Overview

1. In an effort to monitor the workings of Respondent and other BIDs, and
disseminate his findings on his website, Petitioner has utilized the CPRA. The materials on Petitioner’s website are available for free to the public. He has been quoted in the Los Angeles Times, his website linked to in various articles, and he has been contacted by documentary film makers, public interest attorneys, and students from Boalt Hall’s Policy Advocacy Clinic who have utilized information on his website for their projects.

2. Petitioner, through the five CPRA requests at issue in this petition, seeks to understand the ways in which Respondent’s staff and board of directors influence City officials with respect to pending legislation and other City matters.  For instance, Respondent’s Executive Director, Blair Besten, has lobbied the City on behalf of her board with respect to “DTLA 2040” and other planning and development matters.  Petitioner also seeks to understand the means by which Ms. Besten collaborates with the staff of other Downtown BIDs to be able to present a unified set of concerns to City staff with whom they interact.

3. At the time petitioner requested communications between Respondent and its consultant, in June 2017, the BID was undergoing its renewal process, pursuant to the Property and Business Improvement District Law of 1994, which involved advocating for the passage of two key ordinances.  At that time, Petitioner was seeking to understand the means employed by Respondent and its consultant to influence the City with respect to this municipal legislation.  This process is now almost complete, with one of the two ordinances having been passed in May 2018 and the other scheduled for late Fall 2018, almost certainly before all responsive records will have been made available. 

4. The Municipal Lobbying Ordinance, LAMC § 48.01 et seq., explicitly states the weighty public interest in understanding such matters: “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.” LAMC § 48.01(B)(2). “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.” LAMC § 48.01(B)(4). Respondent’s failure to timely comply with the CPRA has led to a valuable opportunity lost for transparency and democratic oversight, as Respondent won’t renew again for another five years.

5. Not only has Respondent failed to timely reply, Respondent has endeavored to make Petitioner’s access to the records unreasonably difficult by repeatedly cancelling appointments to review the records, requiring review of records in a dimly lit room with no chair or table, printing copies in size 4 font, and only permitting two hours per appointment to review records.

6. Respondent became even less compliant with its statutory obligations under the CPRA after Petitioner published emails, obtained through the CPRA, exposing Respondent’s back-room efforts to defeat the creation of a Skid Row Neighborhood Council. As explained in paragraph 16, below, both The LA Weekly and Curbed LA covered the debacle, linking directly to Petitioner’s website.

7. After Respondent hired attorney Jeffrey C. Briggs in October 2017 to handle CPRA requests, its non-compliance with the CPRA became more egregious. It has been over a year and a half and Respondent has not completed the production of any of the requests at issue in this petition. Mr. Briggs promises documents but then fails to produce them and ignores status requests for months on end. His strategy to unreasonably delay the production of requested records is to ignore Petitioner’s emails, claim repeated technological problems, and to send numerous duplicative and non-responsive records with almost every batch of records he produces.

8. Notwithstanding the public’s strong interest in these issues, and despite the need for openness from private, non-profit corporations providing public functions and municipal services, Respondent has disregarded its legal obligations and restricted public access to information. Petitioner seeks immediate production of withheld records and challenges all of Respondent’s claimed exemptions.

BACKGROUND OF CPRA REQUESTS

1/24/2017 Request

9. On January 24, 2017, Petitioner sent a CPRA request to Respondent’s Executive Director, Ms. Blair Besten seeking:
“All emails between you and anyone at lacity.org or any of its subdomains from between January 1, 2016 and today. I would like to take a look at these emails in their native electronic formats as well as all attachments to them, also in their native electronic format.” A true and correct copy of Petitioner’s January 24, 2017 email is attached as Exhibit A.

10. Respondent failed to respond to these requests within 10 days as required by the CPRA § 6253(c). On February 10, 2017, Respondent replied stating the request:
“is not specific or focused and seeks a volume of documents which will require significant time to search evaluate and produce. We cannot search for ‘any of its subdomains’ which is hopelessly vague…” Respondent also stated that “[e]fforts are being made to provide these to [Petitioner] as quickly as possible.” A true and correct copy of Ms. Besten’s February 10, 2017 email is attached as Exhibit B.

11. After a few status requests from Petitioner, on February 23, 2017, Respondent emailed Petitioner regarding claimed exemptions and expressing a need for additional time: “After initial review, some of the records you request are exempt from disclosure under the CPRA because they contain proprietary information, deliberative process/privileged information, or personal contact and private information, and the disclosure would invade the right to privacy of an unrelated third party. We need to continue to identify/search for and collect these records. When the BID can segregate the exempt information, the records will be made available to you.” A true and correct copy of Ms. Besten’s February 23, 2017 email is attached as Exhibit C.

12. From February 23, 2017 through May 4, 2017, Petitioner and Respondent exchanged a series of emails in which Petitioner sought to review the records. Finally, on May 19, 2017, Respondent produced some responsive records to Petitioner. Ms. Besten, however, enacted a Kafkaesque series of administrative hurdles and roadblocks including printing some documents in illegibly small font, putting Petitioner in a dimly lit room with no table or chairs to review documents, not allowing Petitioner to bring his own flash-drive, requiring Petitioner to mail a check sent in advance for the cost of a flash-drive, and providing time for the check to clear before allowing Petitioner to inspect the records, and refusing to transfer files electronically, for example via Dropbox, as she had done in the past. While Petitioner was at Respondent’s office, Ms. Besten even gave another requestor free copies of records in front of Petitioner but did not allow Petitioner to have copies for free. A true and correct copy of the email exchange between Petitioner and Ms. Besten is attached as Exhibit D.

13. Furthermore, its redactions were not well taken. Ms. Besten printed out records on which she only redacted email addresses and phone numbers for real estate agents, Respondent’s board of directors, and individuals from the City and other BIDs. However, she also produced multiple records where these same email addresses and phone numbers were unredacted.

14. Respondent also continues to improperly withhold records claiming they contain proprietary information and deliberative process/privileged information.

Documents Reveal Respondent’s Collusion in Undermining the Skid Row Neighborhood Council

15. After Respondent produced records responsive to the January 24, 2017 request, Petitioner published them to his website. These documents exposed how Respondent and other Downtown BIDs worked behind the scenes to defeat the Skid Row community’s attempt at forming its own neighborhood council. Many Skid Row residents participated in the Skid Row Neighborhood Council (“SRNC”) elections that took place in April 2017 because they wanted a government body that would increase residents’ voices in the decisions being made about development and displacement in their neighborhood. The SRNC would have been a neighborhood council in which homeless and low-income residents would have had multiple designated board seats. Skid Row has historically been within the jurisdiction of neighborhood councils dominated by business representatives and property-owners.

16. Before the election took place, the BIDs participated in the organization “United Downtown LA, LLC) (“United DTLA”) to oppose the formation of the SRNC. United Downtown LA hired former Los Angeles City Attorney Rocky Delgadillo as a lobbyist and set about preventing the formation of the SRNC. After a close and controversial election, which is now the subject of litigation, the formation of the SRNC was defeated. The documents Petitioner has obtained from Respondent through the CPRA were cited in the LA Weekly1 and Curbed Los Angeles, in articles covering the loss of the SRNC election. These publications not only cite the documents, they link directly to his website.

17. Once these articles were published in June 2017, exposing Respondent’s collaboration with back room efforts to defeat the SRNC, Respondent’s compliance with the CPRA became even more abysmal.

2/22/17 Requests

18. On February 22, 2017, Petitioner submitted two CPRA requests to Respondent. The first February 22, 2017 request (“City Emails”) asked Ms. Besten for:
All emails between anyone at the HCBID, staff or board, and anyone at the City of Los Angeles including LAPD from between January 25, 2017 and February 22, 2017. I would like to take a look at these emails in their native electronic formats as well as all attachments to them, also in their native electronic formations. A true and correct copy of Petitioner’s first February 22, 2017 email is attached as Exhibit E.

19. Petitioner’s second February 22, 2017 request (“StreetPlus Emails”) to Ms. Besten stated:
I’d like to take a look at all emails between anyone at the HCBID, staff or board, and anyone at StreetPlus from January 1, 2016 through January 31, 2017. I would like to take a look at these emails in their native electronic formats as well as all attachments to them, also in their native electronic formats. A true and correct copy of Petitioner’s second February 22, 2017 email is attached as Exhibit F.

20. Respondent failed to respond to these requests within 10 days as required by the CPRA § 6253(c). Therefore, Petitioner, on March 8, 2017, asked Ms. Besten for a status report. A true and correct copy of Petitioner’s March 8, 2017 email is attached as Exhibit G.

21. On March 10, 2017, Ms. Besten responded claiming numerous exemptions, “proprietary information, deliberative process privileged information, personnel information, deliberative process privileged information, personnel information, and personal contact and private information that disclosure of which would invade the right to privacy of unrelated third parties.” She also stated a need for a 14-day extension to “identify, search for, and collect such records,” and explained how the records could be reviewed or produced, including the cost of producing them on a flash drive. True and correct copy of Ms. Besten’s March 10, 2017 email is attached as Exhibit H.

22. On March 24, 2017, Ms. Besten emailed Petitioner, claiming more than a 14-day extension would be needed, reiterating the claimed exemptions, as well as the copying and production costs. A true and correct copy of Ms. Besten’s March 24, 2017 email is attached as Exhibit I.

23. On May 4, 2017, Respondent emailed Petitioner indicating that the materials responsive to both his 2/22/17 requests were ready to inspect. A true and correct copy of Ms. Besten’s May 4, 2017 emails are attached as Exhibit J.

24. On May 19, 2017, Petitioner, accompanied by acquaintance and Downtown Los Angeles community activist Katherine McNenny, went to an appointment with Ms. Besten to inspect records responsive to his January and February requests. To his surprise, Respondent produced nothing responsive to his February requests.

25. On June 26, 2017, Petitioner asked for a response to his two February 2017 requests. A true and correct copy of Petitioner’s June 26, 2017 email is attached as Exhibit K.

26. On July 7, 2017, Ms. Besten responded, “[r]egarding the requests from the 22nd of February, our apologies, they must have gotten lost in the mix” and offered to mail them to him. A true and correct copy of Ms. Besten’s June 26, 2017 email is attached as Exhibit L.

27. Ms. Besten did not mail the records and, as explained further below, in paragraphs 36 to *55, Respondent continues to improperly withhold records responsive to both of Petitioner’s February 22, 2017 requests.

6/26/17 Request

28. On June 26, 2017, Petitioner requested the following records from Respondent:
(1) All emails between (to/from/cc/bcc) anyone at the HCBID and any of the following people, email addresses, and/or domains… from January 1, 2016 through whenever you comply with this request:[list of 27 email addresses and domains of Downtown BIDs, developers and businesses]; (2) All emails between anyone on the staff of HCBID and anyone at the City of Los Angeles including LAPD from February 23, 2017 through whenever you comply with this request…; (3) Any emails with the word “delijani” in them if not already included in the previous categories… from January 1, 2016 to whenever you comply with this request; (4) the BID’s contract with your renewal consultant and any communications between anyone (staff and/or board) at the BID and anyone at the renewal consultant.” He asked for all emails in EML format with attachments in their native formats. A true and correct copy of Petitioner’s June 26, 2017 email is attached as Exhibit L.

29. Respondent failed to respond to this request within 10 days as required by the CPRA § 6253(c). Ms. Besten replied on July 6, 2017, claiming the following exemptions, “proprietary information, deliberative process/privileged information, or personal contact and private information.” She also said Respondent would need an additional 14 days and that when the BID could “segregate the exempt information,” they would make them available. A true and correct copy of Ms. Besten’s July 7, 2017 email is attached as Exhibit M.

30. On July 21, 2017, Petitioner and Ms. Besten agreed he would inspect records from his February requests and June request on August 2, 2017. Ms. Besten claimed additional basis for withholding records including “drafts, notes, or interagency or intra-agency memoranda… the records are not related to the conduct of the BID’s business, [] the benefit to the public does not outweigh the burden of disclosure.” A true and correct copy of Ms. Besten’s July 21, 2017 email is attached as Exhibit N.

31. On July 31, 2017, Ms. Besten emailed Petitioner, cancelling his appointment and stating that all of the materials would not be ready until September. She offered to mail him some of the records that week. A true and correct copy of Ms. Besten’s July 31, 2017 email is attached as Exhibit O.

32. Petitioner, having already been told that the records responsive to his February requests were ready assumed Ms. Besten’s email referred to records responsive to his June request so he let her know he would keep the appointment to inspect the February materials.

33. On August 1, 2017, Ms. Besten unilaterally cancelled Petitioner’s appointment for the next day. She claimed the requested material would be mailed to him no later than that Friday. A true and correct copy of Ms. Besten’s August 1, 2017 email is attached as Exhibit P.

34. On August 5, 2017, having heard nothing more from Respondent, Petitioner asked for a status update and asked to come in to inspect the records. Ms. Besten did not respond. A true and correct copy of Petitioner’s August 5, 2017 email is attached as Exhibit Q.

35. Having received no records and no update, on September 29, 2017, Petitioner again asked Ms. Besten for a status report and asked her to make the materials immediately available. She did not respond. A true and correct copy of Petitioner’s September 29, 2017 email is attached as Exhibit R.

10/1/17 Attorney Jeff Briggs Begins Responding On Behalf of Respondent

36. On October 10, 2017, Mr. Briggs notified Petitioner that Mr. Briggs was representing Respondent with regards to Petitioner’s CPRA requests and that he anticipated “further production of records to resume by the end of the month.” A true and correct copy of Mr. Briggs’ October 10, 2017 email is attached as Exhibit S.

37. On November 1, 2017, having heard nothing further and having not received any documents by the end of October as promised, Petitioner emailed Mr. Briggs to ask about the status of his requests. Mr. Briggs did not respond. A true and correct copy of Petitioner’s November 1, 2017 email is attached as Exhibit T.

38. On November 26, 2017, still having received no response from Mr. Briggs, Petitioner sent another status request. A true and correct copy of Petitioner’s November 26, 2017 email is attached as Exhibit U.

39. On December 9, 2017, having received no response from Mr. Briggs for two months, Petitioner sent Mr. Briggs yet another status request. A true and correct copy of Petitioner’s December 9, 2017 email is attached as Exhibit V.

40. On December 11, 2017, Mr. Briggs finally responded. He produced 19 records which he claimed were responsive to the February and/or June 2017 requests. In fact, not only were they not responsive to either, they were responsive to Petitioner’s January 2017 request and Ms. Besten had already produced them seven months earlier, in May 2017. When Petitioner notified Mr. Briggs of the error on December 11, 2017 Mr. Briggs responded, “You may get some material outside the dates requested.” He also admitted he didn’t have all the records, although he had purportedly been working on the matter since early October 2017and Ms. Besten had stated the materials were ready as far back as July 2017. A true and correct copy of the email exchange between Petitioner and Mr. Briggs is attached as Exhibit W.

41. On December 15, 2017, Mr. Briggs sent Petitioner another 19 records, claiming these were responsive to the February and/or June 2017 requests. In fact, only 1 was responsive. As with the records he had sent a few days earlier, the other 18 records were responsive to Petitioner’s January 2017 request and Ms. Besten had already produced them seven months earlier, in May 2017. Mr. Briggs also promised Petitioner would get “about 1000 more emails next week.” As he has done since 2015 when representing the Hollywood Media District BID, Mr. Briggs claims “technical issues” as the reason for delay and as an excuse for producing a large volume of unresponsive records. On December 15, 2017, Mr. Briggs also promised “about 1000 more emails next week.” A true and correct copy of Mr. Briggs’ December 15, 2017 email is attached as Exhibit X.

42. On December 20, 2017, Mr. Briggs sent Petitioner 54 records. Most were automated announcements from the Los Angeles City Clerk. While responsive, they seem selected for banality. A true and correct copy of Mr. Briggs’ December 20, 2017 email is attached as Exhibit Y.

43. On December 20, 2017, Petitioner responded, asking Mr. Briggs to please not mis-label the subject line of his emails with the wrong request date. He further requested Mr. Briggs wait until he had the response to each request completed and not send the promised 1,000 emails “in mis-labeled batches at a rate of about 12 per week [as] it’s going to take until 2019 and no one will actually understand what happened.” A true and correct copy of Petitioner’s December 20, 2017 email is attached as Exhibit Z.

44. Mr. Briggs did not send 1,000 records the week of December 18, 2017 as promised. Over a month later, on January 30, 2018, Mr. Briggs emailed Petitioner, “[a]lmost done with review. I will be gone a few days and you should have late next week.” A true and correct copy of Mr. Briggs’ January 30, 2017 email is attached as Exhibit AA.

45. Again, Mr. Briggs failed to produce records as promised. He did not send any records the week of February 5, 2018. It was not until February 22, 2018, exactly a year after Petitioner made his February 22, 2017 requests, that Petitioner sent another 23 of the promised 1,000 emails. And, of the 23, only 8 were responsive. A true and correct copy of Mr. Briggs’ February 22, 2018 email is attached as Exhibit BB.

46. On February 22, 2018, Petitioner responded, again notifying Mr. Briggs of the difficulty in keeping track of the dribble of records he was producing and asked that he wait to send until the entire response was prepared. A true and correct copy of Petitioner’s email is attached as Exhibit CC.

47. On March 2, 2018, Mr. Briggs sent Petitioner 36 records from Respondent in a response to a CPRA request Petitioner had made to a different BID. When Petitioner notified Mr. Briggs, Mr. Briggs stated, “I apologize for having included the Besten emails with the Media District [BID]’s provision of records. Be sure to save them for the Historic Core BID response which is nearly done.” (Emphasis added). All of the 36 records were automated City of LA spam. A true and correct copy of Mr. Briggs’ March 2, 2018 email is attached as Exhibit DD.

48. On April 30, 2018, Mr. Briggs stated that the requested records were coming that same week or the following week “at latest.” A true and correct copy of Mr. Briggs’ April 30, 2018 email is attached as Exhibit EE.

49. On May 3, 2018, Mr. Briggs reported he had a family emergency and couldn’t send records that week. A true and correct copy of Mr. Briggs’ May 3, 2018 email is attached as Exhibit FF.

50. On May 10, 2018, Mr. Briggs claimed to be attempting to send a test message but did not send any records. Mr. Briggs again claimed technical difficulties, “[t]hese logistics are driving me insane.” He also tried to blame his client for Respondent’s failure to produce the records, “I will keep working on it with all my clients who don’t use Outlook!” A true and correct copy of Mr. Briggs’ May 10, 2018 email is attached as Exhibit GG.

51. On May 11, 2018, Mr. Briggs went back to his usual refrain, claiming he would send records “next week.” A true and correct copy of Mr. Briggs’ May 11, 2018 email is attached as Exhibit HH.

52. On May 17, 2018, Mr. Briggs said he had “one more glitch to overcome” and that he would send the files…. “next week.” A true and correct copy of Mr. Briggs’ May 17, 2018 email is attached as Exhibit II.

53. At the end of May 2018, Mr. Briggs finally sent Petitioner records in response to four of his requests. However, these productions were not complete and contained an unreasonable amount of duplicative and non-responsive files.

54. Regarding Petitioner’s first February 22, 2017 request for City Emails, on May 29, 2018, Mr. Briggs sent Petitioner 48 records. However, only 8 of the records were responsive, the rest were either duplicative or fell outside the requested date range. A true and correct copy of Mr. Briggs’ May 29, 2018 email is attached as Exhibit JJ.

55. Regarding Petitioner’s second February 22, 2017 request for StreetPlus Emails, on May 29, 2018, Mr. Briggs sent Petitioner 68 files. Of those, 13 were duplicates and only 40 were within the requested date range. The response is also missing the majority of the shift updates StreetPlus sends to Respondent three times a day. A true and correct copy of Mr. Briggs’ May 29, 2018 email is attached as Exhibit KK.

56. Regarding Petitioner’s June 26, 2017 request, on May 29, 2018, Mr. Briggs sent Petitioner 156 files; 81 of these files were duplicates. Regarding this same request, on May 30, 2018 Mr. Briggs sent 690 files, 433 of which were duplicates, and on May 31, 2018 he sent 8 more files. A true and correct copy of Mr. Briggs’ May 29, 2018 email is attached as Exhibit LL.

57. Respondent continues to improperly withhold records responsive to the above requests.

10/26/17 Request

58. On October 26, 2017, Petitioner emailed Mr. Briggs requesting the following records from Respondent: “all records in possession of the HCBID involving the Historic Downtown Farmer’s Market (“FM”) as follows: (a) contracts, MOUs, [etc], (b) all emails between anyone on the staff of the BID and anyone at SFMA from January 1, 2015 through whenever you run the search… (c) all intra-staff emails and emails between staff and board of directors that mention or are to/from/cc/bcc Ian.. the manager of the FM.” Petitioner made this CPRA request to follow-up on a complaint of racial bias against a vendor at the FM. A true and correct copy of Petitioner’s October 26, 2017 email is attached as Exhibit MM.

59. On November 6, 2017, Mr. Briggs stated he would provide records by November 30, 2017. A true and correct copy of Mr. Briggs’ November 6, 2018 email is attached as Exhibit NN.

60. On December 15, 2017, Mr. Briggs sent Petitioner 10 records. A true and correct copy of Mr. Briggs’ December 15, 2018 email is attached as Exhibit OO.

61. On May 9, 2018, Mr. Briggs sent Petitioner 114 files; 35 were duplicates. Mr. Briggs stated he would produce more “this week” but has not sent anything since. A true and correct copy of Mr. Briggs’ May 9, 2018 email is attached as Exhibit PP.

62. Respondent is improperly withholding the remainder of the responsive records.

63. Respondent, through the dilatory and unlawful tactics of its executive Director, Ms. Besten, and its attorney, Mr. Briggs, has grossly violated the CPRA.

…

REQUEST FOR RELIEF

5. Government Code Sections 6259(a) and 6259(b) authorize the Court to compel
Respondent to release the requested documents.

THEREFORE, Petitioner respectfully requests that:

1. This Court issue a peremptory writ of mandate directing Respondent to immediately conduct a diligent and comprehensive search for the requested records, and to thereafter promptly provide Petitioner the requested records or, in the alternative, an order to show cause why these public records should not be ordered disclosed;

2. The Court set “times for responsive pleadings and for hearings in these proceedings… with the object of securing a decision as to these matters at the earliest possible time,” as provided in Government Code Section 6258;

3. The Court enter an order declaring that Respondent has violated the CPRA by its refusal to release the public records sought by Petitioner’s requests, and by its failure to promptly respond to, and assist with, Petitioner’s requests;

4. The Court enter an order declaring that for all future CPRA requests from Petitioner to Respondent, Respondent shall produce all responsive documents, subject to properly claimed exemptions, within 30 days, absent a showing of extraordinary hardship;

5. The Court enter an order awarding Petitioner his reasonable attorney’s fees and costs incurred in bringing this action, as provided in Government Code Section 6258, Code of Civil Procedure Section 1021.5; and California’s private attorney general doctrine,

6. The Court award such further relief as is just and proper.