Unidentified Business Improvement District Seeks Free CPRA Advice From First Amendment Coalition, Does Not Get Answer They Are Looking For

The First Amendment Coalition is, in their own words,

… an award-winning, nonprofit public interest organization dedicated to advancing free speech, more open and accountable government, and public participation in civic affairs.

and their mission includes the fairly forthright statement that

The Coalition is committed to the principle that government is accountable to the people, and strives through education, public advocacy, litigation, and other efforts to prevent unnecessary government secrecy and to resist censorship of all kinds.

For instance, in furtherance of this mission, the FAC is presently suing the City of Los Angeles over Tom LaBonge’s immoral and idiotic destruction of records from his time as Councilmember. They were also a friend of the court in the recent momentous California Supreme Court decision making the personal email accounts of public officials open to CPRA for material that relates to the public’s business. This is not an organization that anyone sane would expect to be sympathetic to the whiny, entitled, and clueless complaints of a business improvement district that has been asked to comply with its legal obligations under the California Public Records Act, amirite?

One of the most useful services that the FAC provides is called Asked & Answered. People can send in questions about CPRA and the Brown Act and the FAC’s attorneys from Bryan Cave will answer them publicly and for free if they might interest a wider audience. These questions are usually from people frustrated by inane, self-serving, and illegal government obstructionism in the face of CPRA requests. So imagine my surprise when, a few days ago, this little gem of a question appeared:

Q: As a Business Improvement District, we are an agency of our local gov’t and subject to PRAs. I have submitted countless reports, minutes/agendas, financials and even a record of one full year of emails. Now I have been asked to submit the email database I have developed for communicating with my business members.

I am not comfortable giving this database to the public. While I have no problem disclosing my email correspondence, I do not feel right giving my email database to someone who can then send mass emails to these businesses.

Do I have to submit the database if requested through the CPRA?

Well, given the FAC’s general orientation towards CPRA, you can probably imagine the answer, and you can also read it, with some commentary and the usual uninformed speculation, after the break.

The TL;DR of the FAC’s response is that the emails must be released because there’s no exemption in CPRA that would prevent it.1 The FAC attorney states clearly that because CPRA enumerates a number of really specific situations in which personal contact information is exempt, e.g. the home addresses of law enforcement officers, prosecutors, judges, and so on, it’s not likely that unenumerated kinds of contact information, such as business email addresses, would also be exempt. The super-duper TL;DR is “sorry, friend, no fricking way are you not releasing that!”

It’s not a surprising answer to anyone who understands both the purpose of CPRA and the theory of a free democratic society that underlies the law. It’s probably surprising to BIDs and their minions, since they’re so committed to the idea that the law is a weapon for them to wield against their enemies, the homeless, the poor, the dark-skinned. You can see hints of that attitude in the question to the FAC, specifically in the statement that “I am not comfortable giving this database to the public. … I do not feel right giving my email database to someone who can then send mass emails to these businesses.” Really, who thinks that the way that they feel about something is relevant at all to what the law requires of them? Rich, whiny, entitled, BID people, for one, it seems.

However, the real pressing question, that’s crying out for an answer, is which BID sent this email? I have absolutely no doubt that the email is from one of my clients. I think I know which one it is, but I don’t (yet) have definitive proof. First of all, I myself have sent questions to the FAC’s Asked & Answered service. They never answered any of them in less than a month. This item appeared on March 11, 2017, which would put my request in February or earlier, but probably not too much earlier. I have requested contact information from a number of BIDs2 but only from two in the appropriate time frame.

One of these two was the Los Feliz Village BID. On February 8, 2017, I sent Board of Directors president Rafik Ghazarian a request for the mailing list. However, the anonymous correspondent is unlikely to be Rafik Ghazarian because (a) even though I did in fact ask him for a year’s worth of emails, he has not even yet handed them over, and (b) he actually sent me the LFVBID contact information list without even trying to claim an exemption. Yay Rafik Ghazarian! And that’s why it’s probably not him.

On the other hand, Katie Kiefer of the infamous South Park BID, third weirdest of the minor Downtown BIDs, is a much more likely subject. First of all, I requested this information of her on February 10, 2017. Second of all, I have asked her for all the additional material that the anonymous correspondent lists: countless reports, minutes/agendas, financials and even a record of one full year of emails. Third, the whiny tone matches the habitual prose style of Ms. Kiefer, and finally, the weird solecistic use of “submitted” is entirely consistent with Ms. Kiefer’s language skills.

This evidence is certainly not conclusive, but I’m seeking more information. In particular, from my own experience, I know that when one submits a question, the attorneys from Bryan Cave email one back to confirm things. I’ve corresponded with three different ones about A&A questions, and they all wrote to me from bryancave.com email addresses. Thus did I email Katie Kiefer this morning asking for

all emails between you and anyone at bryancave.com that relate to the activities of your BID. I need to see such emails irrespective of whether they were sent or received from/at a work-associated email account or any other email account, including personal email accounts.

Note that my request for emails from her personal accounts, if any, is founded on the very Supreme Court case discussed above, decided less than two weeks ago. So we’ll see what happens! And, if you’re still interested, here is the full text of the FAC’s answer:

A: The California Public Records Act has numerous exemptions, some of which are specific and defined, and others which are relatively broad. Courts have repeatedly cautioned that exemptions to the PRA are to be narrowly construed in favor of disclosure.

I cannot think of any exemption that would apply to the database you describe. Although there are some contexts under which truly personal information, may be exempted from disclosure (such as the home addresses of prosecutors, public defenders, peace officers, judges, and court commissioners in certain contexts, or social security numbers of private individuals) the justifications for excluding such information in those situations does not seem to apply to the email database here, which sounds like it is comprised of email addresses of businesses that belong to the BID, and is being used to for purposes of correspondence between the agency and business members to discuss information relating to the public.

  1. CPRA states explicitly that if there’s no enumerated reason for not releasing records, then the records MUST be released.
  2. As well as from the City of Los Angeles, but that’s a slightly different story. The City has never claimed that the information is exempt, they just claim they don’t have it even though it’s transparently obvious to everyone that they do in fact have it, or at least constructively have it in that they commissioned it, paid for it, used it for public purposes, and instructed the custodians of it not to give it up.

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