This is a new piece of an old story. You may recall that in January 2017, right after the Skid Row Neighborhood Council subdivision effort was certified by the Department of Neighborhood Empowerment, Skid Row’s own high priestess of Satan and associated evil deities, that is to say Estela Lopez, made a request under the public records act seeking various bits of information to toss into the wicked potion then, unbeknownst to the side of the angels, bubbling away in her reeking cauldron and with which she and her killer klown krew of slithy minions and halfwit henchies would later put the SRNC into a coma just like Snow Freaking White.1
That’s old news, of course,2 but still interesting. You can read Estela Lopez’s request right here and there’s a transcription of that PDF somewhere down the page in this old post. But what’s new this morning is this just-obtained email from Estela Lopez to CD14 repster José Huizar,3 in which, after a little obligatory sycophancy, she complains to José Huizar that DONE didn’t answer her request on time:
From: Estela Lopez <ELopez@centralcityeast.org>
To: josé huizar <firstname.lastname@example.org>
Cc: Ari Simon <email@example.com>, Martin Schlageter <Martin.Schlageter@lacity.org>
Date: Fri, Jan 27, 2017 at 5:13 PM
Dear Jose, thanks so much for today’s meeting. Below is the request I submitted to DONE on January 17. I have not received a reply. Today represents the 10-day deadline for at least an initial response to a CPRA request.
Have a good weekend. See you on Broadway!
I mean, really. The sheer platonically ideal chutzpah of this woman just boggles.4 She’s complaining to José Huizar that DONE didn’t answer her request within the legal deadline when (a) she herself is one of the City’s worst violaters of the CPRA,5 (b) José Huizar is also essentially incapable of complying with the CPRA,6 (c) most of us don’t have access to our councilmembers to encourage City departments to comply with the CPRA,7 and, worst of all, (d) DONE wasn’t actually in violation of the law at that point, so she really had nothing to complain about.
Not that this kind of clueless exploitation of privilege is anything surprising at this point, but it is what we write about here. Turn the page for a discussion of the technical aspects of the CPRA relating to Estela Lopez’s complaint!
The key section of the law here is §6253(c), which states rather confusingly8 that:
Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. … When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.
You can see here where Estela Lopez picked up that figure of 10 days, but things are complicated, as they often are when it comes to the law. The key complication here is that the 10 days starts “from receipt of the request.” And there is no reliable way to tell when an email is received.9 The California Code of Civil Procedure at §1013 does specify presumptions of receipt, but it doesn’t cover email. The closest thing is fax, in subsection (e), and even then a transmission is not presumed to have been received for two days after it was sent.
Not only that, but Estela Lopez’s initial request was sent at 5:07 p.m., which is after normal office hours. All DONE has to do is to argue that they didn’t see the email till the next day and Estela Lopez has no case. Or they could argue by analogy that emails are like faxes and that they therefore can’t have been presumed to have received it until January 19, 2017.
It’s worth noting, though, that she is counting correctly, even if from the wrong starting day. The California Code of Civil Procedure at §12 states:
The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.
However, that bit about holidays doesn’t include weekends, it seems, at least according to the First Amendment Coalition. So counting according to the law from January 18, 2017 we arrive at a due date of January 28, 2017. That was a Saturday. Despite what the law seems to say, it’s a matter of pragmatic fact that no judge will sanction a public agency for failing to respond on a Saturday. And the law is not what the law says in America, but rather what a court will say it is.
And in closing, I guess I can afford to mention that Estela Lopez did avoid the most popular misreading of §6253(c). She’s aware that it only requires an agency to respond within 10 days and absolutely not to provide records within 10 days. It does require the agency to estimate when the records will be ready, but it provides no remedy if they ignore their estimates, even repeatedly, which is a major, major flaw in the law.
I can’t tell you how often a BID or a City agency has written back to me within the deadline informing me that they’ll have the records ready in six months, only to extend that estimate repeatedly. Shameful but irremediable, it seems. So that’s this morning’s CPRA lesson, friends! Obviously you found it worthwhile, or why would you be reading the last sentence?10
Image of Estela Lopez is ©2018 MichaelKohlhaas.Org and take a look over here if you want to contemplate its genesis.
- And just like Snow White, the coma is temporary, only waiting on a judge’s order to be awakened and rejoin the living world rather than relying on some kind of distasteful monarchist deus ex machina, which is all they had back in the day to provide some measure of what used to pass for justice before we invented the rule of law.
- Full disclosure: Of course, as a matter of principle we here at MK.Org fully and cheerfully concede that even people as wicked as Estela Lopez with purposes as wicked as the purposes of Estela Lopez and for motives as wicked as Estela Lopez’s motives have an absolute right to use the California Public Records Act in whatever sinister ways they can imagine.
- I’m at somewhat of an authorial impasse here. You may have noticed that from time to time I like to attach epithets to the names of people I write about, so e.g. Blair Besten of the Historic Core BID is known to us as a “batty little fusspot” and Rena Leddy of the Fashion District BID is, of course, a “chardonnay-swilling scarf monster,” and so on. That’s all fine, and obviously José Huizar is subject to this trope as well, him being the rapiest councilboy of them all, and so on. But recent developments involving the FBI, search warrants, police dogs, not to mention throwing things at staffers, butt-grabbing brothers, retaliation, adultery, and so on, have made this game somewhat difficult. What, in these latter days, could I possibly call him that’s going to be more denigrating than the stuff that’s probably already in the sealed indictment? I can’t think of anything, so I’m just calling him José Huizar for now, a name that is probably destined to become an epithet-in-itself, like Quisling and Judas e.g. So that’s why I’m giving it a rest for now, if you were wondering. If you weren’t wondering, why are you reading the damn footnotes?
- Interestingly, although the mind is the organ usually spoken of as being the object that gets boggled, it turns out, and I hadn’t known this, that boggling can happen in any number of contexts. One can even boggle intransitively without the bogglement taking any object at all. Fabulous, innit?!
- I haven’t written about this yet because nothing conclusive has happened, but dammit, I can barely count the number of demands my various lawyers have sent these people over the last two years due to their willful intransigence. Eventually the time will be right.
- Again, I haven’t written about it because it’s no better nor worse than every City office. Except, these days, for the Clerk and the LAPD, who have really decided to comply with the law, amazingly. This makes José Huizar’s noncompliance boring because usual.
- In fact for most of us our councilmembers are a huge part of the problem and no part of the solution.
- I think this is one of the most widely misinterpreted sections of the law. Others are more commonly purposely ignored.
- Emphasis on “reliable” here. Of course some email systems support those return receipt things, but many do not and they can’t possibly be considered reliable anyway. Also it’s possible to insert web bugs, which will leave a log entry when an image embedded in the email is downloaded. This is unreliable also for a number of reasons. First of all it only shows the IP address that the image was downloaded to. There are higher standards for an agency being said to have received a request. Like it has to not be some random bad actor reading it after hacking into the agency’s computers. Also these kind of bugs are really easy to thwart by setting one’s email client not to download unattached images without permission. There are probably bunches of other reasons I don’t understand. Oh, but interestingly, the LAPD doesn’t use regular email.
They have an integrated platform called Groupwise, which actually does provide a reliable receipt datestamp by appending it to the metadata when a message is opened.
- OK, hate reading. Fine.