the the superior officers in the Department, and the other fact that they received and read that email before the start of business on Monday morning.
But looking beyond that obvious problem there are other immediately noticeable problems with the claim.
The City, she said, could not “retrieve, review or copy them” during the Department of Justice’s review – implying that the DOJ had seized or the City had handed over the originals.
This was not a claim of a legal prohibition – as no federal law imposes this on the city and no law authorizes the Department of Justice to create such an imposition. This was the argument that the Chief in Albuquerque made that was immediately countered by the Department of Justice.
Thus the statement logically entails that the records – the originals and any copies – were no longer in the possession of the City.
But why would the DOJ’s investigation require them to take the original records of the Police Department when copies of the records were all they needed for their review and such an imposition would render the Department unable to fulfill its duties and functions? That made no sense.
And this is known not to be the manner in which these Justice Department investigations into Police Departments are conducted. Again I have been carefully studying the case of Albuquerque which was the subject of a two year investigation that concluded in April, shortly after the James Boyd shooting, with a scathing critique of the department and conclusions that more than half of the fatal shootings there (more than most major metropolitan areas combined) were not merely unjustified but unconstitutional.
Assume however that the federal agency had taken possession of the original Ferguson records. Would the City not have kept copies for themselves to continue to function during the Justice Department investigation?
Furthermore what would prevent the City, presented with a legal request for records under their State law, if they neither had the originals nor copies, from contacting the Department of Justice when they received a request for records under the state law – and asking the DOJ to make a copy so that they could be in compliance with those laws?
Again on its face it was apparent that this was a bald-faced lie. But it gets worse.
THE DOJ DENIED THEIR INVESTIGATION PREVENTED THIS
The DOJ, Karr said, “has not provided a date by which their review of those records would be complete” and thus until then they could not even begin the process of responding to the request. Then, despite stating the Department of Justice gave no date when they would be finished, she put forth the entirely aribitrary date of October 15th, more than a month away, before they could conceiveably comply with the law’s requirements to provide the requested records.
If they had no indication of when that investigation would be completed – and as I said the Albuquerque investigation took two years and only had its results published then because they were expedited as a result of the protests and national attention that the March killing of Boyd produced – how could they put forth such a precise and specific date?
This was the City’s official response to both the request for reports and the requests for the related videos. For Karr’s emailed response to the requests to be a true statement not only the originals but any copy of either records – the reports and the videos – had to be taken from the City by the DOJ.
But again on its face there is a problem. Because these records are almost entirely maintained in a computer database – the records would never leave the City. Thus they would always be accessible to the City’s officials – even if the DOJ were looking at the particular record at the exact same time.
There is a well-known legal maxim that “Justice delayed is justice denied.” And this applies equally to the production of public records.
There is often a timely relevance to the records being requested – as well as a concomitant interest by the agency or officials in delaying the public release of that information. If the press or the public is interested in them and there is an issue of prominence related to them at that time – they are likely to contain information that could be used to criticize the agency or official. Those who believe that such information in the public’s hands will not provide a favorable view of a public agency or official will have an interest to find a way to prevent such a release – or at least delay it until they can spin the criticism away or until the critical moment, and thus the presence of critical eyes, has receded in the distance of time.
Waiting until the attention from the wider public dies down – and people have moved on to other matters – serves the personal interests of those officials. But it does not serve the public interest. Indeed this is one criticism of the recent extension of the time for the Grand Jury to return its findings in the matter of Officer Wilson. It provides a cooling off period intended, some believe, to buffer the impact of its decision.
This is specifically why Sunshine Laws have provisions for timely production. These records are not provided as a mere priviledge to the public, as many officials view the law; but as a duty to that public by their officials and agencies, expected to act solely in that public’s interest – not the particular interests of the agencies or officials therein.
These laws are tools whereby the transparency, afforded by the public’s right to know, is translatable into accountability, by the public’s ability to use the knowledge from such records to hold those public servants accountable to them and under the law.
The clear purpose – to deny by delay – of Karr’s response on behalf of the City of Ferguson is obvious on its face. Thus it circumvents the process of public oversight and accountability in order to shelter the department, its officers, and officials from that public scrutiny at a time when the eyes of the world are definitely watching.
THE RECORDS WERE ALWAYS IN THE POSSESSION OF THE CITY
While the the statement on its face can be seen as a lie, the Department of Justice’s statement established unequivocally that the official response by the City via Karr’s email was premised on a claim she knew was untrue. But even beyond this there was another avenue available to prove that the DOJ had not been given or seized the original records as is entailed necessarily in the official denial. Thus we have proof that Karr’s explicit claims that the City could not access these records for public records productions until the investigation was completed were false – and she knew that when she wrote and sent the email.
Logically the only conclusion from the claims made in Karr’s email was that the original records, as well as any copies, were currently in the possession of the Department of Justice. The mere fact that the Department of Justice might come to Ferguson and look at the originals or that they may request themselves a copy and be in the act of reviewing them would clearly not prevent, as Karr claimed, City officials from either retrieving or reviewing or copying the records. As long as either the originals or a copy were in the City’s possession – it could produce a copy to a requestor under the public records law. And as long as they could do so – the law required that they must do so. And that they must do so in a timely manner – “as soon as possible.”
So while the DOJ stated unambiguously that it “is unaware of any reason that [their] investigation would prohibit the City of Ferguson from releasing any information covered by Missouri’s Sunshine Law”; and while I did confirm with a DOJ representative that the original records had not been seized from the city as part of the investigation; there was another way I could prove that the records were still in the custody of the City, that its officials had unfettered access to them, and that the claims made by Karr on behalf of the city were untrue.
The Missouri Sunshine Law clearly establishes that the original records of the Ferguson Police Department could not be taken without a written – and thus public – record.
Missouri’s Revised Statutes, Section 610.023.2, clearly states that:
“No person shall remove original public records from the office of a public governmental body or its custodian without written permission of the designated custodian.” (emphasis added)
Thus on Friday September 19th I made a public records request for the following:
1) Any and all “written permissions” of the “designated custodian” of public records for the City and/or the Police Department transferring custody and removing original public records from the City or Police facilities since August 1st, 2014.
Just over ten minutes later (proof that they can respond, when they choose, “as soon as possible”) I received a response from Karr:
“There are no documents responsive to the request below.”
The City Clerk, Megan Asikainen, who Karr is directly assisting, is the “designated custodian” for both the City of Ferguson and its Police Department. There is no “written permission” by Asikainen to remove the original records from the Department because the original records never left the Department. Certainly it is possible, in the alternative, that it was this legal duty that was ignored. But we know from the Department of Justice that they did not take the original records.
THE FACTUAL AND LOGICAL PROOF
Thus I have obtained absolute and undeniable proof that the City, through the City Attorney, lied in order to deny the public records it was entitled to receive under Missouri’s Sunshine Law and its public records provisions. I have proved this (1) from the facial flaws of the claim by Karr itself; (2) by the direct statements of the Department of Justice contradicting her claim, and (3) by the absence of the legally required records documenting any removal of the original records from the City of Ferguson.
This is not just proof by way of evidence or absence of evidence – this is a proof by logical entailment. The conclusion that the statement by Karr was false is a logically necessary conclusion drawn simply from the known facts:
(1) THE CLAIM: The City stated the records were not available to City officials because of the Department of Justice investigation;
(2) EVIDENCE 1: The claim is facially implausible and entails the necessary conclusion that the original records are no longer in the possession of the City of Ferguson and they did not retain copies thereof;
(3) EVIDENCE 2: The Department of Justice stated there was no reason for their Investigation to prohibit or preclude the City from producing records under Missouri’s Sunshine Law.
(4) EVIDENCE 3: The Department of Justice stated they had not seized or in any way taken or obtained the original records of the City.
(5) The City did not and does not have the legally required written permission to transfer custody of original records.
While (2) renders the claim implausible but not impossible – any of the conditions in (3), (4) or (5) on their own, if true, negate the claim in (1).
THEREFORE given (2), (3), (4) AND (5) are all true, it is a NECESSARY conclusion that:
(6) CLAIM (1) is UNTRUE.
Not only does the evidence not often get any stronger than this – but a conclusion with this much certainty is rarely found when investigating public corruption. But the strength of the evidence and the necessity of the conclusion proves without any doubt that Karr’s statement was untrue.
Let me lay this out another way. If we recognize that the Department of Justice investigation into the City does not, in and of itself, prohibit the City from complying with the state’s Sunshine Law – which it does not; then the Department of Justice would have to have exclusive possession over the City’s records – both in the original records and all copies – if the City Attorney’s claims are true. Thus:
(I) IF the Department of Justice has the original and all copies of the City’s records;
(II) THEN the City cannot produce the records under a public records request.
Now if we accept that premise as true – which itself is actually problematic because even if this were the case, it would not prevent the City from obtaining a copy of the records requested from the Department of Justice in order to comply with the law – then we have to look to the next step of establishing whether the DOJ had all those records to determine the validity and veracity of Karr’s claim.
But we know that the Department of Justice DID NOT and DOES NOT have the original and all copies of the City’s records; and therefore the Department of Justice investigation cannot prevent or preclude the City from complying with Missouri’s Sunshine Laws by producing the records upon request and in a timely fashion under the law.
(III) The Department of Justice does NOT have the original and all copies of the City’s records; And so (I) is a false premise;
(IV) THEREFORE: The City CAN produce the records under a public records request.
And if they do have the records, and thus can produce them pursuant to a request, they also can as well as must produce them in the timely manner prescribed by the statutes.
If that alone were not sufficient proof, but it undeniably is, that there is a lie behind the cover-up of denying the public its right to access these records – we have a further logically entailed proof to reinforce it. A proof that on its own would also be sufficient to prove this beyond any (not just “a reasonable”) doubt. The strength of the proof will become even more significant in a moment.
(A-I) IF the City transferred possession of its original records to the Department of Justice;
(A-II) THEN the City must have a written record from the designated custodian granting permission to remove those records (originals) from their office.
(A-III) IF the City has a record;
(A-IV) THEN the City must produce it upon receipt of a public records request for it.
(A-V) THEREFORE: IF the City has not produced such a record upon receipt of a public records request for it;
(A-VI) THEN the City did NOT transfer possession of the original records to the Department of Justice.
We know for a fact that the City did not produce that record upon request, that therefore it does not have it, and thus the City never transferred possession of the originals. Of course (A-II) assumes the City followed this provision of the law – but again because we know that (A-I) is false we can assume for the sake of the argument that they did to see the logical entailment.
It has now and always has had these records at its disposal. But despite the legal duties and obligations for the City and its custodian to produce them upon request they have knowingly refused to do so by purposefully claiming to the requestor, and thus the public, a known lie about the Department of Justice’s investigation.
THE CITY ATTORNEY & CITY CLERK CONSPIRED TO DENY RECORDS
Now the law requires that each governmental agency assign a particular individual as the custodian of records. The City has formally combined the public records custodial duties of both the City Government and the Police Department under the same agency – the Office of the City Clerk.
610.023 Revised Missouri Statutes
1. Each public governmental body is to appoint a custodian who is to be responsible for the maintenance of that body’s records. The identity and the location of a public governmental body’s custodian is to be made available upon request.
The City and the Police Department have assigned those duties to the particular official – the City Clerk, Megan Asikainen – as is required by law.
The City Clerk has enlisted the assistance of the City Attorney, Stephanie Karr, in responding to requests for and producing public records.
As I mentioned previously there is significance not only in proving that the City, through these officials, lied and thus unlawfully denied public records violating the state’s Sunshine Law. But also in proving, further, that the lie – and thus the denial based on that lie – was “knowingly” made and further that in knowingly lying they were “purposefully” denying the request contrary to law.
If it were not for the above facts about the City Clerk as the duly appointed statutory custodian of records for the Police Department – with the duty to maintain those records including for the purposes of production under the Sunshine Law; then one could contend that the Police Department lied directly to Karr or to Asikainen who unwittingly and unknowingly passed on that untrue claim to Karr.
Clearly, however, Asikainen – as the legally designated custodian of the records for the Ferguson Police whose obligation is to maintain them – knew that the records were not removed by the Department of Justice and were at all times relevant in the possession of the City – and thus available to her at any time.
Thus the City of Ferguson cannot contend that it did not know this was a lie – when Karr provided the DOJ DELAY as an official response to the records requests – because the Police Department was lying to them. The City Clerk maintains the Police Department’s records and is responsible for maintaining them under the public record provisions of the Sunshine Law. She was always in possession of the records.
Perhaps one might argue that Karr herself did not “knowingly” lie because it was Asikainen who lied to her.
And there is as I have mentioned above a reason I keep stressing the word “knowingly.” Because there are particular penalties under the civil law provisions of the Sunshine laws in Missouri that provide that if an agency knowingly violates that law that a plaintiff bringing a civil action may be entitled to attorneys fees and costs. There is also a civil penalty – of up to $1,000 – that can be assessed by the Court against either the agency or the particular official. And that fine can be extended up to $5,000 if the offense is not merely “knowing” but also “purposeful.” (See 610.027.3 (knowing) and 610.026.4 (purposeful) RSMo)
The burden of proof to be met in court to establish either “knowing” or “purposeful” violation is a preponderance of the evidence. But as I just proved with not merely the known evidence but with more than one logical proof based on that evidence – the proof in this case far exceeds that burden. In fact it exceeds the higher burden of “beyond a reasonable doubt” necessary to prove a criminal offense.
What I have established here is the logical entailment of a knowing violation – and I would argue that because it is based on a knowing lie a purposeful one as well. That far exceeds the legal burden of proof. The City, and its officials – the City Clerk and the City Attorney – not only knew it was violating the law but it did so with purposeful intent to deny the public its lawful right to public records.
In addition to the above cited civil penalties – knowing violation of the law with regard to law enforcement records is also a criminal offense in Missouri. 610.115 RSMo establishes that this is a Class A Misdemeanor – which is punishable by up to one year in prison and up to a $1,000 fine.
A person who knowingly violates any provision of sections 610.100, 610.105, 610.106, or 610.120 is guilty of a class A misdemeanor.
So could Karr claim she did not know her claim was untrue and therefore did not purposefully violate the law because she got false information from the City Clerk, Megan Asikainen?
She states in her emails that she is “assisting the Custodian of Records in responding to the Sunshine Law requests including the one below.” But the requests that I made via email were sent to both the City Clerk and the City Attorney. This would be a stretch for the City Attorney to claim such innocence by ignorance. But let’s say a “sympathetic” judge were looking for any way to excuse this behavior and not take appropriate judicial action. Would that mean that because the lawyer was the official vehicle to deliver the lie, that no one could be held to account for this blatant set of lies intended to deny the public’s right to know via public records?
Well not so fast. Because there are a few more twists and turns to this story.
THE ARGOS NEWS REQUESTS
You see I was not the only one requesting the reports and videos from the September 7th “wrongful walking” charges. Mustafa Hussein, of Argos Streaming News, had also made those requests. Unlike my requests via email, Hussein – a resident in the area working on a PhD in Constitutional Law, delivered them by hand directly to the City Clerk in hard paper copies.
When I notified him of the response I received from Karr, Hussein immediately went to Ferguson City Hall where he spoke directly to Asikainen and obtained a hard paper copy response – with her signature on it in blue ink.
It contained the exact same language denying the request based on the Department of Justice investigation provided in the emails to me by Karr. [See DOCUMENT]
Thus we have both the City Attorney and the City Clerk conspiring to deny public records, through lies and deceptions that attempt to pin the blame on the Department of Justice, and thus to violate the Missouri public records laws.
And the evidence is indisputable.
But it does not just stop there. Adding fuel to the fire – and indeed strength to the already irrefutable evidence and logically entailed conclusions – is the extent to which both officials carried out this intentional deception and violated these laws.
OTHER INCIDENT REPORTS PUBLIC RECORDS PROJECT
We already have two instances of the knowing and purposeful lie being used to deny records to two independent requestors. The denial of the reports and the denial of the videos based on the DOJ DELAY claim to both myself and Mustafa Hussein. That is four counts of this offense that are applicable to at least two City officials – the City Clerk – Asikainen and the City Attorney – Karr. Both officials received my requests via email. Either Asikainen or Karr read the emails from her iPhone. And Karr responded to them. Asikainen personally received Hussein’s hard paper request and she directly responded to him with a hard paper response with her name and signature on it.
But they dug their hole much deeper than just that – if that was not bad enough – or proof enough of the extent that the City is willing to go to cover-up what is going on behind closed doors.
The very Sunday (September 7th) that I filed the first requests for the September 7th arrest and incident records and the related videos – I was also working with about twenty other individuals on a project to test the validity and veracity of the Ferguson Police Department’s claims about the Incident Report that started all this off:
The Wilson/Brown Incident Report that one Police Agency (Ferguson) initially denied existed and another (County) claimed untruthfully was exempt. The Report that both agencies then produced, after I made a request for it of the St. Louis County Police and proved to the records custodian was a public record and was not exempt, which they created two days after my request, more than a week after the Incident, intentionally withholding the key information: the narrative statement of the responding officer, whose last name coincidentally is also Wilson, to the shooting incident by Ferguson’s Officer Wilson. The Report that Ferguson the next day produced by redacting all the relevant information from the very report that they claimed did not even exist.
(For more detail on this story see St Louis County and Ferguson Police Violating Public Records Laws Regarding Michael Brown Shooting Death and No Incident Report, Then Where’s The Use of Force Report? More Violations From Ferguson)
The attorneys for the County falsely claimed that this information was not required to be in an Incident Report, as defined under the Sunshine Law’s Law Enforcement Records provision. Lt. Jeff Burk – the Commander of the Central Records Division – and thus official custodian, said they claimed the law only required three items of information: the date, time, and location of the incident. But the statute he cited, 610.100.1(4) clearly states that there are at least five components to an Incident Report as defined therein. And the fifth is a broad and fairly open ended category that would contain all of the other routine elements of such a report. It states that there should be a statement of the “immediate facts and circumstances surrounding the initial report of a crime or incident.” This would include far more than just the date, time, and location provided and is the clause that covers the traditional narrative statement given by the responding officer as how he became involved, what he saw when he arrived, and what he did at the scene of the incident – not to mention who that officer was.
Immediately following the release of this “report” by the County Police, Ferguson – produced a report as well. This clearly conflicted with the position they stated publicly from the start that there was no such report from their agency. Even then they could not remain consistent as to why no such report existed. At one time they claimed it was because they turned the incident over to the County Police; while in other statements it was because it was being investigated by the District Attorney – produced a report as well.
In this case it turned out that their report was created – but never finalized – at the time of the incident. There was a report when they denied formally that it existed. But following the lead of the County Police and their limited view of what is contained in an Incident Report the City redacted all of the key information – leaving little more than the three categories of date, time, and location.
The Redactions, once again, were unlawful. For not only did the above cited statute define such a report as containing the complete information but the Department’s own policies required a narrative statement made by the officer. [SEE POLICY] And while that cited statutory language establishes things that must be given to the public – it does not exclude any other part of the report from being provided to the public. It creates no exemptions under the law that can be relied upon to redact the information that Ferguson removed from the public’s copy of the Report. Again what we are seeing in all of this is a clear pattern and practice of the Police and City officials violating the Sunshine Law by failing to provide public records that have been lawfully requested. And I am preparing to bring this claim to court in Missouri to address that violation of the public records law. (See PINAC Preparing to Sue over Public Records Violations in Ferguson Case)
So again we have a large and growing body of evidence that the City and Police officials have been actively, knowingly, and purposefully covering-up for the actions of Officer Wilson and others in the Department and covering-over the facts and evidence by refusing to fully and faithfully comply with the public records law. And now that the City Attorney and City Clerk played their latest card – denying records by the false DOJ DELAY claim – we have indisputable proof of this allegation.
This group of individuals has previously volunteered and participated in the public records projects that I coordinated pertaining to the Ferguson issues. Many of them had never previously heard of the Sunshine Law and most never made a public records request before. In addition to seeking to obtain the records, part of the project was an effort intended to teach and learn by actually doing. Some of these individuals had previously participated in the “global” request that followed my request for the Incident Report for the County police. Over 160 people participated in that effort. Several had also participated in a group of about 50 who made other individually assigned requests previously for records of both the County and City Police Departments for a particular day’s Incident Log going back to July 1st.
This time they were each assigned a different individual arrest/incident from those logs from Ferguson that we obtained. [SEE DOCUMENT] They emailed their requests to Asikainen and Karr. The reports sought were independent of and unrelated to the Wilson/Brown incident although some were intentionally chosen because of the nature of the incident or the fact that Wilson was the reporting officer. The purpose was to compare and contrast these other reports, and thus the normal practice of the Department and of Officer Wilson, to that produced for the Wilson/Brown incident. Most of the requests had been received between Monday and Wednesday of that week.
And so again what we documented was that the City and its officials were intentionally waiting till the three day window had expired and the requestors thus began to receive the same response from Karr – the DOJ DELAY – by Friday of that week.
So it was clear that the denials were not targeted just at my requests or the particular records pertaining to the September 7th arrests and incident. All incident and arrest reports requested by any person were being denied based on this lie.
Yet the lies, deception, and cover-up did not stop then and there.
HUFFINGTON POST REQUEST
On Tuesday of the following week, September 16th, I received a tweet from Matt Sledge, one of the two journalists who had been arrested by militarily clad and armed police inside a McDonalds during the height of the protests. Sledge, who writes for the Huffington Post, had requested an entirely unrelated set of records – records for citizen complaints of officer misconduct. I don’t know what day Sledge made the request – I would venture a guess that it was three days prior and not have a problem placing a wager on that – but by the 16th he too had been the recipient of the DOJ DELAY as a means to deny access to public records. [SEE TWEET]
So we now have evidence of this lie and proof of the cover-up of police records by the denial via delay tactic, falsely blaming the Department of Justice for this when the City officials knew what they were doing, over a two week period and for more than twenty requests and requestors on a wide range of records.
Rarely in any case does the evidence add up to indisputable proof. And while in the case of Ferguson – until last week – one could confidently alleged that there was a cover-up going on by the unlawful denials of public records. One would still have an uphill battle in Court, even if the Court of Public Opinion was convinced, to prove that this was the result of knowing deceptions through purposeful lies by City officials. An unsympathetic judge, of which there are many – particularly given that most were former prosecuting attorneys with much the same contempt for the Sunshine Law as those currently holding non-judicial public offices – could find a number of ways to excuse the inexcusable and still have cover for his or her actions – even if the public did not buy into it.
Now – with the extensive use of the DOJ DENIAL – that story has changed dramatically. No honest judge can ignore the logical entailment of the conclusions from the known facts – that the claims made by both the City Clerk and the City Attorney were known to them to be false. Their actions – documented in both email and hard paper evidence – necessarily entail that these officials knew what they were doing (lying) and with purposeful intent (denying records) violated the Missouri Sunshine Law. And they did it at least twenty times – which means there are at least twenty potential criminal charges to be filed.
NOTE: At the time this article was preparing to be published I received correspondence via twitter from two other individuals who have been using the pubic records law to investigate the Ferguson Police Department. They too have informed me that they have been given this same DOJ DENIAL response for a number of other unrelated records.
The story does not end here however. The City, via City Attorney Karr, has effectively admitted that it was lying when she sent out the DOJ DELAY responses, thus unlawfully using that to deny full and faithful compliance with the public records law.
The admission came when, the day after I sent Karr a direct quote from the Department of Justice contradicting her original claims, she emailed me the Incident Report from the September 7th requests.
The very record she stated on September 11th was being reviewed by the Justice Department, and was thus unavailable to her or the City Clerk for retrieval, review or copying in order to produce the records requested under the state Sunshine Law. The record she said would not be available until at least October 15th.
Immediately upon proof that the Department of Justice countered her claim, the City via Karr, produced that record. [SEE EMAIL] Between the request on the 7th and the production on the 18th the record was being unlawfully denied based on a claim that blamed the Department of Justice for the delay that both Karr and Asikanen knew to be false.
Although this request has now been fulfilled Karr has failed to produce the records for any of the other requests and requestors and has remained silent despite emails inquiring into the status of those requests nearly a month later.
But having been caught in one lie only seems to have made Karr and the City even more defiant in their refusal to fully and faithfully comply with the Sunshine Law. Any obstacle they can think of they are putting in front of production. Their tactics are meant to discourage, delay, or outright deny the requests and dare private Citizens to find an attorney, cover the costs of litigation, and take them to court to enforce the law and hold them accountable. And they know full well that engaging in these tactics usually produces their desired outcome. They either outright deny or effectively deny by delay the request and they discourage requesters from making further attempts to obtain records. And those requesters usually don’t have the will or the means to take on the government in court. Indeed even though the law is designed to encourage lawyers to take such cases, without the public having to front what are often enormous expenses, by provisions for the award of attorneys fees and costs, it is extremely hard to find an attorney willing to sue a government agency or public official.
Because this article is already so long I have decided to end it here. But the story gets worse for Karr and the City. I will follow this up shortly with another article detailing the refusals to produce all of these requested records and the punitive actions taken by Karr in the aftermath of having been called out and exposed in her lie that are only further placing obstacles in the way of the public’s right to know via unfettered access to public records.
In the meantime, however, I have a CALL TO ACTION for all who have read this and share a concern for the knowing violations of the law by Karr, Asikainen, and the City of Ferguson and the Ferguson Police Department.
Let him know that you have seen the evidence and that he should indict and charge those officials – particularly City Attorney Stephanie Karr and City Clerk Megan Asikainen – for knowingly violating the Sunshine Law by falsely claiming the Department of Justice precluded them from fulfilling public records requests during its investigation. Cite the statute that establishes this as a crime: 610.115.
Anyone who is concerned that the actions of the City and these City Officials constitute evidence that there is a problem in Ferguson with their refusal to comply with Missouri laws designed to ensure transparency and thereby accountability to the public and under the law – or has any other issue of concern that ought to be incorporated into the Department of Justice investigation …
The Department of Justice officials conducting the Ferguson investigation by emailing email@example.com
In the end the answer to the question posed in the Salon article last week and referenced at the top of this article – “Is there a cover-up going on in Ferguson and are they unlawfully withholding public records?” – is crystal clear.
The answer is absolutely and unequivocally – YES!
DETAILED DOCUMENTARY ACCOUNTING AND EVIDENCE OF THE KNOWING AND PURPOSEFUL DENIAL OF RECORDS THROUGH THE DOJ DENIAL
REQUESTS & DENIALS
THE DOJ DELAY RESPONSE – KARR EMAIL
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PUBLIC RECORDS REQUEST 9-8(1): Manner of Walking Incident Reports
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PUBLIC RECORDS REQUEST 9-8(2): Manner of Walking Arrest Videos
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RECEIPT FOR OPENING/READING 9-8 REQUEST EMAILS
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HUSSEIN/ARGOS NEWS: ASIKAINEN DENIAL
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INCIDENT REPORTS PROJECT: REQUEST & KARR DENIAL
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SLEDGE/HUFFINGTON POST: ASIKAINEN DENIAL
PRODUCTION & COMMUNCATIONS ON 9-8(1) REQUEST
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POLICE NIGHTLY DESCEND IN FORCE ON PROTESTS
POLICE REGULARLY BLOCK STREETS BUT THREATEN ARREST FOR BLOCKING TRAFFIC
POLICE ABSURDLY REQUIRE CONSTANT MOVEMENT OR BE ARRESTED
POLICE DEMAND REPORTER IN PRIVATE PARKING LOT STAND “ON THE SIDEWALK”
FERGUSON POLICE POLICY ON REPORT PROCEDURES
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CITY ATTORNEY (KARR) CONTRACT & RESOLUTION
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FERGUSON LOG OF INCIDENTS SINCE 7/1
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DEPARTMENT OF JUSTICE LETTER TO ALBUQUERQUE RE: RELEASE OF RECORDS
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