A Potential Solution To A Perennial Problem At The Nexus Of Los Angeles Business Improvement Districts, The Municipal Lobbying Ordinance, And A Few Widely Abused Exemptions To The California Public Records Act

The life-cycle of a request for documents under the California Public Records Act goes like this: A member of the public asks to see records held by some agency. The agency has ten days1 to respond with a determination which states whether the agency has any such records and, if so, when the agency will be ready to hand them over.2 In general agencies are required to produce all requested records.

However, CPRA lists certain classes of records which are exempt from production. Some of these so-called exemptions are weirdly specific, e.g. at §6253.5 we read:

…statewide, county, city, and district initiative, referendum, and recall petitions … and all memoranda prepared by the county elections officials in the examination of the petitions indicating which registered voters have signed particular petitions shall not be deemed to be public records…

One of the two most important sections of CPRA with respect to exemptions is found at §6254, which consists of innumerable sections, each listing an exemption or a broad class of exemptions. And as completely in favor of absolute government transparency as I am, it’s clear that at least some of these are absolutely justified. For instance, §6254(r) exempts:

Records of Native American graves, cemeteries, and sacred places and records of Native American places, features, and objects … maintained by, or in the possession of, the Native American Heritage Commission, another state agency, or a local agency.

And there are sections which exempt such things as reports on vulnerabilities to terrorism, library circulation records, certain financial data that people are required by law to submit, and so on. These are mostly noncontroversial. Others, however, are much less defensible, at least as applied.

This brings us to the so-called “drafts” exemption, found at §6254(a), which exempts:

Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.

We’ll come back to this after we discuss the other essential section about exemptions, which is §6255(a):

The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.

The point is that if they’re not going to hand over a record, they either have to cite an explicit, enumerated exemption, or else they have to make a case that it’s more in the public interest to withhold the record than it is to release it. This last clause is sometimes called “the catch-all exemption.”3

And, as they will do, courts have over the years interpreted this last bit in various ways, and some of these have been given names. The most famous of these is the so-called Deliberative Process Privilege. Endless metaphorical ink has been spilled on this putative corollary of the catch-all exemption, and you can read some of the best of the discourse in the footnote to this sentence.4

The short version, though, is that courts have decided that it’s in the public interest for agencies to have some privacy in their discussions leading up to making decisions. This, the argument goes, allows them to consider their options candidly without having to worry about people like me mocking them mercilessly for stupid stuff they considered but ultimately rejected.5 This seems fairly unnecessary to me, because if they can’t stand the heat, it’s well-known which room they oughta get outta. But until it’s eliminated by the legislature or the courts, it’s the law of the land and there’s not much to be done about it.

And there are other semi-standard court-made interpretations of §6255(a). The Downtown BIDs, who I’m sure are all cahooting with one another regularly with respect to CPRA-evasion tactics, love to quote what I’m sure is one of these although due to their general ignorance and habitual incoherence6 I haven’t been able to determine exactly what they mean. When citing exemptions explicitly, which they’re required to do, they will often say something like:

  • The benefit to the public in releasing the record does not outweigh the burden of producing it.
  • The benefit does not outweigh the burden.
  • Burden outweighs benefit.
  • Benefit outweighs burden.
  • The benefit is not outweighed by the burden.

If you’re confused note that it’s actually true that the last two examples mean exactly the opposite of the first three. They’re not uncommonly propounded by BIDdies as exemptions, though, even though they cut precisely against their argument. When your daddy’s rich and your momma’s good-looking, it turns out, there’s no need to worry about such legal niceties as having your sentences say what they purport to mean. That will all be sorted out later by the proper authorities.

In any case, it’s not necessary to understand exactly what they’re talking about in order to be sure that these claims are meant to be based on §6255(a). After all, there are only two possibilities: Either an exemption is explicitly stated in the law or else it relies on §6255(a). The word “burden” isn’t in there at all, and the word “benefit” isn’t in there in a relevant context, so QED.

Now, one thing that both the much-abused “drafts” exemption at §6254(a) and these various interpretations of the catch-all exemption have in common is that none of them are absolute. As a prerequisite of a successful invocation, both require a showing that the public interest in withholding the record is greater than the public interest in releasing it. In other words, all such exemption claims can be overcome by a showing that there’s a sufficiently great public interest in having the records released.

It’s my impression, based on limited but real-life experience, that for the most part, arguments that the release of some records is in the public interest are kind of vague. E.g. with that whole damned episode of Rena Leddy and the UPC contract, we had to talk about how the public interest in knowing how much subcontractors are paid with public money is high, how the public interest in knowing whether subcontractors are in violation of various laws is high, and etc.

However,7 at the very beginning of the Municipal Lobbying Ordinance, right there in §48.01(B), the Title and Findings section, there’s a super-explicit statement of the purpose of the law, and it’s given almost entirely in terms of public interest. I’m going to quote the whole thing below because it’s important, but the new idea I had recently is that this is an actual legislative finding that it is in the public interest of the people of Los Angeles to have information about lobbying revealed.

In other words, when writing a demand letter or filing a petition to overcome some wrongheaded BID’s puerile theory about their damnable “deliberative process” or “drafts” or “benefit/burden outweighs burden/benefit” or whatever, as long as the information sought relates to the MLO, which it always does with BIDs, not least because lobbying is one of the core activities of BIDs, it’s no longer necessary to make hand-waving arguments about what’s good for the people of LA. It’s possible actually to quote the Los Angeles Municipal Code.

Will this work better? I don’t know yet of course. Who’s the first victim? Well, we’re trying it out on South Park and their twisted little pipsqueak of an operations director, Katie Kiefer,8 who is notorious in the anti-BID community for her excessive reliance on subcomprehensible lawyourette’s copypasta. Just for instance, feast your hungry eyes on this slab of psychotic word salad tossed off by Ms. Kiefer, putatively in response to a request I made. I’ll let you know if the theory works out, but I will say at least that it did pass the MK.Org legal non-frivolity test, in which I explain it to more than zero lawyers and fewer than all of them laugh.

And now, harken unto the wise and eternal words of the people of the City of Los Angeles as expressed in LAMC §48.01(B) on what exactly is in their public interest:

The following findings are adopted in conjunction with the enactment of this article:

1. City government functions to serve the needs of all citizens.

2. The citizens of the City of Los Angeles have a right to know the identity of interests which attempt to influence decisions of City government, as well as the means employed by those interests.

3. All persons engaged in compensated lobbying activities aimed at influencing decisions by City government must, when so engaged, be subject to the same regulations, restrictions and requirements, regardless of their background, training or other professional qualifications or license.

4. Complete public disclosure of the full range of activities by and financing of lobbyists and those who employ their services is essential to the maintenance of citizen confidence in the integrity of local government.

5. It is in the public interest to ensure that lobbyists do not misrepresent facts, their positions, or attempt to deceive officials through false communications, do not place City officials under personal obligation to themselves or their clients, and do not represent that they can control the actions of City officials.

6. It is in the public interest to adopt these amendments to the City’s regulations of lobbyists to ensure adequate and effective disclosure of information about efforts to lobby City government.

Image of South Park BID Operations Director Katie Kiefer started out as a public record from here and was so vastly improved by me that it is now ©2017 MichaelKohlhaas.Org.

  1. Or 24 in some special circumstances. This is a complex issue in its own right, which, like so many other matters, I hope to write about in the future.
  2. “Hand over” is a term in the vulgate. The specific term of art in CPRAlandia for handing stuff over is “producing” it.
  3. It’s plausible that it’s important to have this in the law, since even the legislature can’t think of every possible reason that releasing some record might cause irreparable harm, but that’s a story for another blog post.
  4. This so-called exemption is explained in great detail by the Reporters’ Committee for Freedom of the Press as part of their excellent and painstakingly detailed guide to CPRA:

    The deliberative process privilege is designed to protect essentially three policy objectives: “First, it protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions. Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that ‘officials should be judged by what they decided, not for matters they considered before making up their minds.'”

    As are some of the criteria for applying it, as determined by various courts (all citations to cases are omitted, but can be found in the original source):

    The key question in every case is “whether the disclosure of materials would expose an agency’s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” To qualify for the privilege the document sought must be both predecisional and deliberative. “To establish that a document is predecisional, an agency must identify an agency decision of policy to which the document contributed [citations omitted], or at least must show ‘that the document is in fact part of some deliberative process’ [citations omitted].” To show that a document is deliberative, a document generally must consist of opinions or recommendations.
  5. Read the previous footnote for a much less biased description of the theory behind this.
  6. All of this is a symptom of white supremacy. No one allows people who are as stupid, as incompetent, and as impressed with their own intelligence and competence in the face of overwhelming adverse evidence as these people are to be in charge of multi-zillion dollar operations without overwhelming confidence in the sad-but-true fact that the legal system and the government tend on a daily basis anyway to consider color of skin and color of money over every other consideration. In a sane world these people would be freelance street sweepers or squeegee artists or something rather than executive directors and directrices.
  7. And now we have finally arrived at the actual point of this post, so if you’ve made it this far, congratulations!
  8. Not yet trying it out via petition, but via demand letter yes. Stay tuned for a few weeks and read all about how it turns out.

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