Everybody knows about those damn planters in Venice, but we’re just beginning to learn the depth of the City’s complicity with the angry housedwelling planter-placers. And fairly recently I obtained some emails that proved that Mike Bonin’s staff, if not Bonin himself, have been very complicit indeed, which led me to file a complaint with the City Ethics Commission against one of them, Taylor Bazley.1
I obtained those emails by accident, in response to a request to the LAPD that I made for a fairly different reason, but I have actually been trying to get planter-related stuff from CD11 at least since December 2018 and have been completely, utterly, thoroughly, and even literally ignored by Mike Bonin’s staff since then. They have not produced a single record in response to my requests.
And, as you surely know by now, the legislature has left the people of California only one remedy to enforce their rights under this law, and that is to file a petition asking a judge to order the neglectful ones to get it together and comply. So that, this very day, is what I did with our friends at CD11. You can get a copy here, powerfully written by the incomparable Anna von Herrman, and there’s a transcription below.
Basically there are three classes of requests. First I asked for emails between CD11 staff and various suspects in the planter-placing and other anti-homeless psychopathy with some names culled from especially angry NextDoor comments. These included both Mark Ryavec and George Francisco.
Next, as part of a series I was working on at the time, I asked for a list of all official CD11 Twitter accounts and also lists of users blocked or muted by those accounts. And finally, I asked for data from CD11’s use of the so-called Romulus Constituent Services software, which someone had told me Bonin used to talk to people outside of more predictable channels like email.
This last request Krista Kline, Mike Bonin’s deputy chief of staff in charge of something shady, refused to fulfill, claiming that it was “overly voluminous,” and the others she initially promised to produce records in response to but then did not.2 All of this material is of great, practically incalculable, public interest with respect to not only the planters but also for understanding how the City decides which encampments to sweep, and many other things besides. So stay tuned for updates on events, and read some lengthy selections from the petition below.
INTRODUCTION
1. This is a petition to enforce the California Public Records Act (“CPRA”) against Respondent and Defendant (“Respondent”) City of Los Angeles (“the City”). Petitioner and Plaintiff (“Petitioner”) Mike Kohlhaas submitted five requests to the City for public records related to Los Angeles City Council District 11’s (“CD11”) suspected involvement in the displacement of homeless people and its activity on certain electronic platforms—all clearly-identifiable records subject to mandatory disclosure under the CPRA. Despite Petitioner’s repeated attempts to obtain these records, Respondent has ceased communication with Petitioner and failed to provide any records in response to Petitioner’s requests. Respondent has thereby violated the CPRA and the California Constitution.
2. The public’s access to information is obstructed by Respondent’s blatant disregard for transparency and manifest violation of the CPRA. By this Petition and Complaint (“Petition”) and pursuant to the Code of Civil Procedure §§ 1060 and 1085, et seq. and Government Code §§ 6250, et seq.,1 Petitioner respectfully requests from this Court (1) a writ of mandate to command Respondent to disclose all non-exempt information Petitioner requested and thereby comply with the CPRA; and (2) a declaration that Respondent’s conduct denying access to public records fails to comply with the CPRA.
JURISDICTION AND VENUE
3. This Court has jurisdiction under §§ 6258, 6259, Code of Civ. Proc. § 1085, and Article VI, Section 10 of the California Constitution.
4. Venue is proper in this Court. The records in question, or some portion of them, are situated in the County of Los Angeles, § 6259; the acts or omissions complained of occurred in the County of Los Angeles, Code of Civ. Proc. § 393; and Respondent is located in the County of Los Angeles, Code of Civ. Proc. § 395.
PARTIES
5. Petitioner is a resident of Los Angeles, holds a PhD in mathematics, works as a mathematics professor at a local college, and is an open records activist. Petitioner utilizes public records requests to investigate and understand the activities of the Los Angeles City government. He publicizes his findings to the public through blogging and community events. Information Petitioner has uncovered via CPRA requests has assisted the media, academic researchers, and the public at large in understanding local government in Los Angeles. For example, the Los Angeles Times recently quoted Petitioner regarding the City’s politicized response to homelessness; the newspaper used records that Petitioner uncovered through CPRA requests to confront Mayor Garcetti’s office regarding its directive to sweep a homeless encampment in order to make way for a planned political event. Petitioner’s research regarding the thwarted formulation of a Skid Row Neighborhood Council, uncovered largely through public records requests, was recently featured as part of an exhibit at the Los Angeles Poverty Department Museum. Documentary filmmakers have used records Petitioner uncovered to inform their ongoing production of a film on the Greater West Hollywood Food Coalition and the Hollywood Media District Business Improvement District. Additionally, Petitioner has empowered the public to use the CPRA effectively for both research and civic activism by publishing a guide to the practical use of the CPRA in the City of Los Angeles. Petitioner is a member of the public within the meaning of §§ 6252(b)-(c).
6. Respondent City of Los Angeles is a local public agency within the meaning of § 6252(a), (d).
FACTUAL ALLEGATIONS
Background regarding CD11’s suspected involvement in erecting planters to displace homeless residents of Los Angeles
7. CD11 encompasses the Venice neighborhood of Los Angeles. In 2018, dozens of planter boxes were constructed on public sidewalks in Venice, particularly in areas that had been popular resting places for homeless people. Many activists in the neighborhood oppose the planters, arguing that they were installed with the intention and effect of displacing Venice’s homeless residents. Other similar planters have appeared in other neighborhoods throughout Los Angeles, as well.
8. Notably, while the planters have been a source of much debate in the community, no one has publicly admitted to installing the planters. Moreover, no public authority appears to have issued permits for the planters; the Los Angeles Bureau of Engineering publicly stated that the planters require permits under the Los Angeles Municipal Code, but no permits had been approved for their construction.3 See LAMC § 62.118.2. A spokesperson for Councilmember Mike Bonin, who represents CD11, has stated that he was not aware of any city department’s involvement in the placing of the planter boxes.
9. Recently through a separate CPRA request, Petitioner obtained a copy of an email thread—which is also responsive to Respondent’s Request 1 at issue in this case—between Venice Field Deputy for CD11 Taylor Bazley, members of the Los Angeles Police Department (“LAPD”), and various constituents. In the email thread, Mark Ryavec of the Venice Stakeholders Association asks for “the council office’s support for the installation of a few planter boxes on the parkway, as we previously have installed, with your support, around the Post Office and along Staples. With your approval, the LAPD can certainly support the residents in asking the campers to move their belongings by 8 am Saturday morning so the installation can go forward.” (emphasis added). Bazley initially advises that LAPD can only forcibly remove homeless residents if Ryavec has a permit for the planters and suggests that LAPD could otherwise “politely ask[] but not forcibly remove[] people” in order to facilitate the installation of the planters. Ryavec confirms that his organization “did not apply for a permit” and asks that LAPD “ask[] the campers to move their stuff so the installation can proceed.” LAPD confirms its availability for such action, and Bazley coordinates a formal “clean up” of the area so that the planters can be installed. A true and correct copy of this email thread is attached as Exhibit F.
10. This email thread provides strong evidence that CD11 and LAPD had direct involvement in the installation of planter boxes that have displaced homeless people in Venice. Particularly given the controversy around the planters and the secrecy regarding their origin, records from CD11 regarding to the planters and its other actions relating to homelessness in general are of particular importance to the public.
Respondent violated the CPRA by failing to provide public records in response to Petitioner’s public records requests
A. Request 1
11. On December 26, 2018, Petitioner submitted a CPRA request to Respondent via email from his email address westsidesunshinecoalition@yahoo.com (“Request 1”). He sent the email to CD11’s Councilmember Mike Bonin, Councilmember Bonin’s Chief of Staff Chad Molnar, and Councilmember Bonin’s Deputy Chief of Staff Tricia Keane.5 The request sought all 2018 emails between Councilmember Bonin or his staff members and a list of named individuals—including Mark Ryavec—many of whom are suspected to be involved in anti-homeless efforts or efforts to install planters to displace homeless people in Los Angeles. The request also sought all 2018 emails belonging to Councilmember Bonin or his staff members including four designated search terms—including the term “planter.” A true and correct copy of Petitioner’s December 26, 2018 request to Respondent is attached in Exhibit A.
12. On January 4, 2019, Councilmember Bonin’s new Deputy Chief of Staff Krista Kline sent Petitioner an email in which she confirmed receipt of Petitioner’s request. Kline stated, “Our office has records that are responsive to your request. We are currently compiling those responsive, disclosable documents and, upon completion, such documents will be made available for your review and/or copying.” She asked that Petitioner “contact our office on or after February 15, 2019 to arrange for a time to review the documents.” She also noted that, if Petitioner wished to receive copies of the emails rather than to simply view them, her office would charge him ten cents per page for the cost of physical copies. A true and correct copy of Respondent’s January 4, 2019 email to Petitioner is attached in Exhibit A.
13. On February 15, 2019, Petitioner contacted Respondent as instructed to arrange for a time to review the requested documents. A true and correct copy of Petitioner’s February 15, 2019 email to Respondent is attached in Exhibit A.
14. Having received no reply from Respondent, Petitioner sent Respondent another email on February 27, 2019 inquiring as to the status of his request and noting that two weeks had passed since Respondent’s estimated date of production. A true and correct copy of Petitioner’s February 27, 2019 email to Respondent is attached in Exhibit A.
15. On February 28, 2019, Kline replied stating that she would “need another week in order to get your request in order.” Kline asked that Petitioner “reach out to David early next week to schedule time to review the documents.” Kline did not identify who “David” was or provide his email address. Petitioner replied that same day inquiring as to who “David” was, and Kline wrote back clarifying that “David” was “David Duran Flores.” This is the last communication Petitioner ever received from Respondent regarding Request 1. A true and correct copy of these February 28, 2019 emails are attached in Exhibit A.
16. Having received no further communication from Respondent, Petitioner again emailed Kline on March 8, 2019 to inquire as to the status of his request. He asked that Kline forward his message to Duran Flores, as Petitioner could not locate his email address. A true and correct copy of Petitioner’s March 8, 2019 email to Respondent is attached in Exhibit A.
17. Again, Respondent did not reply to Petitioner’s inquiry. Petitioner sent another email to Kline on March 14, 2019 again inquiring as to the status of his request. A true and correct copy of Petitioner’s March 14, 2019 email to Respondent is attached in Exhibit A.
18. Still having received no further communication from Respondent, Petitioner sent yet another email to Kline—this time also cc’ing Councilmember Bonin, Molnar, and Keane—on March 18, 2019, again inquiring as to the status of his request. Petitioner again requested that the message be forwarded to Duran Flores because he could not locate his email address. A true and correct copy of Petitioner’s March 18, 2019 email to Respondent is attached in Exhibit A.
19. Yet again, Respondent did not reply to Petitioner’s email. Rather than proceeding directly to litigation, Petitioner again emailed Respondent on March 25, 2019—this time to Kline, Councilmember Bonin, Molnar, Keane, and Duran Flores, whose email address Petitioner located on his own—inquiring as to the status of his request. A true and correct copy of Petitioner’s March 25, 2019 email to Respondent is attached in Exhibit A.
20. Again, Respondent ignored Petitioner’s communication. Rather than proceeding directly to litigation, Petitioner sent yet another email to Kline, Councilmember Bonin, Molnar, Keane, and Duran Flores on April 11, 2019 inquiring as to the status of his request. He noted that he submitted his request four months previously with no production of records by Respondent. Respondent has not replied to Petitioner. A true and correct copy of Petitioner’s April 11, 2019 email to Respondent is attached in Exhibit A.
21. Despite Petitioner’s seven follow-up communications, Respondent has ceased all contact with Petitioner. In the over five months that have passed since Petitioner submitted his request, Respondent has not produced even one of the records it promised or provided Petitioner with an accurate update as to the status of his request. Respondent has thereby violated the CPRA.
B. Request 2
22. On December 27, 2018, Petitioner submitted a CPRA request to Respondent via email from his email address westsidesunshinecoalition@yahoo.com (“Request 2”). He sent the email to Councilmember Bonin, Molnar, and Keane. The request sought all 2018 emails between Councilmember Bonin or his staff members and Saul Janson, a Los Angeles business owner who advocates for landscaping that displaces homeless people. A true and correct copy of Petitioner’s December 27, 2018 request to Respondent is attached in Exhibit B.
23. Respondent provided no reply to Petitioner’s Request 2. On March 8, 2019, Petitioner sent an email to Councilmember Bonin, Molnar, Keane, and Kline inquiring as to the status of Request 2 and asking whether Respondent perhaps intended to respond to Request 2 along with Request 1. A true and correct copy of Petitioner’s March 8, 2019 email to Respondent is attached in Exhibit B.
24. Respondent again failed to reply to Petitioner’s follow-up communication. On March 14, 2019, Petitioner sent another email to the same four members of the CD11 office inquiring as to the status of Request 2. A true and correct copy of Petitioner’s March 14, 2019 email to Respondent is attached in Exhibit B.
25. Respondent yet again failed to reply to Petitioner’s follow-up communication. Petitioner sent another email to Respondent on March 18, 2019 again inquiring as to the status of his request. Petitioner noted in his email that Respondent had not provided any response to Request 2. A true and correct copy of Petitioner’s March 18, 2019 email to Respondent is attached in Exhibit B.
26. Again, Respondent failed to reply to Petitioner’s follow-up communication. Rather than proceeding directly to litigation, Petitioner sent yet another email to Respondent on March 25, 2019 inquiring as to the status of his request. A true and correct copy of Petitioner’s March 25, 2019 email to Respondent is attached in Exhibit B.
27. True to form, Respondent again failed to reply to Petitioner’s request. Rather than proceeding directly to litigation, Petitioner on April 11, 2019 sent a final email to Respondent—to Molnar, Keane, Kline, and Duran Flores—inquiring as to the status of his request. He noted that it had been nearly four months since he submitted his request without any reply from Respondent. Again, Respondent did not reply. A true and correct copy of Petitioner’s April 11, 2019 email to Respondent is attached in Exhibit B.
28. Despite Petitioner’s five follow-up communications to various members of the CD11 office, Respondent has failed to reply to Petitioner or to engage with his request in any way whatsoever. In the over five months that have passed since Petitioner submitted Request 2, Respondent has ignored Petitioner entirely and has not produced even one of the records Petitioner requested. Respondent has thereby violated the CPRA.
C. Request 3
29. On February 19, 2019, Petitioner submitted a CPRA request to Respondent via email from his email address westsidesunshinecoalition@yahoo.com (“Request 3”). He sent the email to Kline. The request sought all emails from 2016 through 2019 between elected officials and staff members at CD11 and George Francisco—a Venice Neighborhood Councilmember who Petitioner discovered, through a separate CPRA request, had recently attempted in concert with the CD11 office to evict an unsheltered person from the outdoor area where a holiday sign lighting was planned. A true and correct copy of Petitioner’s February 19, 2019 request to Respondent is attached in Exhibit C.
30. On February 28, 2019, Kline sent an email to Petitioner noting that her office had received his request. She stated, “Our office has records that are responsive to your request. We are currently compiling those responsive, disclosable documents and, upon completion, such documents will be made available for your review and/or copying.” She “ask[ed] that you contact our office on or after March 29, 2019 to arrange for a time to review the documents.” She also noted that, if Petitioner wished to receive copies of the emails rather than to simply view them, her office would charge him ten cents per page for the cost of physical copies. A true and correct copy of Respondent’s February 28, 2019 email to Petitioner is attached in Exhibit C.
31. That same day, Petitioner sent an email to Respondent asking that, because the records were electronic, CD11 send him the records electronically rather than requiring him to make an appointment to review them in person or pay for physical copies. Petitioner also stated that he believed a six-week time-frame for production constituted an unnecessary delay. A true and correct copy of Petitioner’s February 28, 2019 email to Respondent is attached in Exhibit C.
32. Again that same day, Kline sent another email to Petitioner. She erroneously6 stated that “the law does not require that the documents be sent electronically.” She again stated that, if Respondent desired copies of emails rather than to merely view them, her office would require him to obtain hard copies produced at 10 cents per page. She again asserted that the records would not be available until March 29, 2019. A true and correct copy of Respondent’s second February 28, 2019 email to Petitioner is attached in Exhibit C.
33. Again that same day, Petitioner sent another email to Respondent clarifying that § 6253.9(a) did, in fact, require that Respondent provide electronic records in their native electronic format. He also informed Respondent that the CPRA only allows agencies to charge for “the direct costs of duplication” and that there is no cost for duplicating electronic records in an electronic format—making CD11’s insistence on charging for physical copies an unnecessary barrier to access. See § 6253(b). Respondent did not reply to Petitioner’s email. A true and correct copy of Petitioner’s second February 28, 2019 email to Respondent is attached in Exhibit C.
34. On April 11, 2019—approximately two weeks after Respondent said the requested records would be made available—Petitioner emailed Kline and Duran Flores to inquire as to the status of his request. Respondent never again communicated with Petitioner regarding Request 3. A true and correct copy of Petitioner’s April 11, 2019 email to Respondent is attached in Exhibit C.
35. Respondent has, again, ceased all communication with Petitioner regarding his request. In the nearly four months that have passed since Petitioner submitted Request 3, Respondent has failed to produce even one of Petitioner’s requested records as promised. Respondent has thereby violated the CPRA.
D. Request 4
36. On February 18, 2019, Petitioner submitted a CPRA request to Respondent via email from his email address westlakeinvestigations@hotmail.com (“Request 4”). He sent the email to Councilmember Bonin. The request sought 1) a list of all official Twitter accounts used by the council office, and 2) a list of all accounts blocked or muted by those official Twitter accounts. Respondent never provided any response to Request 4. A true and correct copy of Petitioner’s February 18, 2019 request to Respondent is attached in Exhibit D.
37. After receiving no answer from Respondent for nearly two months, Petitioner on April 14, 2019 sent another email to Respondent—this time to Kline and Keane—inquiring as to the status of his request. A true and correct copy of Petitioner’s April 14, 2019 email to Respondent is attached in Exhibit D.
38. Again, Respondent did not reply to Petitioner. Rather than proceeding directly to litigation, Petitioner sent another email to Respondent on April 30, 2019. This time, Petitioner emailed Hannah Levien, a Field Deputy working in Councilmember Bonin’s office. Yet again, Respondent did not reply to Petitioner. A true and correct copy of Petitioner’s April 30, 2019 email to Respondent is attached in Exhibit D.
39. Despite Petitioner’s multiple follow-up communications to various members of the CD11 office, Respondent has ignored Petitioner entirely and failed to engage with Request 4 in any way whatsoever. In the nearly four months that have passed since Petitioner submitted his request, Respondent has not provided even one of the easily-producible records Petitioner requested. Respondent has thereby violated the CPRA.
E. Request 5
40. On March 1, 2019, Petitioner submitted a CPRA request to Respondent via email from his email address westlakeinvestigations@hotmail.com (“Request 5”). He sent the email to Kline. The request sought electronic copies of all Romulus logs and reports from January 1, 2018 through the date of the request. Romulus is a computer program used by government agencies to compile constituent communications from various electronic platforms, as well as other data. A true and correct copy of Petitioner’s March 1, 2019 request to Respondent is attached in Exhibit E.
41. On March 11, 2019, Respondent sent Petitioner an email in response to his request. Respondent stated that, for Romulus logs and reports for constituent communications, the request was “overly voluminous, per Section 6255(a).” Regarding all other forms of Romulus logs and reports, Respondent stated that “our office does not possess any disclosable, responsive records.”7 A true and correct copy of Respondent’s March 11, 2019 email to Petitioner is attached in Exhibit E.
42. That same day, Petitioner sent Respondent an email questioning Respondent’s invocation of the § 6255 exemption and noting that the exemption requires Respondent to establish that the public interest served by withholding the records “clearly outweighs” the public interest served by disclosure. § 6255(a). Petitioner also asked that Respondent assist him as required under § 6253.1(a)(3)8 to articulate an effective request to which Respondent would produce some portion of the requested records. Petitioner asked how much information existed in response to his total request, whether the requested records were burdensome to produce due to required redactions or other complications, and what portion of the requested information Respondent would not consider to be overly voluminous. A true and correct copy of Petitioner’s March 11, 2019 email to Respondent is attached in Exhibit E.
43. Respondent did not provide a response to Petitioner’s request for assistance as required under § 6253.1(a)(3). As such, Petitioner sent Respondent another email on March 26, 2019, again asking for Respondent’s assistance in overcoming the obstacles that Respondent asserted existed to his request. He again noted that Respondent was required under the CPRA to provide him with such assistance. A true and correct copy of Petitioner’s March 26, 2019 email to Respondent is attached in Exhibit E.
44. Again, Respondent did not reply to Petitioner’s follow-up communication. Rather than proceeding directly to litigation, Petitioner sent another email to Respondent on April 3, 2019 asking Respondent to assist him in creating a request that would result in some produced records. A true and correct copy of Petitioner’s April 3, 2019 email to Respondent is attached in Exhibit E.
45. Respondent yet again provided no response to Petitioner. Rather than proceeding directly to litigation, Petitioner sent another email to Respondent on April 30, 2019, this time to Levien, again asking for assistance in crafting an effective request. A true and correct copy of Petitioner’s April 30, 2019 email to Respondent is attached in Exhibit E.
46. Finally, on May 15, 2019, Respondent sent Petitioner an email simply stating, “Our office has responded to that request.” Respondent failed to provide Petitioner with any additional information about his requested records or to provide him with recommendations as to how to overcome any practical basis to the production of those records. A true and correct copy of Respondent’s May 15, 2019 email to Petitioner is attached in Exhibit E.
47. Despite Petitioner’s four attempts to induce Respondent to comply with the law, Respondent refused to meaningfully engage with Petitioner’s request or to provide him with suggestions as to how to overcome its concern that his request is “overly voluminous.” Moreover, Respondent erroneously invoked the § 6255 exemption to the CPRA where it cannot establish that the public interest in withholding Petitioner’s requested records “clearly outweighs” the public interest served by disclosure. § 6255(a). As such, Respondent improperly withheld all records in response to Request 5.
Factual Summary
48. By failing to adequately respond to Petitioner’s repeated requests for clearly-identifiable public records subject to disclosure, Respondent has completely disregarded the need for government transparency and continues to prevent the public from accessing information of great public concern. Respondent impermissibly delayed and obstructed Petitioner’s access to records and ultimately failed to provide Petitioner with even one single record in response to his five requests, let alone to do so “promptly” as required by law. See § 6253(b). Although it has now been nearly six months since Petitioner submitted his first request for public records subject to mandatory disclosure, Respondent continues to unlawfully withhold all records Petitioner requested.
49. Respondent’s failure to produce public records in response to requests effectively makes secret the operations of CD11 and shields Respondent from public accountability. Particularly given recent public concern over the unlawful construction of planters in CD11’s boundaries and CD11’s suspected involvement in this displacement of its homeless residents without public oversight, the public interest in the requested public records is great. Judicial action is therefore necessary to enforce the requirements of the CPRA against Respondent.
FIRST CAUSE OF ACTION:
VIOLATION OF THE CALIFORNIA CONSTITUTION ARTICLE 1, § 3(b)
50. Petitioner incorporates herein by reference the allegations of paragraphs 1 through 49 above, as if set forth in full.
51. The California Constitution provides an independent right of access to government records: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” Cal. Constitution, Art. 1 § 3(b)(1). This provision was adopted by the voters in 2004 because, as the ballot argument supporting the measure states, when Californians asked questions of their government, they increasingly found “that answers are hard to get.” The constitutional provision is intended to reverse that trend.
52. Respondent’s failure to provide records in response to Petitioner’s public records requests violates Article 1, Section 3(b) of the California Constitution.
SECOND CAUSE OF ACTION:
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF PURSUANT TO THE CALIFORNIA PUBLIC RECORDS ACT, GOV’T CODE §§ 6250, et seq.
53. Petitioner incorporates herein by reference the allegations of paragraphs 1 through 52 above, as if set forth in full.
General principles of the California Public Records Act
54. Under the California Public Records Act, §§ 6250 et seq., all records that are prepared, owned, used, or retained by any public agency and that are not subject to the CPRA’s statutory exemptions to disclosure must be made publicly available for inspection and copying upon request. §§ 6253(a)-(b).
55. When a member of the public submits a record request to an agency, the agency is given 10 days to determine whether the request seeks copies of disclosable public records in the possession of the agency and must promptly notify the requestor of that determination and the reasons therefor. § 6253(c). In statutorily-identified “unusual circumstances,” and “only to the extent reasonably necessary to the proper processing of the particular request,” this time period may be extended a maximum of 14 days. § 6253(c)-(d).
56. The law requires that agencies make non-exempt public records available to requestors “promptly.” § 6253(b). It is unlawful for an agency “to delay or obstruct the inspection of public records.” § 6253(d).
57. Where an agency withholds responsive records on the basis of a statutory exemption, “the agency . . . must disclose that fact.” Haynie v. Super. Ct. 26 Cal. 4th 1061, 1072 (2001) (citing § 6255). Even if portions of a document are exempt from disclosure, the agency must disclose the remainder of the document. § 6253(a).
58. Importantly, the agency bears the burden of justifying nondisclosure. § 6255(a). In determining whether exemptions apply, courts must follow the constitutional imperative that the applicability of exemptions must be construed narrowly and that the people’s right of access to public information must be construed broadly. Cal. Constitution, Art. I, § 3(b)(2).
59. The CPRA also requires the government to “assist the member of the public [to] make a focused and effective request that reasonably describes an identifiable record or records” by taking steps to “[a]ssist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.” § 6253.1. An agency that receives a request must also “[p]rovide suggestions for overcoming any practical basis for denying access to the records or information sought.” Id.
60. Whenever it is made to appear by verified petition to the Superior Court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the Court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The Court shall decide the case after examining the record in camera (if necessary and permitted by the Evidence Code), papers filed by the parties, and any oral argument and additional evidence as the Court may allow. § 6259(a). If the Court finds that the agency has not met its burden to justify its failure to disclose, it shall order the public official to make the record public. § 6259(b).
61. A petitioner prevails under the CPRA where the petitioner shows that an agency unlawfully denied access to records. Community Youth Athletic Center v. City of National City, 220 Cal.App.4th 1385, 1446-1447 (2013).
62. An agency is not protected from liability merely because the denial of access was due to the agency’s internal logistical problems or general neglect of its duties. Id.
63. Public policy favors judicial enforcement of the CPRA. The CPRA contains a mandatory attorney’s fee provision for the prevailing plaintiff. § 6259(d). The purpose of the provision is to provide “protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure.” Filarsky v. Super. Ct., 28 Cal.4th 419, 427 (2002).
Respondent unlawfully denied access to all of Petitioner’s requested public records
64. Here, Petitioner submitted requests for clearly-identifiable public records that would shed light on CD11’s suspected involvement in the installation of planters in Venice, its actions related to homelessness generally, and its use of technology in its communications with the public. Respondent denied all access to these records, both by unlawfully withholding records under an inapplicable exemption and through impermissible delay and nonresponse.
65. Respondent repeatedly failed to make a determination of disclosability within 10 days of Petitioner’s requests. See § 6253(c). Respondent failed to make a proper estimate as to when the requested records would be produced, as it repeatedly failed to meet its own estimated dates of production. See id. Respondent refused to provide emails in their native electronic format as required by law and instead created an unnecessary barrier to access by insisting on charging Respondent a fee to make physical copies of electronic records—before ultimately failing to provide the records in any format at all. See § 6253.9(a); see also § 6253(d) (it is unlawful for an agency “to delay or obstruct the inspection or copying of public records.”) Respondent invoked § 6255 without establishing that the public interest in withholding the requested records “clearly outweighs” the public interest in disclosure and refused to meet its obligation to assist Petitioner to formulate a request that would overcome any practical obstacles to production. See §§ 6253.1(a)(3), 6255(a).
66. Most critically, Respondent failed to provide even one public record in response to Petitioner’s five requests despite Petitioner’s repeated follow-up communications attempting to induce Respondent to produce the records as promised. To date, it has been nearly six months since Petitioner submitted his first request. By failing to produce the requested public records at all—let alone “promptly,” as required by law—Respondent is maintaining in a shroud of secrecy records that are of great public concern and shielding itself from public scrutiny. § 6253(b).
67. Respondent’s denial of access to public records not only violates the letter of the CPRA, but also its spirit. The CPRA is predicated on the principle that:
Openness in government is essential to the functioning of democracy. Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.
Int’l Fed. Of Professional and Technical Engineers, Local 21, AFL-CIO v. Super. Ct., 42 Cal.4th 319, 328-39 (2007) (internal quotations omitted).
68. It is unclear whether Respondent’s refusal to produce these records is mere negligence or an actual attempt to hide its involvement in the installation of the planters from the public. Whatever Respondent’s intent, the effect is the same—a complete lack of transparency around this hotly-debated issue, the obstruction of the democratic process, and a clear violation of the CPRA. Respondent’s repeated and ongoing violations of the law require judicial intervention.
A WRIT OF MANDATE AND DECLARATORY RELIEF ARE APPROPRIATE
69. Petitioner incorporates herein by reference the allegations of paragraphs 1 through 68 above, as if set forth in full.
70. Petitioner is entitled to seek a writ of mandate and declaratory relief in response to violation of the CPRA. § 6258. Petitioner has no plain, speedy, adequate remedy in the ordinary course of law other than the relief sought in this petition. See Code of Civil Procedure § 1086.31.
71. Respondent has a clear, present, ministerial duty to comply with §§ 6250, et seq. Respondent has repeatedly acted and continues to act in violation of the CPRA by denying access to public information through impermissible delay, non-responsiveness, improper use of exemptions, and withholding records from the public. § 6253(b), (d).
72. Petitioner has performed all conditions precedent to filing this petition. There are no administrative exhaustion requirements under Government Code §§ 6250, et seq.
73. An actual controversy exists between the parties concerning whether Respondent has engaged in conduct that violates the statutory requirements of the CPRA. A judicial determination to resolve this actual controversy is necessary and appropriate at this time.
PRAYER FOR RELIEF
WHEREFORE, Petitioner prays for judgment as follows:
1. For issuance of a writ of mandate directing Respondent to provide Petitioner with all records he requested, except any records that the Court determines may lawfully be withheld;
2. For a declaration that Respondent violated the CPRA by its acts and omissions described in this Petition;
3. For Petitioner to be awarded reasonable attorney’s fees and costs; and
4. For such other and further relief as the Court deems proper and just.
Dated: ______________ Respectfully submitted,
______________________________
ANNA VON HERRMANN
Attorney for Petitioner and Plaintiff
Image of Bonin staffie Krista Kline is ©2019 MichaelKohlhaas.Org and is based on some picture from FB that I don’t feel like finding the URL for again so if you want any more you can sing it yourself.
- Who I heard, just this afternoon, has quit his job with the City of Los Angeles and is headed back to his alma mater out there at the storied corner of Hilgard and Le Conte to get a damn MBA of all things. I quasi-sincerely wish him the best, and I’m sincerely sure that he’ll be happier in school, where all the lessons are predigested and the teachers all teach to the test. Not everyone’s suited to live in reality, and even though we’ve tried and tried and tried to explain to Taylor what’s really happening, well, he won’t be helped. A lot of housedwellers are service resistant like that and they need to live in tightly controlled environments like graduate school in order to thrive and succeed. In my experience with Taylor his reading comprehension is, whether willfully so or not, very poor. Which is why business school is a really good choice for him.
- Claiming that they don’t have to produce records in response to a CPRA request because there are too many of them is a favorite tactic of the City’s, spurred on as they are by the careless rich-boy psychopathy of Deputy City Attorney Strefan Fauble. The problem with this argument is that it relies completely on section 6255(a) of the CPRA, the so-called catch-all exemption. This states in part that “The agency shall justify withholding any record by demonstrating … 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.” Their argument is always that producing X records will take so much work that it’s contrary to the public interest for them to spend their time preparing them when they could be doing something more useful, like sweeping another encampment or selling off more RSO apartments to a zillionaire. They treat this theory like it’s an actual exemption, like all they have to do is say it and the argument is done. They universally ignore the balancing test that is explicitly included in the section. So e.g. if someone were to ask them for copies of all their emails that contain the letter “e” then, since there’s clearly no public interest whatsoever in that material, except maybe to an Oulipiste, they could probably successfully argue that that producing it would be a waste of their time contrary to public interest. But in a case like this, about homelessness and the motives and extent of government responses, the public interest is so high that it’s doubtful that any balancing test could come out in favor of not producing. Sadly, the City is counting on the fact that they’re not even required to make this argument unless the requester files a petition, and most requesters don’t have the resources. But I do, and now they’ll pay for their arrogance. And maybe they’ll think twice next time, although probably not.
