A few weeks ago, in the middle of about a thousand pages of emails that the City Clerk’s office finally handed over, only about six months after I asked for them, I found this little gem of an email chain. Most of it is me hassling various Clerk staffies for the list of addresses, but right in the middle of it all, there’s an interlude between Holly Wolcott and Deputy City Attorney Mike Dundas, who’s evidently some kind of CPRA specialist over there in City Hall East.1
The TL;DR is that she goes: “Mike, do I gotta give him the goods?” and Mike’s all: “Nah, Holly, you don’t gotta because reasons.” It’s also interesting that the reasons he gives her are specious, providing, among other things, yet another example of how the Property and Business Improvement District Law of 1994 (which makes BIDs subject to CPRA) seems not to be understood so well over at City Hall. You will find some discussion after the break, along with quotes if you’re PDF-averse.
Here’s Holly’s email to Mike:
Holly Wolcott <firstname.lastname@example.org>
To: Mike Dundas <email@example.com>
Am I under any legal obligation to try and obtain a mailing list that the consultant uses to send out petition [sic] for BIDs? We do not have it.
And Mike’s reply:
Mike Dundas <firstname.lastname@example.org>
To: Holly Wolcott <email@example.com>
Rita told me that the consultant was under contract to the BID not the city. If that is correct then the city does not have the list in its possession and cannot produce it. Since the BID is subject to the CPRA, the bid should respond to his request.
Oh, where to start?2 How about with Mike Dundas’s tacit contention that because “the city does not have the list in its possession and cannot produce it,” the City is not therefore required to produce it.
First of all, §6252(e) of the CPRA defines public records thus:
any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.
And then, speaking to the question of why Mike Dundas is focusing on whether the City has the mailing list “in its possession,” take a look at §6253(c), which states in part:
Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency…
This clause does seem to suggest that the City is responsible only for producing records in its possession, but then, why the exhaustive list in §6252(e)? Surely amongst records “prepared, owned, used, or retained” there will be records that aren’t in the physical possession of the City but which are nevertheless used by the City, which was the argument I was making at this point. I believe that a strong case could be made at this point that the facts that the City certifies BID consultants and is willing to act as a BID consultant for BID proponent groups that don’t care to hire their own consultants, and BIDs are set up at the at least informal behest of Council Districts, imply that the City uses all the material produced by the BID consultant, and thus has at least constructive possession of the materials she produces.
Not only that, but that seems to be the only mention in CPRA of possession. All of the other clauses requiring the City to produce stuff don’t mention possession, leading me to think that possession isn’t really that important in the grand scheme of things. And why should it be? Given the penchant of agencies like the City of Los Angeles, and of Mike Dundas in particular, for improperly withholding documents, how would it make sense to incentivize them to hand over their public records to semi-privatized lackeys like Tara Devine3 so that they could claim they didn’t possess them and therefore were not required to produce them in response to CPRA requests? Along these lines, also, take a look at §6253.3 of the CPRA, which states that:
A state or local agency may not allow another party to control the disclosure of information that is otherwise subject to disclosure pursuant to this chapter.
Is this not exactly what the Clerk is doing by letting the BID consultant hold this essential document?
Also, Mike Dundas seems to be basing this part of his argument on the assumption that: “…the consultant was under contract to the BID not the city…” If indeed this fact is relevant, it may actually cut against Mike Dundas’s argument. Through its screening process, its evaluation of credentials, its publication of a directory of consultants, and so on, the City clearly controls who is allowed to be a BID consultant. If a wannabe BID consultant can’t get on the list they won’t be able to work with the City. The City has the power to nix a consultant if the consultant won’t do things how they want. Does that not suggest that they have some kind of contractual relationship with consultants, if only oral, informal? I don’t know enough about the law to say for sure, but it’s not at all like BID consultants are random parties off the street with respect to the City. They’re chosen, vetted, and (informally) licensed by the City.
Furthermore, Mike Dundas is being at best careless (and at worst nefarious) when he tells Holly Wolcott that “[s]ince the BID is subject to the CPRA, the bid should respond to his request.” Of course, he’s referring to the (by now) well-known §36612 of the Property and Business Improvement District Act of 1994:
“Owners’ association” means a private nonprofit entity that is under contract with a city to administer or implement improvements, maintenance, and activities specified in the management district plan. … an owners’ association shall comply with … the California Public Records Act … for all records relating to activities of the district.
It’s very much an open question, occasionally discussed in these pages, as to whether a BID4 is subject to the CPRA before the contract with the City is signed. According to the letter of the law it would not seem to be so. In any case, there’s no way for Mike Dundas to be certain that it is so subject, and hence he ought not to be advising Holly Wolcott on the basis of an assumption that it is.
Anyway, there’s not really a conclusion to this story other than to point out that Mike Dundas is going to tell the City how not to release stuff rather than how to release stuff. This is not surprising, but it continues to disappoint. Unlike most such stories, though, this one does have a happy ending of sorts.5 Miranda Paster eventually did give me a copy of the mailing list. However, given that the lovely §6253.1(a)(3) requires the City to “[p]rovide suggestions for overcoming any practical basis for denying access to the records or information sought,” and given that, all along, it was clear to Holly Wolcott and her staff that it was the addresses of the property owners I was seeking rather than the particular version of the list that Tara Devine had, and given that Miranda Paster had some list with this information on it, which she gave me weeks later, it’s pretty clear that they failed, failed utterly, to abide by their legal duty. But that also is not a surprise, that also continues to disappoint.
Image of Holly Wolcott is a transformative remogrification of a public record, which I can’t remember now where I got it.
- Not only does he, it turns out, advise the Clerk, but in the past he has advised CD13 with respect to my requests. I also have evidence that he advises CD14 with respect to David Zahniser‘s requests, but that’s going to be a story for another day. Also, don’t ask him for a picture of him via CPRA because, even though it’s clearly a legitimate request, he will turn it all around on you and you won’t get it anyway. Hi Mike!
- I’m not trying to obscure the fact that Holly Wolcott was raised properly, it’s just that it diverts attention from the argument. Here’s her reply to Mike:
Holly Wolcott <firstname.lastname@example.org>
To: Mike Dundas <email@example.com>
- Just for example.
- Or, more technically, a BID’s property owners’ association.
- It’s a highly local happy ending, although part of a globally tragic story. I did get this particular piece of information, but the City, on Mike Dundas’s advice, continues to be absolutely intractable with respect to its duties under CPRA.