On August 15, 2018, faced with Rena Leddy’s unhinged intransigence and chronic disregard of the law, I was forced to file a petition asking a judge to require the Fashion District BID to comply with the California Public Records Act. Most of the petitions I’ve filed recently have had only to do with BIDs ignoring my requests altogether1 but this one raises interesting and possibly novel issues of how exemptions to the CPRA are to be interpreted in general and in Los Angeles in particular. I’m represented by Abenicio Cisneros and Karl Olson.2
There are four classes of records at issue in this petition. Those are:3
- Emails between the FDBID and either the South Park BID or DLANC
- Emails in the possession of BID Board president Mark Chatoff
- Emails between the BID and Urban Place Consulting
- Emails in the possession of BID renewal committee chair Linda Becker
Rena Leddy claimed either that such records didn’t exist or that, if they did, the BID could withhold them on the basis of the so-called deliberative process exemption.4 In each of the four cases either there’s independent evidence that responsive records exist or else it defies belief that no records exist. For instance it is not plausible at all that Linda Becker, chair of the BID’s renewal committee, does not possess a single email relevant to the conduct of the BID’s business.5
Thus the petition focuses on debunking the exemption claims as it’s going to be hard for the BID to argue that no records exist. Turn the page for some details and some transcribed excerpts!
First, let’s talk about the putative deliberative process exemption. The idea generally is that under limited circumstances public agencies can withhold records that expose their purportedly candid decision-making process so that they won’t be inhibited by the possibility of being mocked on the internet. It’s not one of the enumerated explicit exemptions to be found in the CPRA, but rather a court-made elaboration of the so-called “catch-all exemption” found in the CPRA at §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.
Note that this section absolutely requires a weighing of public interests against one another: the public interest in withholding a record against the public interest in disclosing it. It is in no way sufficient to just assert the exemption.6 With that in mind, here’s the summary from the petition itself:
44. The California Supreme Court has recognized a deliberative process privilege under §6255 to prevent injury to the quality of executive decisions. See, e.g., California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 169. 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.” Id. at 170 (internal citations omitted).
45. Not every disclosure which hampers the deliberative process implicates the
deliberative process privilege. Under the privilege, as under §6255 generally, an agency claiming the deliberative process privilege must show that the public interest in nondisclosure clearly outweighs the public interest in disclosure. California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 172. Because the deliberative process privilege is subject to balancing, and because an agency must show clear overbalance on the side of nondisclosure to claim the privilege, the deliberative process privilege is a “limited, qualified public disclosure exemption.” See Caldecott v. Superior Court (2015) 243 Cal.App.4th 212, 226. It is insufficient for an agency to merely invoke the policy underlying the deliberative process privilege to withhold records; an agency must make a specific factual showing as to why the privilege is necessary to protect the deliberative process in that instance. Citizens For Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 307.
46. Thus, the BID, in order to justify its withholding under the limited, qualified deliberative process privilege, must show that disclosure of all withheld records would implicate concerns regarding the deliberative process, and that the public interest in nondisclosure clearly outweighs the public interest in disclosure. As will be shown below, Respondent cannot meet this burden.
The idea generally is that everything having to do with the BID’s attempts to influence City action is of great public interest. This kind of material is always of public interest, but it’s possible that in Los Angeles the public interest is heightened and made more weighty due to local ordinance. As you may recall, the Los Angeles Municipal Lobbying Ordinance at §48.01 contains a powerful statement to this effect:
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.
The idea is that insofar as the Fashion District BID has raised a claim of deliberative process to justify withholding records having to do with influencing the City of Los Angeles they’re never going to be able to overcome this extremely strong assertion of the public interest in knowing what they’re up to. You might remember that I first outlined this theory last year here on the blog. This is its first, but almost certainly not last, trial run in the real world.
And most if not all of what I requested is directly related to influencing the City. As you may recall, the process of renewing a BID requires convincing the City of Los Angeles to pass two separate ordinances. Part of the BID consultant’s job is to get those ordinances passed, which means that the UPC emails have that heightened public interest given in the Lobbying Ordinance. As stated in the petition:
53. The BID violated the CPRA when it withheld all emails between itself and UPC subject to the deliberative process privilege. Petitioner requested all emails between the BID and UPC, the firm retained to oversee the BID’s renewal. The BID asserted the deliberative process privilege to withhold all records. As discussed above, the deliberative process privilege requires a significant showing as to each withheld record. Here, the BID cannot meet its burden to show that all emails between the BID and UPC are subject to the deliberative process privilege. It is extremely unlikely that every email and attachment sent between the BID and UPC are predecisional and deliberative. Further, because the communications relate to UPC’s efforts to ensure the City Council passes the ordinances required to renew the BID, the public interest in the communications is significant and the BID cannot show a clear overbalance on the side of nondisclosure.
Also, board member Linda Becker is (or was) the chair of the BID’s renewal committee. There’s essentially no chance that at least some of her unproduced emails have to do with the renewal and therefore with influencing City action. Finally, board chair Mark Chatoff was intimately involved in last year’s despicable BID-managed anti-Skid-Row-Neighborhood-Council effort. For instance, see this March 20, 2017 email. DLANC was also deeply implicated in the anti-SRNC effort as well.. The point is to influence the City to prevent the formation of the SRNC, which again implicates the heightened public interest created by the Lobbying Ordinance.
So that’s roughly what’s happening with the Fashion District BID. The whole petition is excellent. It’s a fine piece of writing and you might well profit from reading the whole thing. And of course, stay tuned for future developments!
Image of Rena Leddy is ©2018 MichaelKohlhaas.Org and is kinda sorta semi-ish cousins with this Rena Leddy ovah heeya.
- Here’s a list:
- Larchmont Village BID — Failure to respond to requests.
- Venice Beach BID — Failure to respond to requests.
- Melrose & Westchester BIDs — Failure to respond to requests.
- Historic Core BID — Messing about with requests for more than 18 months.
- Chinatown BID — Failure to respond to requests.
- Who successfully argued the monumental 2017 case which established the duty under the CPRA of public officials to disclose electronic communications held on their putatively private devices.
- Copies of all the requests, responses, and so on, are appended to the petition itself.
- This putative exemption is discussed in detail below. See also this essential description published by the Reporters’ Committee for Freedom of the Press.
- As implausible as this kind of claim sounds, it’s made over and over again by BIDs. Carol Humiston, who was advising the Fashion District in 2017 when these requests were made, uses it a lot. So does the other main Los Angeles super-genius BID CPRA lawyer, Jeffrey Charles Briggs. On the one hand maybe it’s a viable strategy in the short run because it seems to be harder to litigate the kind of CPRA response where they just say there aren’t any records no matter how stupidly unbelievable that claim might be than the kind where they say there are some records but you can’t have them because reasons. The latter response invites litigation and is evidently easy to lose because the BID just has to be wrong about one exemption in the eyes of the judge and they end up having to pay my lawyers, which is what happened to Jeffrey Charles this summer. The new trend in BID CPRA litigation seems therefore to be not to claim any exemptions at all but just to say that there aren’t any records. However, that too can be taken too far, as we’re evidently going to spend the next few years demonstrating.
- Although of course that’s just what the BID did.
They seem to have been relying on my not pressing the issue. Wrong move, eh?