In the last few years a number of public officials have been criticized extensively1 for using privately controlled email accounts to conduct public business. Hillary Clinton was famously investigated by the FBI for this. And just yesterday it was revealed that Ivanka Trump has done the same thing. Thus we were fascinated to learn recently that CD13’s own Mitch O’Farrell also uses a privately owned Gmail account, firstname.lastname@example.org, to conduct City business and, doubtless, to evade scrutiny.
This was discovered recently by our friends at the Hollywood Sunshine Coalition, who passed us the material on which this post is based. And this revelation settles a big mystery. As you know, I personally have obtained many thousands of pages of emails from CD13 on any number of subjects, and there are never any at all from O’Farrell himself. Previously I had thought that either Dan Halden, who handled most of my requests, was purposely omitting emails from his boss or else that O’Farrell was communicating in ways that didn’t leave traces, like phone calls. Now it seems likely that he has been evading scrutiny by using this secret email address.
The HSC has been making public records act requests for emails from this account. There are two ways to approach this. The first, and so far the only successful, way is to find correspondents who are subject to the CPRA and ask them for emails involving O’Farrell’s secret email address. This led to request number 18-2976 on the City’s newish CPRA platform, which is called Nextrequest.2 For some reason the City has made the request page available for public view but not the records provided. They turned over 21 highly duplicative PDF pages of emails between O’Farrell and various officers and, interestingly, some members of the Hollywood Studio District Neighborhood Council. You can read these 21 pages here. Apparently the HSC has other such requests pending.
But the HSC’s other strategy has turned to be much more interesting, even though it hasn’t gotten them any actual records yet. It’s based on last year’s absolutely monumental California Supreme Court opinion in City of San Jose v. Superior Court, which found that the emails and text messages of public officials are subject to the CPRA even if they are held in private accounts.
Based on this principle, on November 7 the HSC sent this CPRA request to CD13, asking for all emails held in the account from July 1, 2013 through the present.3 And yesterday, probably unsurprisingly, O’Farrell’s chief of staff, Jeanne Min, replied with the usual mush-mouthed nonsense, the TL;DR of which is “fuck you no records.” The HSC responded pretty scathingly, and then responded again for good measure. They’ve promised to keep me in the loop with respect to further developments. After the break you can find transcriptions of most of these emails along with some technical discussion of the CPRA issues implicated.
Meanwhile I’m told by those who ought to know that the HSC will not drop this request and that they are prepared to litigate if necessary. We’ll see what happens, I guess. Whatever happens, it’s clear that the public interest is very much against allowing Mitch O’Farrell to get away with maintaining this secret side channel for communicating with his favored few and with secreting emails away from public scrutiny and the City’s record retention policies.
First of all, here’s HSC’s initial request:
From: Hollywood Sunshine <email@example.com>
To: firstname.lastname@example.org, email@example.com, firstname.lastname@example.org
Subject: PRA request
Date: Nov 7 at 8:47 PM
Good evening Councilmember O’Farrell,
On behalf of the Hollywood Sunshine Coalition I am making this request under the public records act for copies of all emails to and from your account at email@example.com from July 1, 2013 onward to the present day. It’s clear from our work that you use this account to conduct public business. As I am sure you are aware the California Supreme Court found last year in City of San Jose that the private email accounts of public officials such as yourself used to conduct public business are subject to disclosure under the law.
Since this is a gmail account it will be very easy for you to export these emails in mbox format using Google Takeout, and it is this form that we will need to have these emails.
Thank you for your anticipated compliance with this fundamental right granted to we the people by the Constitution of the great state of California.
And Jeanne Min’s response from yesterday:
From: Jeanne Min <firstname.lastname@example.org>
Subject: Re: PRA request
Date: Nov 19 at 12:37 PM
To Hollywood Sunshine Coalition:
This is in response to your California Public Records Act (CPRA) request of November 7, 2018, in which you ask for copies of all emails to and from email@example.com from July 1, 2013 to the present.
You are correct that under the City of San Jose case we are required to produce emails related to City business—not personal emails—even though they were sent or received using a private email account; and our Office is, of course, prepared to do so.
However, your current CPRA request is not sufficiently focused. Satisfying your current request would require us to review an enormous volume of emails, cull many, if not, most of the emails because they are personal and not related to City-business, review the still large volume of remaining emails for exemptions, and then make any redactions as appropriate. Our Office is not required to fulfill the request under the balancing test in Government Code section 6255 because the public interest in producing the records—given the work required to satisfy the overly broad request—is clearly outweighed by the public interest in not producing the records.
We are prepared to work with you to focus your request into something manageable. For example, if you provided specific search terms and a time frame we could use that to cull the volume of documents while retaining the smaller number of documents pertaining to City-related business that you are interested in.
Thank you for your consideration.
And you can read HSC’s two responses (one and two), I’m not going to transcribe them here. Instead I’ll summarize their points. First of all, Min uses a common tactic among City agencies. The City of Los Angeles when trying to avoid providing records will regularly accuse requesters of not making a focused request and then ask them to narrow it down. The problem with this tactic is that in the context of the CPRA, focused doesn’t mean narrow, it means describing records so that they can be identified. There is nothing unfocused about HSC’s request.
Next, Min cites the infamous §6255(a) to justify her dubious claim that the City doesn’t have to provide all these emails because it would be too much work because there are too many of them, and avoiding work is in the public interest. In order to interpret this, recall that §6255(a) allows public agencies to withhold records if “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.”
And sometimes this works to withhold records if too many are requested. Like e.g. if someone asked CD13 for all emails with the word “the” in them then first, there’s no particular public interest in reading such a collection. Also there’s an easily defended public interest in CD13 not having to sift through every single email they ever sent in order to redact them or whatever. And obviously, since there’s a public interest in not producing and no public interest in producing, §6255(a) would allow them not to produce.
But the law requires a fact-based weighing of the two interests, and HSC’s point is well-taken. The public interest in understanding what Mitch O’Farrell does with this secret account, who he talks to, what they talk about, and so on, is essentially cosmic. There’s no upper bound on the public interest. The frenzied news coverage of Ivanka Trump’s and Hillary Clinton’s private accounts prove that. Mitch O’Farrell is not really that different. So when Min says essentially that they don’t have to produce the emails because it would be too much work but she makes this claim without even a pretense of considering the public interest in seeing all these emails she is violating the law.
And her call for “specific search terms” is another common dodge used by the City. How in the world is anyone supposed to know what Mitch O’Farrell is talking about with this email account? And if we don’t know what he’s talking about how can we choose search terms? The very point of this request is to find out what he uses the account for, not like with more ordinary CPRA requests where we want to find out e.g. what some staffers think about RV parking restrictions or whatever. Those kind of requests assume that all correspondence is in the normal City email accounts so that it makes sense to narrow them by keywords.
There are other good arguments in HSC’s responses and I recommend that you read them. As I said, I’m told that the HSC is willing to take this all the way through the courts if CD13 doesn’t comply. But of course it would be better for all of us if CD13 would just hand over the emails because we really need to know what’s going on in that account!
Meanwhile, though, I at least hope this unexpected exposure at least makes Mitch O’Farrell rethink his communication strategy. I don’t understand how it’s worth it to him to risk public shame just so he doesn’t have to release his emails. Anyway, stay tuned for the rest of the story!
Image of Mitch O’Farrell is ©2018 MichaelKohlhaas.org and you might be interested in this little MOF here.
- That’s an understatement.
- The City’s ongoing migration to this web-based platform is beginning to revolutionize the process of making requests for public records from the City of Los Angeles. For now only a few City departments participate, but the ones that do seem to provide records very quickly and thoroughly. And one of the participating departments is the LAPD! I really apologize for not having updated my guide to CPRA requests in Los Angeles to reflect this revolutionary development, but I just have not had the time. It’s right there on my list of things to do, though, so clearly I’ll get to it at some point!
- Mitch O’Farrell began his first term as CD13 repster on that dark, dark day.