Category Archives: California State Government

In September 2018 — After The Release Of That Damning UC Berkeley Law Report On Nefarious BID Activity — Suzanne Holley Of The Nefariously Active Downtown Center BID Got In Touch With Assemblymember Miguel Santiago’s Office — And Was All Like Obviously This Report Is Wrong — And Biased — And Stupid — And Puerile — And Delusional — But Nevertheless We Are Worried That Some Unhinged Legislator May Try To Enact Legislation Based On It — Therefore Can Your Boss Commit To Helping Us Avoid This Fate — And The Staff Of Miguel Santiago — Who Never Met A Zillionaire Whose Interests He Wouldn’t Bootlickingly Pander To — Was All Like “Sure BIDdies! We Will Protect You From Any Potential Legislation!”

Perhaps you recall that in 2018 a group of dedicated and accomplished students at the UC Berkeley Law School’s Policy Advocacy Clinic released a blockbuster report on the criminalization of homelessness by business improvement districts in California, a copy of which can be obtained here. You should definitely read this. It’s one of the indispensable texts of contemporary radical BIDdology.

One of the report’s major points is that it is probably illegal under existing state law for BIDs, which are publicly funded entities, to use those public funds for lobbying for anti-homeless legislation. And, the report goes on to say, if it’s not illegal now it certainly ought to be, so they call for legislation to regulate BIDs with respect to advocacy.

As you might expect from a report from an institution at the level of UC Berkeley, the arguments are powerful, convincing, and intensely well-supported by extensive evidence1 and if our local BIDdies had or have any brains at all, or at least any of that sentience-independent primordial reptilian survival sense on which rich dumb mean people rely so heavily, the irrefutable arguments in this report would have, ought to have, made them extremely nervous.

Of course BIDs, like the zillionaires they serve, don’t look to arguments and their refutation to protect their survival, preferring instead to guard themselves with the weaponized raw political power that they’ve gathered around themselves like armor. And that this is an accurate picture is revealed by some recently obtained emails2 between Suzanne Holley of the Downtown Center BID and the staff of Downtown Los Angeles Assemblymember Miguel Santiago.

The BIDdies were worried that legislators might actually take the report’s recommendations seriously and start trying to rein them in with laws, so they wrote to Santiago asking for protection from any potential legislation inspired by the report, even though none had yet been introduced. But irrespective of that Santiago, long-time asshole buddy of our Downtown BIDS3 or at least his staff, was all over that. Yes, they said, yes, yes, yes, BIDdies! We will save you from any future legislation!
Continue reading In September 2018 — After The Release Of That Damning UC Berkeley Law Report On Nefarious BID Activity — Suzanne Holley Of The Nefariously Active Downtown Center BID Got In Touch With Assemblymember Miguel Santiago’s Office — And Was All Like Obviously This Report Is Wrong — And Biased — And Stupid — And Puerile — And Delusional — But Nevertheless We Are Worried That Some Unhinged Legislator May Try To Enact Legislation Based On It — Therefore Can Your Boss Commit To Helping Us Avoid This Fate — And The Staff Of Miguel Santiago — Who Never Met A Zillionaire Whose Interests He Wouldn’t Bootlickingly Pander To — Was All Like “Sure BIDdies! We Will Protect You From Any Potential Legislation!”

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AB1819 Passes Assembly — Now On To Senate — A Tiny But Essential Improvement To The California Public Records Act — Will Require Agencies To Allow Requesters To Copy Records At No Charge — Using Their Own Equipment — Includes Electronic Files — Take That, Department Of Alcoholic Freaking Beverage Control!

Assembly Bill 1819, which would require agencies to allow requesters to copy records using their own equipment at no charge, was unanimously passed by the Assembly yesterday and now it’s on to the Senate. As I wrote in March when the bill was introduced, most agencies already do this for paper records, although there are some which, in their frenzied desire to obstruct oversight by the very citizens they were created to serve, do not.

Most notable among these in my experience is the Department of Alcoholic Beverage Control which, in addition to being plagued by unchecked corruption, is also imbued with the kind of paranoiac institutional culture that enables heavily armed power junkies like Special Agent In Charge Gerry Sanchez of the Los Angeles Metro Office to feed their need to control by forbidding requesters to take photographs of records during the inspection process.

As amended the bill will also require local agencies to allow copying of electronic records using the requester’s own equipment unless to do so “would result in…[u]nauthorized access to the agency’s computer systems or secured networks by using software or any other technology capable of accessing, altering, or compromising the agency’s electronic records.”

This clause is much more consequential for my own work, as many, many, many business improvement districts, mostly under the baleful influence of Carol Humiston, the world’s angriest CPRA attorney, refuse to allow me to copy electronic records during inspection unless I pay them outrageous fees for expensive storage media.

Humiston designed this policy explicitly to impede access to records by driving up the costs, an illegal plan for which she is presently under investigation by the State Bar. Her BIDdies certainly can’t argue convincingly that use of the requester’s own equipment, e.g. a USB drive, WOULD result in compromised security (as opposed to MIGHT so result in some feverishly imagined world) this bill will likely put an end to Humiston’s illegal nonsense.

And interestingly this bill has drawn no significant opposition, not even from the California Downtown Association or other assorted BID fronts that habitually oppose even the mildest and most unobjectionable improvements in the Public Records Act.1 E.g. this year Todd Gloria’s AB 1184, which merely clarifies that existing state records retention law applies to emails.

Anyway, passing the Assembly unanimously is a good sign, and fingers crossed for the Senate. You’ll find no pre-hatch chicken counting around here, though. We saw in 2017 how determined coalitions of well-funded shadow-dwelling BIDdies can sink even very well-supported bills in the reconciliation process long after they’ve passed one house or another. Turn the page for a transcription of selections from the Assembly floor analysis of the bill.
Continue reading AB1819 Passes Assembly — Now On To Senate — A Tiny But Essential Improvement To The California Public Records Act — Will Require Agencies To Allow Requesters To Copy Records At No Charge — Using Their Own Equipment — Includes Electronic Files — Take That, Department Of Alcoholic Freaking Beverage Control!

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Business Improvement Districts And A Bunch Of Backwater Small Towns Oppose Assemblymember Todd Gloria’s AB1184 — Which Will Require Local Agencies To Retain Emails For Two Years — Read Their Letters Of Opposition And See What Shameless Liars They Are — Especially Suzanne Holley Of The Downtown Center BID — Who Argues With A Straight Face That Allowing Them To Delete Emails Will Increase Public Access To Information Because They Will Only Save The Important Stuff — By The Way Though I Have Proof That Holley’s BID Has Intentionally Deleted Very Important Emails In The Past — Icky Sticky BIDdie Boy Andrew Thomas Of Westwood Village BID Also Opposes — And He’s Also An Email Deleting Liar

Assemblymember Todd Gloria introduced AB 1184, which would clarify an ambiguity in state law by requiring public agencies to retain emails for a minimum of two years. You can read my earlier article on it here. Well, on Wednesday the bill was amended1 and passed out of the Senate Judiciary Committee with a 10 to 1 tally in favor.2 It’s really worth reading the Judiciary Committee Counsel’s analysis of the bill, by the way.

And I also have copies of support and opposition letters. Powerful support comes from the California News Publishers Association and the First Amendment Coalition. Here are their letters:

California News Publishers Association support for AB1184
First Amendment Coalition support for AB1184

The opposition letters are predictably stupid, self-serving, and dishonest. They mostly take the position that it will cost too damn much to store two years worth of emails. Obviously, though, none of them provide any evidence because it’s just not true.3 Here are the links:

City of San Carlos opposition to AB1184
City of West Hollywood opposition to AB1184
Various BIDdie Associations opposition to AB1184
Downtown Center BID opposition to AB1184

And, probably unsurprisingly, this last one, penned by Downtown Center BID executive director Suzanne Holley, already known to be one of the most mendacious of an exceedingly mendacious crew of Los Angeles BIDdies, is perhaps the most twisted, the most dishonest, and the most ineffective, it turns out, out of all of them. There is a transcription after the break, but behold a few highlights with commentary and counterpoint.

Suzanne, why is your BID opposed to this? “Agencies would be forced to maintain an onerous amount of data.” And why is this not in the public interest, Suzanne? “the public would need to sort through thousands of emails to find the relevant needle in the haystack.” Suzanne! See that little box in your email client with a magnifying glass in it? If you put words in there and click on something the computer will sort through the emails for you! I use mine all the time!

Explain again, Suzanne! “Requiring the retention of tens of thousands of emails will bury relevant information…” And what is your answer to this imaginary problem, Suzanne? ” we believe the bill can be amended to ensure that the retention only apply to information relevant to the public business.” Of course, Suzanne, the problem is that on your scheme, YOU would be the one who decides what the public business is when obviously it’s the public that needs to decide.

And what kind of stuff would Suzanne delete if allowed? Here’s what she says doesn’t need to be retained: “Every email, regardless of how irrelevant would need to be retained. … Even an email asking a colleague out to lunch would fall under the purview of this bill.” See? Suzanne is asking the public to trust her to determine which emails it’s in the public interest to retain. She seems to be saying she’s just going to delete a lot of emails about lunch dates.

Leaving aside serious arguments that such emails may be very important indeed, let me tell you a little story about what kinds of emails Suzanne Holley actually does in fact delete. Remember all those emails I got in 2017 about BID involvement in the destruction of the Skid Row Neighborhood Council? That Jason McGahan, then of the LA Weekly, used in his blockbuster article? That are now evidence in the lawsuit against the City for illegally tampering with the subdivision election? Well, I got the first batch of those emails from Suzanne Holley at the Downtown Center BID.
Continue reading Business Improvement Districts And A Bunch Of Backwater Small Towns Oppose Assemblymember Todd Gloria’s AB1184 — Which Will Require Local Agencies To Retain Emails For Two Years — Read Their Letters Of Opposition And See What Shameless Liars They Are — Especially Suzanne Holley Of The Downtown Center BID — Who Argues With A Straight Face That Allowing Them To Delete Emails Will Increase Public Access To Information Because They Will Only Save The Important Stuff — By The Way Though I Have Proof That Holley’s BID Has Intentionally Deleted Very Important Emails In The Past — Icky Sticky BIDdie Boy Andrew Thomas Of Westwood Village BID Also Opposes — And He’s Also An Email Deleting Liar

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Letters Of Support And Opposition To Senator Bob Wieckowski’s SB518 — Which Would Eliminate 998 Offers In California Public Records Act Cases — Set For Hearing Before Senate Judiciary Committee On April 23 — Which Is This Tuesday! — Predictably The Main Opposition Is From The California Downtown Association — Which Represents Bad BIDdies All Over The State — And From A Bunch Of Other Similarly Situated Groups

I wrote a couple of months ago about Senator Bob Wieckowski‘s SB 518, which would make a fairly technical albeit quite important improvement to the California Public Records Act. In short this bill would disallow the use of Code of Civil Procedure §998 in CPRA lawsuits. As I said, it’s a fairly technical matter, but it’s well-explained here on Wieckowski’s fact sheet:

The purpose of a §998 offer is to encourage settlement by providing a strong financial
disincentive to a party, whether it be a plaintiff or defendant, who fails to achieve a better result than that party could have achieved by accepting the opponent’s settlement offer. For example, if a defendant makes a §998 offer that is rejected and the
plaintiff fails to obtain a judgment that is more favorable than the offer amount, then the plaintiff is not entitled to post-offer costs and must pay the defendant’s post-offer costs.

But this kind of hardball negotiating tactic can have really negative public policy consequences in CPRA cases. Government agencies sometimes make 998 offers that would require requesters to settle for fewer than all the records they’re entitled to where refusing the offer puts the requester in jeopardy of having to pay significant costs.

As you probably know, though, there are an awful lot of government agencies who just really do not want to comply with the public records act. In my experience these include BIDs, Charter Schools, the City of Los Angeles, and various state agencies. Not all of these have actually made 998 offers to me, but certainly some of them have. And the problem is only going to get worse as the word spreads amongst the agencies.

That’s why it’s not surprising to find that the most significant opposition to Wieckowski’s bill comes from a coalition of lobbying groups representing BIDs, rural jurisdictions, and other small-scale public agencies, surprisingly led by our old friend Andrew Thomas of the Westwood Village BID. Their letter is absolutely full of lies, although I suppose it’s worth reading if you want to see what these people are paying their lobbyists to write.

The main point seems to be that they’re getting sued all the time because the CPRA currently makes it too easy to sue them and SB 518 would only make things worse. Obviously, though, and unmentioned by them in this letter, is the fact that if they would just comply with the law rather than spending many thousands of dollars learning how to evade it, they would never get sued at all. That, though, is clearly not the solution they’re looking for.

There is some significant support for the bill as well. Here’s a letter from the National Lawyers’ Guild Los Angeles, and another letter from Jeffer, Mangels, Butler, & Mitchell. Also worth reading, and there’s a transcription of the NLG-LA one after the break. The bill is coming before the Senate Judiciary Committee on Tuesday, April 23. I’ll let you know what happens!
Continue reading Letters Of Support And Opposition To Senator Bob Wieckowski’s SB518 — Which Would Eliminate 998 Offers In California Public Records Act Cases — Set For Hearing Before Senate Judiciary Committee On April 23 — Which Is This Tuesday! — Predictably The Main Opposition Is From The California Downtown Association — Which Represents Bad BIDdies All Over The State — And From A Bunch Of Other Similarly Situated Groups

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SB749 — Maria Elena Durazo’s Proposed Changes To The California Public Records Act Would Fix Two Problems — First — Local Agencies Often Claim That Records Generated By Their Private Contractors Are Exempt As Trade Secrets — This Bill Would State That Such Information Relating To Employment Conditions Is Not In Fact A Trade Secret — Second — This Bill Would Require That Requesters Are Named As Parties In All So-Called Reverse CPRA Actions — In Which A Third Party Sues To Prevent Record Release — And Would Require Parties Who Initiate Unsuccessful Reverse CPRA Actions To Pay Requester’s Fees

Senator Maria Elena Durazo filed SB-749, amending the California Public Records Act, last month, but it was only on Wednesday that it was amended away from a placeholder. The fleshed-out bill addresses two problems with the California Public Records Act.

First, it would state that “records relating to wages, benefits, working hours, and other employment terms and conditions of employees working for a private industry employer pursuant to a contract with a state or local agency shall not be deemed to be trade secrets under the act.” In my experience it’s fairly common for local agencies to claim that records like this are exempt. Sometimes they claim that they’re trade secrets1 and sometimes that they’re material found in personnel files.2

That last claim is pretty clearly bogus, so probably the more serious obstructionists rely more on claims of trade secrets. For instance I had this happen to me with the Fashion District BID in the person of Rena Leddy, who refused to tell me the hourly rates of the BID’s renewal consultant, Urban Place Consulting. That is, until a kindly lawyer sent them a not-so-kindly demand letter on my behalf. Then they coughed the goods right up.3 So if the bill passes with this bit intact they won’t be able to do that any more, and the personnel file claim is functionally a non-starter, so that’ll be good.

Incidentally, while I understand the danger of letting the perfect be an enemy to the good, I would still just like to say that the problem being solved here is at best a minor particular instance of a much larger family of problems involving records owned by private contractors who are working for public agencies. That is, that the agencies can write the contracts so that the contractor owns the records and the agency explicitly does not have access to them.

The Hollywood Property Owners’ Alliance famously did exactly this in 2016 with the Andrews International BID Patrol. Kerry Morrison even admitted under oath that the purpose of the change was to thwart my CPRA requests. And the judge ruled that it was allowable under California law for them to do this, and even to make the change retroactive.

But such is not the law in every state. For instance, Florida Statutes section 119.0701 makes pretty much all records generated by private contractors subject to the CPRA if they relate to work done for a public agency. It’s a really powerful, really beautiful statute. We need a version here, and this bill is not it. But it’s not bad.

The second issue addressed by Durazo’s bill has to do with reverse CPRA actions. In these suits a third party, e.g. a police union, sues to prevent a public agency from releasing records to a requester. The Court of Appeal held last year that the third party is liable for the requester’s fees if they lose, and this bill would formalize that finding by putting it into the statute. The bill also requires that the requester be brought into a reverse CPRA action as a party, I assume so that the case can’t be heard without the requester’s input.

And finally, and this may be the most powerful part, the law would forbid a court from ordering that a record be withheld if the order is based on a discretionary exemption. But most of the exemptions are discretionary. In fact I kind of think that all of them are, but maybe there’s something I don’t understand. This clause alone will make it harder to win reverse CPRA actions, as it should be. Turn the page for a transcription of the legislative counsel’s digest and the proposed new statutory language.
Continue reading SB749 — Maria Elena Durazo’s Proposed Changes To The California Public Records Act Would Fix Two Problems — First — Local Agencies Often Claim That Records Generated By Their Private Contractors Are Exempt As Trade Secrets — This Bill Would State That Such Information Relating To Employment Conditions Is Not In Fact A Trade Secret — Second — This Bill Would Require That Requesters Are Named As Parties In All So-Called Reverse CPRA Actions — In Which A Third Party Sues To Prevent Record Release — And Would Require Parties Who Initiate Unsuccessful Reverse CPRA Actions To Pay Requester’s Fees

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San Diego Assemblymember Todd Gloria’s Bill AB-1184 Would Require Public Agencies To Retain Email For No Less Than Two Years — Which Is Exceedingly Important — Many Of Them Use Absurdly Short Retention Periods Intentionally To Evade CPRA Obligations

The California Public Records Act explicitly includes emails in the class of records which are open to public inspection. For some reason, though, many agencies are resistant to this idea and think that somehow emails are less recordy than more old fashioned kinds of records. This weird theory, along with the fact that the CPRA doesn’t impose any kind of obligation to retain records on agencies, has inspired bunches of agencies to establish absurdly short retention schedules for emails.

There are plenty of BIDs in the City of Los Angeles, for instance, which claim that they delete emails after 30 days. They’re lying, of course, but the fact that they say this makes it harder to prove that they’re illegally withholding records. And they are consciously adopting these policies to avoid having to comply with the CPRA. For instance, at the famous BID anti-CPRA seminar held by Carol Humiston last summer, she told attendees that:

You do not need to save most emails. If you want to preserve important information that was sent by email, print it out, make a copy, and delete it from your computer.

And evidently this is a problem all over California, although I’m guessing that it doesn’t take such a consistently extreme form outside of Los Angeles. Which is I guess the inspiration for the timely and most excellent AB 1184. Written by San Diego Assemblymember Todd Gloria, this bill would require that agencies retain emails for a minimum of two years.

If you support government transparency, and why would you be visiting here if you did not,1 well, I hope you’ll write or call your legislators and tell them to pass this damn bill. If you don’t know who they are you can find them here. And turn the page for some text!
Continue reading San Diego Assemblymember Todd Gloria’s Bill AB-1184 Would Require Public Agencies To Retain Email For No Less Than Two Years — Which Is Exceedingly Important — Many Of Them Use Absurdly Short Retention Periods Intentionally To Evade CPRA Obligations

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Bakersfield Republican Assemblymember Vince Fong Introduced AB 289 — Seeking To Establish State Level CPRA Ombudsman — Who Would Receive Denied Requests From Members Of The Public For Review — And Would Be Empowered To Disclose Requested Records If Withholding Is Unjustified — This Would Only Apply To State Agencies — Not Local Ones Like The City Of LA And The Damn BIDs — Nevertheless It’s A Step In The Right Direction — Of Making Lawsuits Less Necessary — So That More People Will Be Able To Afford To Dispute Denials

Assemblymember Vince Fong‘s AB-289 would establish the office of CPRA ombudsman under the State Auditor. The ombudsman would review requests made of state-level offices and would be empowered to actually turn the disputed records over to the requester if it were determined that they’d been improperly withheld. This would be a really important development in CPRA-world given that presently the only recourse available to a member of the public whose requests are denied improperly is to file a lawsuit, which is expensive, anxiogenic, and slow as hell. The ombudsman would be required to respond to requests for review within 30 days.

As I said, sadly this would only apply to state-level agencies and not at all to local agencies like the City of Los Angeles and its panoply of damnable business improvement districts, all of whom deny requests improperly all the damn time. I sue a lot of them but I can’t sue all of them, at least not all at once. And a CPRA petition can take close to two years to get a BID to cough up records, so it’s not an ideal solution in any way. An intermediate level of review like this would be really useful on the local level too.

But that’s not to say that it won’t be very useful on the state level. In my experience the state is much better about CPRA compliance than the various local agencies I work with, but state agencies can nevertheless deny access to records improperly, and if this bill passes into law I expect to make fairly regular use of it. Looking at you, Alcoholic Beverage Control, you and your unhinged gun-brandishing special agent in charge Gerry Freaking Sanchez. I’ll be tracking this as it makes its way through the legislative process, and turn the page for a transcription of the Legislative Counsel’s digest and the text of the bill.
Continue reading Bakersfield Republican Assemblymember Vince Fong Introduced AB 289 — Seeking To Establish State Level CPRA Ombudsman — Who Would Receive Denied Requests From Members Of The Public For Review — And Would Be Empowered To Disclose Requested Records If Withholding Is Unjustified — This Would Only Apply To State Agencies — Not Local Ones Like The City Of LA And The Damn BIDs — Nevertheless It’s A Step In The Right Direction — Of Making Lawsuits Less Necessary — So That More People Will Be Able To Afford To Dispute Denials

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Yesterday — March 6, 2019 — The Assembly Committee On The Judiciary Introduced AB-1819 — Would Require Agencies Subject To The California Public Records Act To Allow Requesters To Copy Records With Their Own Equipment At No Charge — Mostly Agencies Already Allow This But Some Incredibly Obstinate Obstructionists Do Not — Looking At You, Alcoholic Beverage Control — Hence This Law Is — Sadly — Incredibly Necessary

The California Public Records Act presently requires agencies to allow anyone to “inspect” records at no charge.1 This is an incredibly important right, tempered only slightly by the fact that the law also allows agencies to charge people for copies of the records.2 The ability to charge is used by too many agencies as a way to discourage free inspection, and one way that they do this is to forbid people from making their own copies with their own equipment.

This has been an issue in California for decades,3 but it’s become much more prominent with the widespread use of phones and extremely portable document scanners. These days pretty much every member of the public already owns photographic equipment capable of making sufficiently high quality reproductions of paper records. So not only is it extremely disconcerting when an agency forbids photography of records, but the refusal affects many more people than it might have in the past.

Just for instance, probably in response to the paranoid psychosis of Special Agent in Charge Gerry Sanchez, the California Department of Alcoholic Beverage Control has recently begun to forbid me from photographing records, justifying their obvious obstruction with various nonsensically unsupportable claims about security and cell phones. So what a pleasant surprise to learn yesterday of the introduction in the Assembly of AB-1819, which would amend the CPRA to state explicitly that agencies must allow people to make their own copies at no charge.

The bill was introduced by the entire Assembly Committee on the Judiciary, so I imagine that that means it has pretty widespread support. Even the three Republican members of the Committee are listed among the sponsors. And it’s hard to imagine what legitimate reasons there might be for opposing this. But it never hurts to speak up, so consider getting in touch with your representatives and supporting this essential bill. And turn the page for a red-line version showing the proposed changes.
Continue reading Yesterday — March 6, 2019 — The Assembly Committee On The Judiciary Introduced AB-1819 — Would Require Agencies Subject To The California Public Records Act To Allow Requesters To Copy Records With Their Own Equipment At No Charge — Mostly Agencies Already Allow This But Some Incredibly Obstinate Obstructionists Do Not — Looking At You, Alcoholic Beverage Control — Hence This Law Is — Sadly — Incredibly Necessary

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Senator Ben Hueso Introduced SB615 Yesterday — Would Gut California Public Records Act By Requiring Proof That Noncompliant Agencies Knowingly And Willfully Withheld Records — This Would Make It Extremely Difficult For Requesters To Recover Fees — Which Would Make It Extremely Difficult For Requesters To Hire A Lawyer — Which Would Decimate The Already Lousy Compliance Level

Yesterday, February 22, 2019, Senator Ben Hueso introduced SB 615, a bill which would rewrite the California Public Records Act to make it radically more difficult for requesters to file and win petitions against noncompliant public agencies. As it stands, a petition filed in Superior Court is the only mechanism for enforcement of this essential law. Most people can’t afford lawyers, of course, but the CPRA at least tries to ameliorate this flaw by making it relatively easy for requesters to recover attorney’s fees from noncompliant agencies.

The law presently says that a requester wins a CPRA suit if the suit induces the agency to produce a record that was previously withheld. It’s not necessary to prove that the agency withheld the record on purpose. In fact, in Community Youth Athletic Center v. National City the California Court of Appeals specifically held that even incompetence or neglect were not valid excuses for not producing. Hueso’s bill would nullify this opinion and many others like it and require requesters to show that agencies “knowingly, willfully, and without substantial justification failed to respond to a request for records.”

In my extensive experience, agencies are already expert at denying access to records without ever saying that that’s what they’re doing. Instead they create an endless series of delays, errors, failures to respond quickly, and so on, which add up to a denial. I have had public agencies shine me on for years this way. And sadly judges are generally so deferential to public agencies that it’s already nearly impossible to prove that an agency involved in this kind of disingenuous delay is in violation. If it becomes necessary to prove that they’re doing it on purpose in order to recover fees there will be even fewer lawyers than there already are willing to take on these cases.

The bill would add a few other ways for a requester to prevail. Most of these are bad or neutral, but one is somewhat positive. That is the statement that petitioner wins by showing that “[t]he agency unreasonably delayed providing the contents of a record subject to disclosure in part or in whole.” Currently the CPRA says that agencies can’t delay access but it doesn’t explicitly create a cause of action for delay. Again, in my experience, judges’ deference makes attorneys reluctant to file such petitions. Maybe this would improve that situation.

That one potential improvement is not worth the destruction, though. If this bill passes into law look for already obstructionist agencies to ramp up their obstruction. Look for the already small number of lawyers willing to take CPRA cases on an affordable basis to decline sharply. Look for the already slow flow of records to decrease drastically.

Interestingly, the right of access to public records is written into the California Constitution at Article I Section 3, and in subpart (b)(2) it requires that “A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.” Hueso’s bill contains some boilerplate language about this, but it doesn’t demonstrate anything, it just states it. The bill would clearly limit access, though, so maybe it would end up being unconstitutional.

And turn the page for a transcription of the legislative counsel’s summary and of the actual proposed changes. And then find your legislator and write in opposition to this crappy and dangerous bill.
Continue reading Senator Ben Hueso Introduced SB615 Yesterday — Would Gut California Public Records Act By Requiring Proof That Noncompliant Agencies Knowingly And Willfully Withheld Records — This Would Make It Extremely Difficult For Requesters To Recover Fees — Which Would Make It Extremely Difficult For Requesters To Hire A Lawyer — Which Would Decimate The Already Lousy Compliance Level

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Senator Bob Wieckowski Introduces SB518, Which Would Exempt CPRA Petitions From CCP §998 — A Hardball Negotiating Tactic Which Might Induce Petitioners’ Lawyers To Settle For Far Less In Fees Than They Deserve — Thus Undermining The Only CPRA Enforcement Mechanism Created By The Legislature — This Is An Obscure And Technical Improvement To The CPRA — But An Extremely Important One — Thank You, Senator Bob!

California Code of Civil Procedure §998 authorizes a particularly hardball negotiating tactic in lawsuits in California. One party can make what’s called a 998 settlement offer to the other. If the other party wins but doesn’t get awarded more money than in the 998 offer, the losing party doesn’t have to pay more than the offer. The idea is to encourage parties to seriously consider reasonable settlement offers rather than litigating for the sake of litigation.

And don’t forget that the only mechanism for enforcing the California Public Records Act is by filing a petition. The legislature has made this financially possible by including a mandatory award of attorney’s fees to the requester if they win.1 This is at §6259(d).2 There are built-in protections for requesters as well. Most notably that public agencies can’t recover their own costs from requesters even if they win, except under very rare circumstances.3 This is also found at §6259(d).

Without this potential award of attorney’s fees having court cases be the only mechanism for enforcement would be really unfair. Requesters would have to pay lawyers up front and public agencies would end up ignoring the CPRA altogether except if they thought requesters could afford expensive lawyers. And that would be a really bad outcome. As the CPRA itself says, right up at the top in §6250, “In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

Finally, it is not unheard of for lawyers representing public agencies to make 998 offers.4 When such an offer is received it’s necessary to put some careful thought into rejecting it, because it could end up costing the attorney a lot of money if the fee award ends up being less than the offer. And the serious problem with this is that it could well induce plaintiffs’ attorneys to settle for less money than the case is worth.

In turn, this makes it more difficult for lawyers to be able to afford to take these cases, and this ends up eroding the financial viability of the only CPRA enforcement mechanism available. But judicial enforcement of the CPRA protects a “fundamental and necessary right of every person in this state.” So it’s bad public policy to allow 998 offers in CPRA cases.

Enter state senator Bob Wieckowski. He’s well-known for his attention to essential yet technical flaws in the CPRA. Just for instance, last year he introduced a bill to widen access to records and protect requesters from financial retaliation by public agencies who inadvertently released privileged records. Some aspects of it didn’t survive the legislative process, but it did accomplish its main goal.

And in keeping with this tradition, yesterday, February 21, he introduced SB 518, whose purpose is to outlaw 998 offers in CPRA cases.5 This is really important for all the reasons given above and probably some others that didn’t occur to me. Turn the page for a transcription of the legislative counsel’s digest and of the changes to the statute being proposed.
Continue reading Senator Bob Wieckowski Introduces SB518, Which Would Exempt CPRA Petitions From CCP §998 — A Hardball Negotiating Tactic Which Might Induce Petitioners’ Lawyers To Settle For Far Less In Fees Than They Deserve — Thus Undermining The Only CPRA Enforcement Mechanism Created By The Legislature — This Is An Obscure And Technical Improvement To The CPRA — But An Extremely Important One — Thank You, Senator Bob!

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