In August I had to file suit against the Fashion District BID to compel them to comply with the California Public Records Act. One of the main issues in the suit is a bunch of various really implausible exemption claims by FDBID executive director Rena Leddy. Now, it’s well understood that the burden of proving that an exemption claim allows a record to be withheld lies entirely on the withholding agency. The CPRA says explicitly at §6255(a) that:
The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.
At the time that Leddy denied my requests I asked her to justify her decisions to withhold but she refused to do so even though the law clearly requires it.1 But it sure is hard to dispute the BID’s exemption claims if no one knows what the heck they’re basing them on and they won’t explain. My lawyer asked Carol Humiston, the world’s angriest CPRA lawyer, if she’d mind listing all the withheld records and explaining why the BID withheld them.2 You can read his email here.
But Humiston, who’s not only the angriest but also pretty much tied for first place as the most obstructionist,3 wasn’t having it. Here’s what she had to say for herself in this email here:
I have considered your request for a “Vaughn Index,” which of course in [sic] a Federal procedure, and I do not believe it is either necessary or appropriate at this time. I know of nothing that requires the BID to produce such an index. Once you have filed your brief in support of the Writ, the Court and I will have a better understanding of the issues you are raising and the appropriate course to take.
So we filed a motion asking the judge to compel the BID to produce a list of all withheld emails. This motion will be heard on November 16, 2018 at the trial setting conference at the Stanley Mosk Courthouse in Department 86 before the Honorable Amy Hogue. There’s a transcription of the motion after the break.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL PRODUCTION OF LIST OF WITHHELD DOUMENTS
KARL OLSON [SBN 104760]
Cannata, O’Toole, Fickes & Olson, LLP
100 Pine Street, Ste 350
San Francisco, CA 94111
ABENICIO CISNEROS [SBN 302765]
2443 Fillmore St. #380-7379
San Francisco, CA 94115
Attorneys for Petitioner/Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES CIVIL – UNLIMITED JURISDICTION
DOWNTOWN LOS ANGELES PROPERTY OWNERS ASSOCIATION, Respondent.
Case No.: BS174792
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL PRODUCTION OF LIST OF
Motion Date: November 16, 2018
Time: 9:30 a.m.
Judge: Hon. Amy D. Hogue
This motion seeks an order in this California Public Records Act (“PRA”) case requiring Defendant/Respondent Downtown Los Angeles Property Owners Association (a.k.a. “Fashion District BID,” hereafter “Respondent” or “the BID”) to provide a list of withheld and/or redacted records. Unless the BID is compelled to produce a list of withheld records, Petitioner MK will be required to brief this case, and the Court will have to decide it, without knowing what documents (or even how many documents) the BID has withheld. Under such a regime, Petitioner would have difficulty meaningfully contesting the BID’s claim that each withheld record was lawfully withheld subject to exemption. The BID should therefore be compelled to provide such a list. See, e.g., State Bd. Of Equalization v. Superior Court (1992) 10 Cal. App. 4th 1177, 1993 [providing list of requested and withheld documents is “consistent with the language and spirit of the Public Records Act.”]; see also ACLU of N. Cal .v. Superior Court (2011) 202 Cal. App. 4th 55, 83 [“Because the agency has full knowledge of the contents of withheld records and the requestor has only the agency’s affidavits and descriptions of the documents, its affidavits must be specific enough to give the requestor “a meaningful opportunity to contest” the withholding of the documents and the court to determine whether the exemption applies.”]
II. STATEMENT OF FACTS
Petitioner filed this case to secure Defendant/Respondent’s compliance with three Public Records Act requests for records. In response to three of the four requested items, the BID indicated–at times vaguely–that it withheld responsive records under Cal. Gov. Code § 6255(a), citing to the so-called “deliberative process privilege.” (Declaration of MK filed herewith ¶ 3 (hereafter “MK Decl.”).) Each time Respondent claimed exemptions, Petitioner requested additional information as to how specifically the cited exemption applied, but to no avail. (MK Decl. ¶ 4.) Further, after filing suit, Petitioner requested that Respondent provide a list of withheld and/or redacted documents; Respondent declined, and the parties met and conferred to no avail. (Declaration of Abenicio Cisneros filed herewith ¶¶ 2-5 (hereafter “Cisneros Decl.”.) The requests are discussed in detail below.
Request #1 – Communication with the South Park Business Improvement District and the Downtown Los Angeles Neighborhood Council.
Petitioner requested, in Request #1, Item 1, all emails between Respondent and two organizations, the South Park Business Improvement District and the Downtown Los Angeles Neighborhood Council, during the period of January 1, 2016, through May 15, 2017. (MK Decl. Ex. A.) Respondent produced a number of records, but did not indicate whether any records were withheld subject to exemption. (MK Decl. ¶ 5.) When Petitioner inquired as to whether records were withheld, Respondent declined to confirm, stating only, “[a]ll non-exempt records have been submitted. Any exemptions are due to deliberative process.” (MK Decl. ¶ 6, Ex. B.) Despite Petitioner’s repeated attempts to confirm whether records were actually withheld, Respondent declined to confirm. (MK Decl. ¶ 7 and Ex. C.)
Request #2 – Communications with Urban Place Consulting (UPC).
Petitioner requested, in Request #2, all emails between Respondent (excluding executive director Rena Leddy) and UPC from January 1, 2017, through the date of compliance with the request. (MK Decl. Ex. A.) Initially, the BID stated that it determined the request “seeks some records which are exempt from disclosure as deliberative process” but that it would produce nonexempt records. (MK Decl. ¶ 8, Ex. D.) Petitioner requested additional information as to why the privilege applied, but Respondent did not provide additional information. (MK Decl. ¶ 9, Ex. E.) Finally, Respondent informed Petitioner that it was withholding all responsive records subject to the deliberative process privilege. (MK Decl. ¶ 10, Ex. F.) Petitioner made an additional attempt to obtain further clarification, but Respondent continued to refuse to provide additional information. (MK Decl. ¶ 11, Ex. G.)
Request #3 – Board Member Linda Becker’s emails.
Petitioner requested, in Request #3, all 2017 emails in the possession of BID Board Member Linda Becker relating to the operation of the BID. (MK Decl. Ex. A.) Initially, Respondent claimed responsive records did not exist. (MK Decl. ¶ 12, Ex. H.) When Petitioner presented Respondent with evidence indicating otherwise, Respondent stated that it determined Petitioner’s request “seeks records exempt from disclosure pursuant to the deliberative process privilege.” (MK Decl. ¶ 13, Ex. I.) Petitioner requested additional information as to why the privilege applied, but Respondent did not provide further information. (MK Decl. ¶ 14, Ex. J.)
Notably, the “deliberative process” privilege claimed by respondent is far from absolute. “’Not every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process spring into existence. The burden is on the [one claiming the privilege to establish the conditions for creation of the privilege.’” Citizens for Open Government v. City of Lodi (2012) 205 Cal. App. 4th 296, 306-07 [rejecting assertion that deliberative process privilege applied]. In light of the conditional nature of the “deliberative process privilege,” the need for a list of withheld documents showing who communicated about what, and when, is magnified in order to shed light on whether any documents can be withheld on that basis.
Petitioner requested a list of withheld and redacted documents after filing suit; Respondent declined to provide such a list.
To streamline this litigation and minimize its costs to the parties, Petitioner, through Counsel, has made a good faith effort to obtain a list of withheld documents from Respondent without the necessity of obtaining a court order. (Cisneros Decl. ¶¶ 2-5). Petitioner’s counsel first requested the list via email to Respondent’s counsel on September 23, 2018. (Cisneros Decl. ¶ 2.) In that email, Petitioner’s counsel cited applicable case law and informed Respondent the list was required to properly litigate this matter. (Cisneros Decl. Ex. A). After Petitioner sent two followup emails, Respondent replied via email on October 5, 2018, informing Petitioner that it would not provide the list as it believed it was neither “necessary” nor “appropriate” at the present time. (Cisneros Decl.¶ 3-4; Cisneros Decl. Ex. B.) The parties met and conferred on the matter via telephone on October 10, 2018, with Respondent reiterating that it would not provide the list without a judicial order. (Cisneros Decl. ¶ 5.)
III. ARGUMENT: DEFENDANT/RESPONDENT SHOULD BE REQUIRED TO PRODUCE A LIST OF WITHHELD AND REDACTED DOCUMENTS WHICH COMPLIES WITH THE REQUIREMENTS OF A “VAUGHN INDEX.”
In order that Petitioner may have fair opportunity to litigate this matter, and that the court may be sufficiently informed to adjudicate it, the court should order Respondent to prepare a list of withheld and redacted documents. Such a list is known in federal open records law as a “Vaughn index.” Under federal precedent, the Vaughn index is a log which (1) identifies each document withheld; (2) states the statutory exemption claimed; and (3) explains how disclosure would damage the interests protected by the claimed exemption. See Citizens Comm’n on Human Rights v. FDA, 45 F.3d 1325, 1326 n.1 (9th Cir. 1995). The description of the withheld material should be sufficiently specific to permit a reasoned judgment as to whether the material is actually exempt under the law. See Founding Church of Scientology v. Bell, 603 F. 2d 945, 949 (D. C. Cir. 1979).
The California Court of Appeal has held that preparation of a list of withheld and redacted documents is “consistent with the language and spirit of the Public Records Act.” State Bd. of Equalization v. Superior Court, supra, 10 Cal.App.4th at p. 1193. The Court of Appeal has further stated that, “[b]ecause the agency has full knowledge of the contents of the withheld records and the requester has only the agency’s affidavits and descriptions of the documents, its affidavits must be specific enough to give the requester a meaningful opportunity to contest the withholdings of the documents and the court to determine whether the exemption applies.” ACLU of N. Cal. v. Superior Court, supra, 202 Cal. App. 4th at p. 83.
Here, Respondent has cited alleged exemptions to withhold an unknown number of records. Petitioner has made repeated attempts to gain clarity as to how many records Respondent is withholding and as to how the cited exemptions might apply to the withheld records. Despite those attempts, Respondent refuses to voluntarily provide the information which Petitioner requires in order to have a meaningful opportunity to contest the withholdings. As Respondent has refused to provide the required information voluntarily in response to Petitioner’s requests, it is appropriate that the court should order Respondent to do so. Otherwise, the parties would be briefing, and the court would be deciding, this case in the dark.
For the foregoing reasons, Petitioner respectfully requests that the Court GRANT this motion. The Court should order Defendant/Respondent to produce a list of withheld and redacted documents which conforms with the requirements of a Vaughn index within fourteen (14) days.
Dated: October 18, 2018
Attorney for Petitioner/Plaintiff
Image of Carol Humiston is ©2018 MichaelKohlhaas.Org and is kinda sorta something de this one over here.
- When a law says that someone “shall” do something, it’s not optional. However, in practice, this section of the CPRA does seem to be optional in the sense that no agencies will actually tell anyone what their justifications are and for whatever reason courts won’t enforce this right other than by ordering agencies to explain, which they seem not always to do. In other words it’s a requirement but there are no consequences outside a courtroom for not complying. Sadly, this is true of any number of requirements imposed by the CPRA.
- Such an undertaking is called a privilege log or sometimes a Vaughn Index by analogy with a Federal procedure to do with the Freedom of Information Act.
- Along with, of course, self-proclaimed Hollywood superlawyer Jeffrey Charles Briggs.