City Attorney Says DNA Lab Memo Is Exempt from Public Records Act

Thumbnail image for rsz_rockne_harmon.jpg
Rockne Harmon co-authored a controversial internal memo on crime lab problems
We reported Tuesday that City Attorney Dennis Herrera's office, contrary to assertions made at a public debate last week by District Attorney George Gascón, had not provided an opinion as to whether a controversial internal memo on problems at the city's police DNA lab should be released to the public.

Well, in 24 hours -- or less -- a lot can change.

Herrera spokesman Jack Song said yesterday that his office requested and reviewed the memo on Tuesday, the same day our story was published. Lawyers who reviewed it are of the opinion that it would be exempt from disclosure under the California Public Records Act, he said.

"Yesterday, after your article ran, our office approached the DA's office and said, 'Let us look at the memo,'" Song told SF Weekly. "We looked at it and determined that it is part of the attorney work product [exemption]."

Under state law governing the release of public records, a "work product" exemption exists for "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories."

The opinion of the city attorney's office on the DNA lab memo applies only to public-records requests, Song noted, and not to criminal cases. In the latter, defense lawyers could still be entitled to the document as evidence in their clients' cases.

The opinion from the city attorney's office was the latest twist in the slowly unfurling saga of the memo, which was authored by renowned DNA expert and veteran prosecutor Rockne Harmon in 2010. Harmon has said he believes the document, which highlights shortcomings in the SFPD crime lab's DNA-testing procedures, is "germane to future legal issues" and should be released to defense lawyers.

However, the DA's office has gone to great lengths to keep the document hidden, going so far as to initially claim it did not exist. This assertion was made despite the fact that the memo's co-author was Braden Woods, chief of the DA's criminal division, according to Harmon.

After the memo's disclosure became an issue in the DA's race this month, Gascón publicly acknowledged the memo's existence for the first time but claimed that his office was under no obligation to release it to either criminal defendants or the public. At a large debate sponsored by the Bar Association of San Francisco last week, he said the city attorney supported this stance.

"We went one additional step, and had a discussion with the city attorney," Gascón said. "The city attorney has also reviewed this and has opined that this is work product."

On Monday, however, Song said the city attorney's office had not reviewed the memo. The document was not given to deputy city attorneys until Tuesday, almost a week after Gascón's comments, according to Song.

DA spokesperson Erica Derryck issued the following statement in response to questions about Gascón's assertions last week: "The initial determination made by the City Attorney's Office that the work product in question is in fact privileged stands even after specific review and is therefore is entirely consistent with the general guidance previously sought and provided."

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