One of the biggest flaws in California’s Public Records Act is that the various local agencies that constitute our government are trusted to search their own records, decide without oversight what’s responsive to requests and, worst of all, decide what’s exempt from production. My general feeling about BIDs and record searches is that they purposely don’t find everything, about their exemption claims that they’re mostly lying.
Unfortunately, without a lawsuit, it’s not realistically possible to get a look at records for which they’ve claimed exemptions.1 Hence it’s not usually possible to check how closely this feeling corresponds to reality. However, due to an interesting confluence of events, I recently obtained a number of emails between various people at the Hollywood Media District BID for which their lawyer, Jeffrey Charles Briggs,2 had claimed exemptions, thus making it possible to compare his claims with the actual records. Unsurprisingly the exemption claims turned out to be pure and unadulterated nonsense. You can find the emails and some analysis after the break, but first I’m going to ramble on a little about some tangentially related issues.
Like many policies, this default assumption of honesty on the part of local agencies no doubt works when it works, but when it comes to the BIDs of Los Angeles, who are staffed, for the most part, with the most unscrupulous bunch of pusillanimous chiselers ever to engorge their bloated reeking tummies at the public piggie trough, it doesn’t work at all.3 They lie, they confabulate, they delude themselves and others, and generally display utter and overweening contempt for the rule of law.4
And nowhere does their misbehavior reach a more fevered pitch than in the use of the so-called “deliberative process” exemption to the CPRA. In short, this is an exemption that courts have built up out of the “catch-all” exemption to CPRA, found at §6255(a), which says:
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.
Essentially, a claim of deliberative process is a claim that the agency needs some privacy to discuss decisions that its staff are making.5 You can, I’m sure, see the potential for abuse here. But there’s some solace, theoretical though it may seem, to be found in the fact that the law requires (“shall justify”) the local agency to not only have but also to actually give genuine fact-based reasons for why it’s better for the public to have the record withheld than it is to have it released.
This, as I said, is nice in theory, but in practice it’s ignored by BIDs. However, I’m beginning to think that it’s NOT ignored by courts. Some recent experience has led me to believe that a court will order the respondent, that is to say the recalcitrant, mendacious, record-withholding local agency, to justify most of its exemption claims item by item.6
In response to just such an order, recently imposed by the Hon. Mary Strobel, self-proclaimed Hollywood superlawyer Jeffrey Charles Briggs not so very long ago filed this declaration and privilege log listing a bunch of emails that he and his crooked clients over at the Hollywood Media District BID were claiming were exempt from production.7
And, amazingly, at some point prior to that Jeffrey Charles had produced eight of these emails to me. This unprecedented8 gaffe makes it possible, for the first time9 to actually evaluate the validity of a claimed exemption. And it doesn’t look good, friends. You can read all the material here at Archive.Org, or read on for item-by-item descriptions.
First, here’s what Briggs said about one of these exemption claims:
2/8/16 Goldman/Schechter email attaching draft Exec C’ee mtg agenda DRAFT/DELIBERATIVE PROCESS DISCUSSION OF WHAT TO INCLUDE AND NOT INCLUDE.
Now read the actual email. It’s from Laurie Goldman to Lisa Schechter and Jim Omahen and it says, in its entirety:
Please see attached….call me if you have any questions. I’d like to see the final agenda before it is posted.
According to the essential guide to the deliberative process exemption published by the Reporters’ Committee for the Freedom of the Press,10 the key question is always:
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.
So really, how does this apply to Laurie Goldman’s email to Jim Omahen telling him that a draft copy of an agenda is attached? There’s no decision-making going on here to be exposed, providing even more evidence that Lisa Schecter and Jeffrey C. Briggs habitually lie about how, why, and if records in their possession are exempt.
Ah, but you may have noticed that there is an attachment to this email. Here it is. It’s a draft agenda, which also has nothing deliberative about it. However, you may well have noticed that deliberative process isn’t the only exemption claim that Briggs made for this item. He also declared that the infamous “drafts exemption,” found at §6254(a), applies. This oft-abused nubbin states that the following are exempt from release:
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.
So take a look at the attachment if you can.11 There’s nothing deliberative going on in there, but there is this fascinating note from Laurie Goldman to Schechter/Omahen:12
(to discuss, but NOT TO INCLUDE ON THE AGENDA)
1. Code of Ethics/Document Retention/Whistle Blower
2. Increase BID Boundaries
3. Assessment Increase
This is super-interesting that Laurie Goldman was planning in advance to discuss matters not included on the agenda. It’s super-duper-interesting in the context of the Brown Act at §54954.2(a)(3), which states unequivocally that:
No action or discussion shall be undertaken on any item not appearing on the posted agenda
Also note that the drafts exemption requires a balancing test between the public interest in having the information revealed and the public interest in not disclosing it. It’s pretty hard to imagine any public interest in nondisclosure outweighing evidence that Laurie Goldman is a criminal. Thus, again, the exemption is exceedingly not applicable.
Anyway, I was planning to go through all of these emails and explain why the claimed exemptions are completely untenable. But on reading through the rest of them it’s become clear that they’re not really that different from one another. I’m interested, but I realize this is probably nerdview, so I think I’m just going to skip it. If you’re interested, though, please take a look at the whole damn collection.
And what does this set of revelations mean for the future? Well, my feeling is that since one judge has shown herself to be willing to force detailed explanations of exemption claims, and since we now have pretty solid evidence that BIDs’ exemption claims, at least those made by Attorney Briggs, are essentially bogus, the BIDs are going to turn away from claiming any exemptions at all13 I’m guessing that once the flow of documents starts up again around here14 we will see very few exemption claims and more claims that exhaustive searches were done when they obviously were not. Or at least that’s what I’m guessing. Tah, friends!
- Even with a lawsuit it seems to be extraordinarily hard to convince a court that they’ve failed to search adequately. I suspect we’ll be seeing a lot more of this tactic in the future. More details soon!
- Consistently, by the way, identified as one of the best lawyers in America, which, me having seen the guy’s performance at the bar, certainly makes me wonder what the competition is like. On the other hand, Jeffrey Charles is a big Jeff Sessions fan, so maybe by those warped standards he actually is super!
- Thinking mostly of you, Blair Besten, but the rest of your downtown colleagues are no better. It doesn’t work with public agencies in Los Angeles, either. For instance, the office of Eric Garcetti has no shame whatsoever about flouting the CPRA. I haven’t had time to write up any of the CPRA-related horror stories I have lived through thanks to L.A.’s Mayoral Bobblehead Doll with what passes for sentience at 200 N. Spring Street, but you’ll be shocked when I finally do. They’re horrible indeed. He’s a liar, his lawyer’s a liar, his freaking secretary’s a liar. All of them, liars. But I digress.
- Except, of course, for the incomparable Laurie Hughes of the Gateway to LA BID, who doesn’t do any of these things. But then she doesn’t break the law on a regular basis either, so she’s got nothing to hide. It’s all interlinked. Of course, I thought the same thing about Rena Leddy before she turned out to be just another damn criminal and flouter of the laws of God and of California like her equally gangsta sister in crime and, no doubt, headed for the same fate.
- The best guide I know to this quintessentially bullshit common law nonsense is to be found in the Reporters’ Committee for the Freedom of the Press explanation of the matter. The whole thing is worth reading, but, in short, this malignant excrescence on the CPRA has three purposes, according to Times Mirror v. Superior Court (1991), quoted therein:
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.’
- I haven’t written about these events yet because there’s still a little more to be shaken from the sieve. Look for full and detailed revelations coming soon, though!
- How the judge ended up responding to this pleading is a long and interesting story with a very happy ending that’s not quite fully coalesced yet. When it’s all settled and done with you’ll read all about it right here on the blog!
- I mean in my experience, anyway.
- Still talking about my experience here.
- Again quoting Times Mirror.
- I apologize if you’re reading on a phone for the fact that it may be difficult to read this MS Word file. But then again, if you’re reading on a phone it’s possibly hard to read this footnote.
- Yellow highlighting in the original.
- Except for the so-called “per se” exemptions, like attorney client privilege, which don’t require justification. I’m guessing they will continue to use those claims.
- Probably you’ve noticed that I’m getting very few records from BIDs these days. This is likely going to change very soon. (That’s “very soon” in lawyer time, which doesn’t mean “very soon” or even “soon” to non-lawyers.) More news when I have it.