The California Public Records Act gives every person access to official writings because, as the law itself tells us,1 “the Legislature … finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” And this isn’t just some random preamble to some random law. It is among the fundamental human rights enumerated in the California Constitution itself,2 which states that:
“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.”
Among the other fundamental rights enumerated in this same article are freedom of the press, of speech, of religion, the right to civilian control of the military, the prohibition of slavery, equal protection, habeas corpus, and so on.3 This right of access to public records, measured both intrinsically and by comparison with the company it keeps, is hugely important. Fundamental.
But nevertheless, the City of Los Angeles4 habitually, consistently ignores its duties under the CPRA, flouts this fundamental right in a way that they’d never think of doing with, e.g., the right to be free of slavery. And they don’t just ignore their duties, don’t just flout the law. They flout it in the stupidest, most arrogant, most flamboyant ways possible.
They’re well aware that the only remedy for violations is a civil lawsuit and that most people seeking access don’t have the resources to take them to court. They have contempt for the law, they have contempt for requesters, so they just make stuff up and don’t even bother coming up with plausible explanations for their violations.5
I don’t write about most of my experiences with this because they feel so routine to me, even though objectively I know they are not. But occasionally the City comes up with something so new, so crazy, so just not only off the chain but shifted into a dimension beyond chains, that it seems important to expose. And here we are!
The story begins last summer when the City was first becoming broadly aware of the existence of top secret anti-homeless vigilante Facebook groups populated not only by the usual psychopathic housedwellers but also by a bunch of LAPD officers and I do mean a bunch of LAPD officers.
At the time, as part of this movement, I was making a lot of related CPRA requests to various Valley council districts, including the reliably fascist CD126 and the enigmatically not-flamboyantly-fascist CD3. But also to the reliably second-most-fascist CD2, run by famously smarmy bantamweight Napoleon Complex poster boy Paul Krekorian.
And so on July 16 I fired off this request to CD2 asking for a bunch of vigilante-associated emails. A couple of weeks later I got this nonresponse from then-Commo-Director Mehrin Rahman. The CPRA requires agencies to respond to requests in 10 days, extensible to 24 under specified circumstances, and requires certain elements in a response.7 Rahman’s claim, essentially that CD2 needed more time because they weren’t done yet, is not among these circumstances.
Because I’m energized by a certain kind of conflict, and because it’s absolutely essential to my strategy8 to push back against every possible violation of the law, I answered Rahman listing in probably too much detail all the deficiencies in his reply. This elicited another meaningless email from Rahman the next day, to which I replied yet again, yet again explaining the deficiencies.9
And at some point evidently Rahman decided to talk to the City Attorney because on August 16, 2019 he sent me this slab of word salad lightly dressed with incoherent copypasta lawyerese but, finally, with the required statement that there were responsive records and when they might be ready to inspect:
The results of our search show that your request will yield 2,660 number of documents. Therefore, we estimate that your documents will be available for inspection on December 16.
Now, December 16 is five months to the day after my initial request. This is a common feature of the City’s appallingly distant estimated production dates. It makes it pretty implausible that they’re basing the dates on the factual circumstances of the material but are instead applying some generic formula. It’s essential to resist these kinds of delays, and my strategy for resisting is outlined in the response I sent Rahman:
I’m assuming you’re not planning to wait until the last day to review all these records, but in fact actually need these four months to review them. So probably you’ll have about 650 done per month. Can we set up a schedule so that I can review them once a month, starting on September 19 at 1 pm in your City Hall office? Please confirm that I will be able to review the first 25%-ish at that time.
And I think this argument is strong. It’s even stronger than I made it out to be in my email to Rahman.10 The CPRA forbids agencies from delaying access to records.11 Therefore if they claim it’s going to take them four months from a given date to produce records then processing the actual records had better actually require four months.
It’s clear that no process that requires four months can be done in fewer than four months, so at any given moment they must have some part of the records processed. And of course the already-processed public records are still public records. The CPRA requires public records to be produced on demand.12 so if one were to go into the office after one month there would be some records ready and they’d have to produce them.13
And I didn’t hear from CD2 again until October 7 with this email from Tom Waldman, Rahman’s replacement as Krekorian’s communications director. As you can see, Waldman not only has anger issues,14 he isn’t buying my theories about access and also, in his unhinged arrogance15 doesn’t feel like he has even to explain himself at all. These are the words of someone drunk on power:16
My name is Tom Waldman. I am the new communications director for Councilmember Paul Krekorian. I will be handling your PRA request.
The responsive records will be available to you for inspection on Dec. 16, not before. We will not be setting up a monthly inspection.
And again, it’s essential to push back on this kind of obstruction. It’s a tragic aspect of the CPRA that just violating it is not enough of a reason to sue the government.17 The CPRA authorizes someone to file suit in order to “to enforce his or her right to inspect or to receive a copy of any public record or class of public records”18 and not necessarily just because the agency is delaying access. But probably under some circumstances delay amounts to denial of access, which is why it’s important to hit that note in one’s answers, like this one that I send to Waldman:
I feel like you’re not engaging with the substance of my email. I am attaching a copy for your reference here. I hope you will actually take the time to read it and to respond to its actual content rather than with what’s basically a legally indefensible denial of access to these records.
I asked for some records in July. This is already three months ago. Your office told me there were about 2600 emails and that they would be ready on December 16. If you have started reviewing them then some are ready now and the law requires you to make those available immediately on demand. To refuse constitutes an illegal denial of access. If you have not started reviewing them then your previous date estimate was not made in good faith, which constitutes an illegal denial of access.
Furthermore, your office’s claim that it will take five months to review 2600 emails is already so implausibly inflated that in itself it’s pretty likely to be an illegal denial of access. I hope that, instead of just repeating your predecessor’s statement, you will think about saving everyone some trouble and the City some money and making some of these records available immediately.
And for good measure, and because it’s possibly a source of some extra pressure, I also brought Deputy City Attorney Bethelwel Wilson into the conversation with another email,19 both laying out the same argument and pleading yet again with someone to act the damn grownup and start a conversation. The best outcome of such an email is that it convinces someone and they hand over the records. The worst, which is still good, is that the judge sees you as the more reasonable party:
Hi Mr. Wilson,
Here’s yet another chance for you to intervene before I have to file a petition. Here are the options I see:
1. There are records available now and CD2 must let me see them.
2. There are no records available now and CD2 just randomly plucked the production date from thin air and has not started collecting records.
Please consider facilitating some kind of agreement here, Mr. Wilson, rather than ignoring what’s clearly a pervasive pattern of noncompliance with the CPRA.
And Wilson ignored me, and I backburnered the matter because I had other priorities, and then, finally, as scheduled,20 Waldman got back to me last week with an announcement that the goods were ready. But not just an ordinary announcement. This is the obstructionism paradigm shift that earned Waldman this post. Read it first, then I will explain the horrific violations proposed here:
our files are ready for pickup at our office. They include three boxes of printed emails and the digital attachments of everything on a USB Drive.
Our offices will be closed on Monday for staff training and re-open Tuesday at 9 a.m.
The USB will be $10 and for this one time we will not charge for printed documents.
First of all, the CPRA requires agencies to produce electronic records in electronic format.21 So Waldman’s announcement that they had printed them out is a violation, although not a strange one.22 Next, the CPRA allows agencies to charge no more for copies than the direct cost of duplication.23 The City uses Google Drive to transfer files and the marginal cost of that is zero, so Waldman’s claim that I will have to pay $10 for a USB drive is not only obstructionism, not only meant to discourage, not only a weird overcharge, but is also illegal.
And finally, although it’s not clear quite yet, his statement that the records are ready for pickup is the most problematic thing of all here. I can’t carry three boxes of paper out of City Hall, I have no way to transport them even if I could, and even if I could move and transport them, I have no place to store them. And if this production is like others I’ve gotten from the City it’s probably padded with thousands of pages of useless irrelevant crap, which is another beloved obstructionist tactic. So I wrote back explaining that the law required them to let me inspect the records on site and that that’s what I would do:
Hi Mr. Waldman,
It’s contrary to the law to charge for USB drives to transfer electronic records. Please transfer these to me at no charge using Google Drive like every other City office. Please do it today, as also required by the law. If you refuse to do so please confirm that you will have a computer available for me to inspect and copy these records at no charge in person. Alternatively please confirm that you will allow me to use my own computer in your office to inspect and copy these records at no charge.
Furthermore, since the law requires the City to produce emails electronically but you are apparently refusing to do so, and since I have no way to transport “three boxes of printed” anything, I will need to inspect and scan these records in your office. Please confirm that I will be able to do so.
In order for me to schedule my time, can you please specify roughly how many sheets of paper are involved in these “three boxes”?
Thanks for your help, no matter how reluctant, insufficient, and statutorily non-compliant!
And oh boy, Waldman is not having it. In his response he told me flat out that I would not be allowed to inspect records on site:
You are welcome to copy the contents of the thumb drive to your computer at no charge.
We will not make office space available for you to scan the boxes of documents. You will have to arrange transfer of the paper records.
Oh boy. This aggression will not stand, man. So I wrote back to him giving him a deadline for coming to his senses:
Hi Mr waldman.
Please check on this with the city attorney. The law explicitly requires you to make space available for record inspection.
If I don’t hear from you by COB Wednesday 12/18 with a confirmation that you will make space available for inspection I will proceed under the assumption that you have explicitly denied me access.
Alternatively you can provide these emails in their native electronic format as the law requires.
Perhaps expectedly given the extraordinary level of raging entitlement displayed by the guy, Waldman blew through the deadline, so I tossed the case by email to Bethelwel Wilson who, although his salary somehow depends on making his clients think he’s messing me up, does occasionally have a lick of damn sense:
Hi Mr. Wilson,
As you can see, possibly on the weirdly flawed advice of your office but maybe on his own initiative, Mr. Waldman of CD2 has insisted on printing out “three boxes” of emails rather than producing them electronically as required by the CPRA. Furthermore he insists that I will not be allowed to inspect this material on site but that I have to take possession of this material.
Not only is this contrary to the CPRA but, without going into further detail because it’s really incredibly hard for me to imagine a judge ruling that I am somehow required to disclose private medical information precedent to enjoying my constitutional right to inspect records, I will also let you know that his insistence that I take possession of “three boxes” of paper on the 4th floor of City Hall is an ADA violation as well.
In any case, the ideal solution would be for the CA to advise City Departments that they’re required to supply emails in electronic form. If you all aren’t ready to do that right now then can you at least talk Mr. Waldman down off this bizarre “no onsite inspections allowed” ledge? I gave him until today to change his mind, but he hasn’t done so. Please let me hear from you by COB Friday, December 20.
Also, can you please arrange for him to transfer the files he has produced electronically via Google Drive? His insistence that I come in person to receive them on a USB drive is really transparently obviously solely a delaying tactic and therefore contrary to law.
And then Waldman changed his tune a little, but not for the better. He offered to let me take possession of the three boxes of unnecessarily printed-out emails in as many trips as I needed. So that, given that it costs me about two hours of travel time for each trip to City Hall, and given that I can probably transport effectively about 2,500 sheets of paper per trip, and given that the ordinary box holds 5,000 sheets of paper, he’s proposing to “allow” me to make six trips at a cost of 12 hours rather than two, and all so he can continue to enforce an illegal restriction. What. A. Tool, if you know what I mean. This is just the kind of weird theoretical loophole that the powerful imagine the law consists of.24
And at this point I was done talking to Waldman about it so I answered as if Wilson were my correspondent:
Hi Mr. Wilson,
Is this the final position of the City of Los Angeles? That the CPRA does not require you to make records available for inspection but that it is allowable to require me to take possession of an unlimited quantity of paper records? I won’t insult you by quoting the explicit applicable language from the statute.
I did ask you to respond by tomorrow, and I will certainly wait till after then to take action, but perhaps Mr. Waldman, having CCed you, is speaking for the City on this issue. If that’s the case, I hope you will let me know.
And something must have happened behind the scenes, because less than an hour later Waldman caved:
You may review your documents in the fourth floor media room, City Hall, from 9:30 am to 3 pm Friday, December 20, and Monday, December 23.
The thumb drive and three boxes of documents will be in the room.
Note that this was all yesterday, so here we are, five months after I made the request, with endless amounts of arguing, and the City has finally agreed to do about 80% of what the law requires25 Imagine if I were an ordinary requester, likely to be intimidated by their unsupported assertions, their weirdo made-up policies, and so on. Imagine if I hadn’t already sued the City of Los Angeles about 5 times this year alone so that they take my threats somewhat seriously, although not seriously enough.
Imagine if I weren’t energized by precisely this kind of debate or didn’t have the free time to spend hours per day on it. This is how they effectively keep records out of the hands of ordinary people.26 So yeah, this is how Paul Krekorian, crazed cockalorum of CD2, instructs his staff to meet the obligations imposed on them by the Constitution of California. And this is why we need a municipal sunshine ordinance.
Image of lying psychopath Tom Waldman is ©2019 MichaelKohlhaas.Org and once upon a time, friends, once upon a freaking time.
- At §6250.
- At Article I(3)(b)(1).
- There’s also the appalling, reprehensible, and overruled-by-the-supreme court but not yet repealed Section 7.5, which insanely declares that “Only marriage between a man and a woman is valid or recognized in California.” But I’m not letting that detract from my argument here, okay?
- And probably every other agency in California subject to the CPRA, but I can only think about one thing at a time these days.
- There’s nothing unique to Los Angeles here, and not even to California. Confirmed for instance by Minnesota public records wizard Rich Neumeister, who notes in an essential tweet that Many not all………agencies ‘play’ individuals who make #foias They give broad assertions of law……why cannot give data…..tone of communication is arrogant and “clown’ you as dum! But you come back showing you have knowledge of law…….they take a different tone!
- The link is to now-repster John Lee’s web page although at the time CD12 was repped by Greig Smith, playing the role of Lazarus to Herb Wesson’s Jesus and still, at the time, stinking of the tomb. Of course, they all stink of the tomb in CD12 living, as they do, in the whitenedest sepulchers in the City of Los Angeles. They’re all whitened sepulchers but CD12 cranks the whiteneding up to 11.
- It notably does not require production of records within 10 days but only notice as to whether records exist and, if they do, when they’re likely to be produced. This is all found at §6253(c).
- Want to know what my strategy is? What goals I’m seeking to attain with this strategy? Let’s have coffee sometime, on me. That kind of thing isn’t generally for writing down. Drop a line to firstname.lastname@example.org.
- And this time including my standard offer to City of LA departments, imploring them to meet with me to set up a CPRA response system so that I wouldn’t have to keep suing them every few weeks. CD2, like all the other departments, ignored me.
- There are two guiding principles at work here. The first is to never tell all you know.
- At §6253(d): “Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.”
- At §6253(a): “Public records are open to inspection at all times during the office hours of the state or local agency.”
- Of course the City of Los Angeles being what it is logic and argument will not suffice to prove this point. Court orders are all that will settle it for the City. This is one of my major projects, as I said. The process is slow, but it’s moving forward!
- A strange quality in a director of communications to be sure, but Krekorian himself is so overwhelmed with seething rage that probably Waldman’s inability to control his tone is just what’s called for in that office.
- You can’t tell from this particular email out of context just how unhinged is the guy’s arrogance but, by the end of this post, having read the rest of the correspondence, looking back you will see what I mean. And never be able to unsee it.
- I guess it’s worth pointing out that the law doesn’t give him the power he’s claiming here. The only reason he has it is because he’s been allowed to have it. But isn’t that the case with all power?
- This statement is not completely true. What’s true is that just violating the CPRA is not enough of a reason to sue the government under the causes of action allowed by the CPRA. It’s possible to sue the government for general CPRA violations under other theories, most notably Code of Civil Procedure §526a, about which I expect you will be hearing an awful lot more from me in 2020.
- At §6258.
- I heard a rumor somewhere that Wilson’s whole job at this point is dealing with my CPRA requests. Don’t know where I heard it or if it’s true. If you’re dealing with idiotic, recalcitrant, fecklessly obstructionist City staffers, why not drop Wilson a line at email@example.com and don’t forget to CC his supervisor Frank Mateljan at firstname.lastname@example.org. Sure, maybe they’ll ignore you, but sometimes they don’t and sometimes they seem possibly to exert some behind-scenes pressure.
- Which, by the way, is also suspicious. If these City offices were actually working on my requests the whole time they claim to need to work on them, it seems unlikely that they’d always finish right when they thought they would months and months before. I think it’s pretty clear they’re finishing the requests when they finish them and then just waiting out the clock before they let me know. I have concrete proof of this in a number of cases, and it’s almost certainly happening here too. You’ll also be hearing more about this in the new year.
- At §6253.9.
- This is actually normal for the City. They have some stupid theory about why the law allows them to do this, and it will take a court order, which they will eventually receive, to change their minds about this.
- At §6253(b). Again, I’m mauling some subtleties here. The law allows an agency to charge more if it’s authorized by statute, and the City of LA has a charter clause that allows it to charge $0.10 per page for paper copies. It has no statutory allowance for charging more for digital copies.
- And as I always say, mostly they’re right. They’re just not right with respect to the CPRA. Imagine if the law allowed this kind of policy. The City could print out hundreds of thousands of pages and require all requesters to transport them away. We’d have to hire trucks, labor, and so on, rent warehouses to store the fruits, and so on. And don’t think they wouldn’t do it. If this episode shows anything it’s that it’s only the fact that it’s against the law that’s stopping them.
- Leaving out the stuff about printing the emails. That’s a battle for another day.
- Also, they managed to run out the clock to the point where they’re going to be on vacation starting Tuesday and then I will be out of town so it’s probably going to be another month before I manage to look through everything, although I will be able to spend some time with the material on Monday probably.