Tag Archives: CPRA 6259

LAPD Produces Three Records From The Regional Public Private Infrastructure Collaboration System In Response To My CPRA Suit!

In February, my hand forced by the mindless obstructionism of the City of Los Angeles with respect to compliance with the California Public Records Act, I filed a petition asking a judge to compel them to hand over two classes of records. First were private person’s arrest forms generated in Hollywood in 2018. The point here is to be able once again to track arrests by the BID patrol after their appalling 2016 contract amendment took these records, at least for now, out of the reach of the CPRA.

The second kind of records I’m seeking in the suit are postings to the Regional Public Private Infrastructure Collaboration System, familiarly known as RPPICS. This is some kind of cop bulletin board that a lot of BIDs have access to, and the LAPD claimed that everything on the system could be withheld from me under the so-called investigative materials exemption to the CPRA, found at §6254(f).

And it’s these last ones that seem to have cracked the case. Last Thursday the City of Los Angeles, in the person of Deputy City Attorney Jonathan Bislig, sent over this letter admitting that the City possessed responsive RPPICS material that was not exempt and yet had not been produced. And they attached four pages of material, constituting three responsive records. There’s a transcription of the letter and of one of the RPPICS items after the break, and here are links to all three:

This is not only hugely important because we finally get to see some material from the hitherto top secret RPPICS, but also because the fact that the City released previously withheld material as a result of a suit means that I’m the “prevailing party” and therefore that the City has to pay my lawyer. This was held in the monumental 1991 case Belth v. Garamendi, which interpreted §6259(d) of the CPRA thus:

In this case we hold that Government Code section 6259, subdivision (d), mandates an award of court costs and reasonable attorney fees to a plaintiff who prevails in litigation filed under the California’s Public Records Act. We further hold that the plaintiff has prevailed within the meaning of the statute when he or she files an action which results in defendant releasing a copy of a previously withheld document.

This release is also hugely important because it shows really clearly that LAPD’s original denial was completely bogus. There’s nothing investigative at all about these three records. They falsely characterized them that way purely so they didn’t have to produce them, or even search for them, for that matter. It’s shameful that LAPD, and the City of Los Angeles as a whole, treats its mandated duties under the CPRA so lightly. It’s also shameful that the only means to enforce compliance is a lawsuit.

Together, these shameful facts mean that the only possible strategy is to keep suing them until they get their act together. It’s going to be expensive for taxpayers, who have to foot the City’s legal bill and also the requester’s in successful cases, but as Sigmund Freud famously said, if you don’t pay you don’t get better. More news as I have it, and turn the page for some transcriptions.
Continue reading LAPD Produces Three Records From The Regional Public Private Infrastructure Collaboration System In Response To My CPRA Suit!

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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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Minuscule Release Of Emails From Venice Beach BID Nevertheless Reveals Likely Brown Act Violations Along With Interesting Operational Details — Tara Devine Adopts Radically Different Personae Depending On Which Email Address She’s Sending From — Ultimately Successful Security Vendor Allied Universal Employed Powerhouse Lobbying Firm Cerrell To Help Win VBBID Contract — Possibly It Didn’t Help Them Win The Contract But Not Enough Evidence To Say For Sure (Yet!)

So in April 2018 I had to file a petition against the Venice Beach BID seeking to enforce compliance with the California Public Records Act because they’re so damn obstructionist that they had, at that time, been ignoring my requests for 14 months. Well, a few weeks after my lawyer filed the petition, Tara Devine started producing records1 and recently I received another set, this consisting of 45 emails between Devine and various parties on the subject of the BID’s search for a security provider. The whole set is available here on Archive.Org.

Unfortunately, there’s very little of specific interest here, although not nothing, and the interest is most certainly not nothing. Most importantly, there’s yet more circumstantial evidence that the VBBID engaged in systematic and egregious violations of the Brown Act during 2017. On a more personal level, but still interesting for the insight they yield into the weirdo mindset of BID executive director Tara Devine, there are records here demonstrating the radically different modes of address she uses depending on which email account she’s using to communicate.

For instance, she addresses Becky Dennison as “Becky” when sending from her tara@venicebeachbid.com or her tara@devine-strategies.com accounts, but when sending anonymously from admin@venicebeachbid.com she calls her “Ms. Dennison.” Note that this phenomenon may or may not be related to the semantic oddities of Kerrymorrisonese.

It’s also interesting that the ultimately successful bidder for the BID’s security contract, Allied Universal, hired Los Angeles superlobbyists Cerrell to influence the BID’s choicemaking process. Unfortunately the emails contain just enough information to show that this happened while remaining silent on why it happened or how it played out in the selection process. Hopefully further research will shed light on these issues.

And turn the page for links to and transcriptions of specific emails!
Continue reading Minuscule Release Of Emails From Venice Beach BID Nevertheless Reveals Likely Brown Act Violations Along With Interesting Operational Details — Tara Devine Adopts Radically Different Personae Depending On Which Email Address She’s Sending From — Ultimately Successful Security Vendor Allied Universal Employed Powerhouse Lobbying Firm Cerrell To Help Win VBBID Contract — Possibly It Didn’t Help Them Win The Contract But Not Enough Evidence To Say For Sure (Yet!)

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Judge Mary Strobel Rules That The Media District BID Must Pay $30,000 In Fees To My Attorney In My CPRA Case Against Them!! — Huge Fail For Hollywood Superlawyer Jeffrey Charles Briggs And His Bizarro-World Argument That I Deserve To Lose Cause I Am So Mean To His BIDdie BFFs — Briggs’s Other BID Clients Ought To See That It Is Time To Choose Between Coughing Up The Records And Coughing Up The Benjamins!!

As I’m sure you’re aware I was forced in 2016 by the arrogant intransigence of the Hollywood Media District BID to file a writ petition against them asking that they be ordered to follow the damn law.1 The petition was granted in part on January 30, 2018 and the BIDdies had to hand over some emails to me. I wrote about those goodies here and here.

What happens then is exceedingly clear under the law. The CPRA §6259(d) states that: The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.

The “shall” means that a fee award is mandatory. The judge is not allowed not to award fees to the requester if the requester prevails. Of course, we have to consider what it means to prevail, but this has been settled by the courts in Belth v. Garamendi, which states: We further hold that the plaintiff has prevailed within the meaning of the statute when he or she files an action which results in defendant releasing a copy of a previously withheld document.

So the fact that the judge ordered the BID to give me those emails in February pretty much sealed their fate. Of course, they weren’t going down without a fight. My lawyer, the incomparable Colleen Flynn, asked them for $48,000 in fees. Briggs filed a response saying essentially that we shouldn’t get any fees but if we did it shouldn’t be nearly that much.

Flynn filed a simply brilliant rejoinder to that, and this very morning the judge rejected every last one of Hollywood Superlawyer Jeffrey Charles Briggs’s arguments, including his incredibly, embarrassingly whiny oral argument, and handed down a ruling awarding $30,000 in fees to Flynn. Ironically, before the ruling, Flynn offered to settle for significantly less than that and was roundly rejected by Attorney Briggs. Turn the page for a transcription of the ruling and a little more commentary.
Continue reading Judge Mary Strobel Rules That The Media District BID Must Pay $30,000 In Fees To My Attorney In My CPRA Case Against Them!! — Huge Fail For Hollywood Superlawyer Jeffrey Charles Briggs And His Bizarro-World Argument That I Deserve To Lose Cause I Am So Mean To His BIDdie BFFs — Briggs’s Other BID Clients Ought To See That It Is Time To Choose Between Coughing Up The Records And Coughing Up The Benjamins!!

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Venice Beach BID Sued To Enforce Compliance With The Public Records Act

Yeah, perhaps you recall that in February 2017 I sent a public records act request to the newborn Venice Beach BID and executive directrix Tara Devine has been conscientiously ignoring it ever since. And so I hired a lawyer. And the lawyer filed this petition in Los Angeles County Superior Court. And served the petition on the BID yesterday.

Of course, this is the same course of action that the Larchmont Village BID recently thrust upon me. I wish there was some way to get these BIDdies to follow the law other than by filing petitions against them but the State Legislature, in its inscrutable wisdom, has made this the only remedy. Sad but true. Stay tuned for more information and turn the page for some excerpts from the petition.
Continue reading Venice Beach BID Sued To Enforce Compliance With The Public Records Act

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