In any case, whatever her manifold faults as a CPRA client may be, Laurie Sale, executive directrix of the Palisades BID, is at least a reliable source of minutes and agendas. You may recall that she was previously kind enough to send me the PPBID’s 2016 minutes and agendas, and this weekend she sent me the 2017 minutes and agendas through February. There’s some interesting stuff in there, primarily about street vending, which I will write on quite soon. The minutes also suggest that CD11 field deputy Sharon Shapiro2 is an actual member of the PPBID’s Board of Directors. I’ll be looking into this, not least because it’s reminiscent of Debbie Dyner Harris’s ill-fated attempt to nab a voting seat for CD11 on the Board of the Venice Beach Property Owners Association, which was slapped down ignominiously by City Attorney Mike Feuer as a conflict of interest.
But never mind that for now. The text for today’s sermon is this little slab of nonsense, found in the BID’s minutes for February 1, 2017:
BID received requests for public records – copies of meeting minutes, agenda, emails back and forth within the City, etc. from a gentleman who is requesting this from many BIDs. Elliot made a motion to retain attorney not to exceed $4,000. Rick seconded, all approved, motion carried. In the event that this person wants copies made, then we need to request payment. Rick motioned: “we don’t want to make it difficult for him, but to rather provide him every access to public records according to the strictest rules of law so that it doesn’t provide any financial detriment to the property owners of our business improvement district.” Susan seconded. Unanimously approved, motion carries.
Let’s not even talk about Laurie Sale’s use of the word “gentleman,” which is the copspeak equivalent of Ms. Kerry Morrison’s use of honorific titles. Instead, let’s think about the fact that they are going to spend $4,000 to have a lawyer advise them on my CPRA requests. This is mostly interesting in relation to the fact that, according to the estimated annual expenditures of the BID, they’re expecting to receive $140,509.58 in assessments in 2017. It’s hard to imagine how it’s worth spending 2.8% of their entire annual income paying a lawyer to tell them how to follow a perfectly transparent law in order to avoid “any financial detriment to the property owners” is a good idea.3
What’s more interesting, though, is Rick’s4 statement that they don’t want to make it difficult for me to get records, but they do want to stick to “the strictest rules of law.” On the one hand, this is obvious disingenuity. It’s the statement of someone who thinks that saying that they don’t want to make access to records difficult is the functional equivalent of not being held liable later for actually having violated the law by making access to records difficult. On the other hand, it’s exceedingly interesting to consider what it means to stick to “the strictest rules of law” in relation to CPRA.
Maybe you remember that a few years ago we amended the State Constitution to make government compliance with CPRA a fundamental right. In part, this amendment added language to Article I, Section 3 to guarantee CPRA compliance by local agencies, such as BIDs. Not only that, but the Constitution has an embedded rule of construction for CPRA. Subsection 2 of Section 3 tells us that:
A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.
And this is where Rick Lemmo’s motion gets really interesting. The law explicitly requires a broad construction if it furthers access to records. So “the strictest rules of law” in relation to CPRA require the broadest interpretation. The more strictly one construes CPRA, the more broadly one must allow access to records.
If this theory is accurate,5 then what might it mean in relation to CPRA §6253.9(a)(2), I wonder? This useful section says in part that when an agency supplies a copy of an electronic record, “[t]he cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.” This section is routinely abused by BIDs, who somehow think it means that they can choose the storage medium and base their price accordingly.
So for instance, I often have BIDs refusing to use Dropbox to transfer files,6 most likely because it’s free.7 At some point many of them switched over to insisting on using optical storage,8 probably because they realized that they could charge me actual money and hoped that it might act as a deterrent. And recently, for some reason, they’re all insisting on using USB flash drives, probably because they cost even more than CDs. This has led to such ludicrous episodes as Ms. Suzanne Holley of the Downtown Center BID telling me that I would have to pay her $2 for a flash drive in order to transfer 550 kilobytes9 of data. In fact, it’s likely that she expended more than 500 kB in emails telling me over and over again that she could not just attach the record to an email. I would have to pay the $2 if I wanted a copy.
But even without the requirement to construe CPRA broadly, the requirement to charge no more than the direct cost of duplication can’t possibly allow the agency to unilaterally choose the storage medium without considering the “natural” cost of transferring the data. If §6253.9(a)(2) is to have meaning, it must be in the law to establish that there is an upper bound on chargeable costs. If agencies can choose storage media based solely on fiat, what is to stop them from requiring not just flash drives, but $37,000 jewel-encrusted flash drives? Thus, if there is to be an upper bound on duplication cost, the allowable charge must be mediated by the availability of other cheaper options. That is, if the agency could send a 500 kB record by return email, but they insist on using a flash drive, it seems that the law must forbid them from charging for a flash drive unless they have some actual rational reason not to send by email.
Similarly, for sets of records that are less than a few gigabytes, the existence of Dropbox would seem to require the agency to either use Dropbox at no cost to anyone or else to pay for their own flash drives. This argument gains even more force when one considers that most of these BIDs have websites. Although they don’t seem to generally understand this fact, a website is nothing more than an automatic method for transferring computer files from one place to another, and clicking on a link is the same as requesting a public record. So when, e.g., the Historic Core BID tells me that they only transfer records via flash drive, and that flash drives cost $3,10 but at the same time their website is serving out gigabytes of public records for free to anyone who clicks, there’s something pretty wrong with their calculations.
I think my theory on the meaning of CPRA §6253.9(a)(2) is valid even without the Constitutionally required rule of broad construction, but it’s certainly even more so when that rule is applied. Which brings us back to Rick Lemmo’s motion that the Palisades BID stick to “the strictest rules of law” when handling my CPRA requests. If the BID is going to be as strict as possible, then they have to construe the law as broadly as possible in order to increase access. Clearly, charging $4.5011 for a flash drive to transfer files is in no way “the direct cost of producing a copy of a record in an electronic format.” The direct cost, strictly, that is to say broadly, is the Dropbox price, that is to say, $0. Anyway, that’s my argument. We’ll see how it goes!
The unmodified image of Rick Lemmo modified herein started its little life as a screenshot from this video, got runned through the usual mill, and came off the conveyor belt with a ©2017 MichaelKohlhaas.org. Deal with it, friends!
- My train of thought was roughly: Palisades → Thomas Mann → Mario and the Magician → Metatextual antifascism → Business Improvement Districts!
- Whose “family helped found the Pacific Palisades” in case you were interested to know!
- That I don’t understand it probably goes at least some of the way towards explaining why I’m not a zillionaire.
- The referenced Rick seems to be Rick Lemmo, who’s Rick Caruso’s senior VP for community relations, whatever that might be. His biography on Bloomberg.com is really a fine example of…whatever it is that it’s an example of. E.g. “Being an active member of all of these entities builds and strengthens relationships that are important in monitoring the pulse of each community. With his insight, Caruso Affiliated can better respond to each neighborhood’s needs while also allowing him the opportunity to provide and enjoy public service both regionally and locally.” Now aren’t you glad that Rick Caruso bribed your Councilmember and is building an eighty story apartment building in your back yard? I am!! He’s also on Twitter, where he carries out his primary job of retweeting all of his boss’s tweets, even the ones his boss hasn’t written yet.
- And it probably isn’t; I try not to pretend that I have the first idea about what the law means…
- Or Google Drive, or any other cloud storage service. I’m just calling them all Dropbox because it’s easier, K?
- The most extreme example, not surprisingly, since extremitude is her métier, is associated with Ms. Kerry Morrison’s refusal to allow her BID to use Dropbox even for transactions that don’t involve either me or CPRA.
- CDs, DVDs, that kind of thing.
- Yes, that is meant to be kilobytes.
- There is no consistent price for flash drives from BIDs. This is probably due to the evident fact that they’re mostly just making stuff up when it comes to duplication costs.
- Laurie Sale has the most expensive flash drives of any BID, except for a few years ago when Jeff Briggs charged me more than $10 for one, which subsequently got lost in the mail. Since then he’s been using cloud storage, although not Dropbox, but who cares, to transfer files, which is most excellent! Thanks, Jeff!