It’s astonishing to me even after more than five years of dedicated CPRA-ology the literal torrents of microaggressions, macroaggressions, evasions, lies, threats of retaliatory litigation, illegal demands for payment, and so on, that public agencies will unleash on unsuspecting citizens who try use the California Public Records Act to understand and influence these putatively public-serving offices, created by popular will to serve the needs of the people of California.
Their nuclear skunk-spray defense tactics are really successful against unsuspecting, unprepared, inexperienced requesters. So occasionally, in furtherance of my goal of empowering Angelenos1 to be able to use the CPRA as the exceedingly powerful tool of activism that it potentially is, I like to tell stories of my own experiences to expose, mock, and troll the bad actors, demystify and defang their tactics, and build solidarity among requesters.2 To remind you that you’re not alone and that when they’re screaming at you, threatening you, insulting you, aggressively billing you for zillions of dollars, you still have a constitutional right to get the damn records at no charge.3
And today, friends, do I have one heck of a story for you! Encompassing in a single episode an extraordinarily broad variety of popular obstruction tactics! With the added attraction of a LOL-U-mad-bro moment in which opposition lawyer Erica Klein, name partner of metaphorically mobbed-up charter law shyster conspiracy Hansberger & Klein, totally lost her already minuscule supply of what apparently passes for cool among the charter law conspiracy circles in which she moves, revealed in an extraordinarily explicit series of batshit psychotic emails!
The story begins with this July 12, 2019 request for emails which I sent to the white savior charter conspiracy known as the Inner City Education Foundation Charter Schools, or ICEFPS [sic] for short.4 Note that ICEFPS capo di tutti capi Parker Freaking Hudnut is a core member of the CCSA sponsored lobbying conspiracy known as the Los Angeles Advocacy Council, which is the theme of the request. This topic is of the utmost public interest.5
Hello, Mr. Hudnut.
I am writing to seek the opportunity to look at emails in the possession of you, Mr. Gomez, or Ms. Owens-Lincoln in any email account with which any of you conduct public business in the specified date ranges that are to/from/cc/bcc ANY OF the described accounts, domains, or persons:
From January 1, 2016 through June 30, 2019:
[list of 47 email addresses and domains]
I need to see these in EML, MSG, MBOX, or PST format, as required by the CPRA. I will also need to see all attachments in their native formats as well. If you provide emails in native formats their attachments just naturally come along with them in their own native formats.
Thank you, Mr. Pack! [sic — got the guy’s name wrong due to copy/paste]
Note also that I specify that I need the requested emails in native format. This allows them to be imported into a client, e.g. Thunderbird, and thereby searched, sorted, filtered, and generally handled by methods essential to dealing with the massive amounts of data generated by electronic communications media. The CPRA at §6253.9 requires agencies to provide electronic records in native formats.6
Now, keep in mind that the CPRA at §6253(c) requires an agency to respond to requests within ten days.7 But many, many agencies ignore this requirement completely, and ICEFPS is no exception. Thus, having received no response, I wrote again on August 23, 2019, over a month after their ten day deadline had expired:
Good morning, Mr. Hudnut!
I am just writing to ask after the status of this matter. A response was due on July 22, 2019, over a month ago, and yet none was forthcoming.
And finally, on August 28, 2019, more than six weeks after my request, I got a letter from their lawyer, the infamous Erica Klein of the hyperinfamous Hansberger & Klein. Note that although I did not give my last name in my request she uses it in her response. This shows that she’s been consulting about me and/or investigating me. Nothing wrong with that, of course, but it’s a sign of weakness, I suppose, or at least revealing it certainly is:
Please be advised we represent Inner City Education Foundation Public Schools (“ICEF”). I am writing to respond to your Public Records Act requests submitted to our client, pursuant to Cal. Govt. Code §6250 et seq. on or about August 23, 2019.
In particular, the records required to respond to your Public Records Act request necessitate ICEF to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request, as well as possibly compile data or construct a computer report to extract data that is responsive to your request. ICEF therefore reserves the right to charge for the full cost to compile records, extract information from an electronic record or undertake programming to satisfy the request. Cal. Govt. Code section 6253.9(b)(2).
Pursuant to Cal. Govt. Code §6253(c), ICEF hereby notifies you through our office that it will provide the records requested within a reasonable period of time due to the unusual circumstances your request imposes. This request may generate thousands of responsive records. Our client’s IT vendor has been tasked to search for and produce these records. Once the records are produced, we will review them to determine if any records are exempt from disclosure.
ICEF estimates it will be able to fulfill the request by October 11, 2019, given the extensive period of time it will take to review email accounts to locate the requested information while also conducting their day to day business.
There are a few important things going on here. Note first that although I sent my request on July 12, 2019, Klein asserts that I sent it on August 23, 2019. This is a mendacious attempt to cover up the fact that her client illegally ignored my request for more than six weeks. Also note her reference to the CPRA at §6253.9(b)(2). The law very clearly requires agencies to make records available at least for inspection at absolutely no charge to requesters. They are forbidden even from charging for the time it takes them to search for, collect, and process the records.
The one exception to this rule is found in the section Klein cites here. This allows agencies to charge requesters for access to electronic records when “[t]he request would require data compilation, extraction, or programming to produce the record.” It’s well established that searching for and producing emails does not fall into this exception, which is about e.g. running searches against databases and similar things. Nevertheless many agencies pretend that it allows them to charge exorbitant fees for access to emails. The goal, as always, is to intimidate requesters into abandoning their requests. Don’t fall for it.
And also note that Klein told me they’d have the goods around October 11, 2019. So I wrote back to thank her,8 and then they blew through their self-proclaimed production date. So a month after it, on November 8, 2019, I wrote back to them asking what the heck was going on. This kind of delay, where they ignore requests until the requester asks yet again for the status, is exceedingly common. At least some, if not most, requesters have already given up by now, four months after the original request. But this time Klein responded, on November 12, 2019:
I am writing to respond to your Public Records Act requests submitted to our client, Inner City Education Foundation Public Schools (“ICEF”) pursuant to Cal. Govt. Code §6250 et seq. on or about August 23, 2019.
As stated in our August 28, 2019 correspondence, ICEF reserved the right to charge for the full cost to compile records, extract information from an electronic record or undertake programming to satisfy the request. Cal. Govt. Code section 6253.9(b)(2). To date, approximately 36 hours have been spent retrieving a portion of the emails you requested. Your request is likely to generate thousands of responsive records. Our client’s IT vendor has been tasked to search for and produce these records. The records required to respond to your Public Records Act request necessitates ICEF to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request, as well as compile data or construct a computer report to extract data that is responsive to your request.
ICEF has only partially completed its analysis of the cost required to compile the requested records. The IT department, at a rate of $20/hour, has expended 36 hours to date to compile a portion of the requested data. A data analyst, also at the rate of $20/hour, must review the compiled date to ensure any and all confidential information, including student names protected under Federal Educational Rights and Privacy Act (“FERPA”), is redacted. It is estimated an additional 50 hours will be required for the IT vendor to retrieve the remaining information requested. As well, it is estimated that approximately 100 hours will be required for the data analyst to review the compiled data to ensure FERPA compliance. Hundreds, if not thousands of emails will need to be reviewed individually to determine if any student personally identifying information is contained there. Thus, hundreds, if not thousands of student names or other personally identifying information may need to be redacted pursuant to the requirements of FERPA.
Please remit payment in the amount of $3,720.00 which will enable ICEF to complete the work requested immediately.
Given the voluminous nature of the responsive records, we will require an additional minimum forty-five (45) days to review the records to determine if any records are exempt from disclosure. Sincerest apologies for the delay, however, regrettably the additional time is necessitated by the voluminous nature of your request as well the time to review the responsive material. The minimum of forty-five days falls during ICEF’s holiday break and, as such ICEF estimates it will be able to fulfill the request by January 10, 2019.
And here Klein finally makes good on her implied threat from before and tells me I will have to pay $3,720 to get the records. This. Is. A. Lie. She can dress it up in all the aggressive lawyerese at her disposal, she can incorporate the language from the inapplicable statutory section, and so on, but it is still a lie. It’s a pretty common lie across all types of public agencies in California, but it’s especially common among charter schools, who are all following the same script.9 You can read about another activist’s experience with the same tactic, in fact pretty much the same language, with Granada Hills Charter School.
So I wrote right back contesting this nonsense, which it’s important to do. And although to this point I had been utterly, completely, blandly neutral in the tone of my requests, I let in a little snark, because Klein’s letter had revealed that ICEFPS was not dealing with me in good faith at all. Klein was misstating the law to intimidate me into abandoning my request. This is an almost universal practice among CPRA-subject agencies and for the most part there’s no incentive for them to stop doing it. More on this later, but at least pushing back is essential:10
Good morning, friends!
There is no possible world under which I am required to pay for access to emails. I’m not listing authorities because they are so well known that the only possible conclusion to be drawn from your assertion of the opposite position is that either you’re purposely contraverting them or else you’re incompetent. The latter is not likely and the former suggests that you already know what they are and there’s no benefit, therefore, to my doing your work for you by citing them.
Please reconsider your position here and let me know by Friday, November 22 that you will, as required under the law, let me inspect these emails at no charge and, should I so desire, obtain copies for no more than the direct cost of creating said copies which, as you no doubt know, is nothing.
And in this case at least, pushing back worked just fine, or at least it appeared from Klein’s November 15, 2019 response to have done so. You can see that she has, albeit with an unusal display of whiny-baby self pity, abandoned her baseless claim to authority to charge money, although, characteristically, she doesn’t mention at all that she’s done so. In court, in my experience, what people actually do ends up being much, much more important than what they say they’re going to do or why they say they’re doing it:11
You requested to look at emails that “are to/from/cc/bcc” 47 named accounts, domains or persons for the three Executive Officers of an educational institution for a period of 4 years. Each of these employees sends hundreds of emails a day. Furthermore, these employees of course handle matters pertaining to students, who as you know are protected under FERPA. As such, it is not possible to simply provide you access to “look at emails… in their native format” as we are required by law to ensure any and all confidential information, including student names protected under FERPA, is redacted. Personally identifying student information, including but not limited to student names, ages, health conditions and educational records, cannot be shared or viewed by third parties without parental consent.
ICEF operates seven (7) charter schools educating more than 2500 students. The Executive Team, along with IT department and consultants needed to review this information will need to spend considerable time reviewing records to comply with your request.
As we have noted in our previous correspondence, fulfillment of your request will generate thousands upon thousands of pages of emails. Those documents have to be printed and reviewed individually in order to determine if any student personally identifying information is contained there. Then, those hundreds, if not thousands of student names or other personally identifying information will need to be redacted pursuant to the requirements of FERPA.
In sum, each email must be printed, reviewed, redacted and copied in order to be prepared for disclosure to you. And, as the number of emails is yet unidentified, it is impossible to determine the exact number of hours needed to review this material so as to fulfill your request. In addition, each and every attachment, per your request, will need to be similarly reviewed and potentially redacted should the attachment contain student personally identifying information. Despite your refusal to assist in paying for such efforts, as would be appropriate given the voluminous nature of your request, my client will instead spend state money necessary for education on fulfilling your request.
At such time as the information has been properly reviewed and redacted, it will be provided to you. An update on the status of the completion of the response will be provided to you on January 10, 2019 as previously indicated.
Happy Holidays to you. If you have any questions or need any additional information, please do not hesitate to let us know.
So now she admits that they can’t charge me for access to the emails. She’s moved past her prior claim that the law authorizes them to charge to a new, weaker, whinier version wherein my paying “would be appropriate given the voluminous nature of [my] request.” However, because obstruction is her goal, and because obstructionists apparently see any attenuation of the rights of requesters as a victory, she’s now asserting that they don’t have to provide emails in native format. Instead they are going to print them all out on paper.
This, as I said above, is illegal. It also makes large sets of emails functionally useless. No one can sort through and comprehend tens of thousands of paper pages, whereas emails in native form can be imported into a client and searched, sorted, and processed automatically. Given that all these agencies seem to have a lot to hide, making it hard to understand the content of produced records counts as a win apparently. Forcing requesters to accept emails printed on paper also allows agencies to whine about how much work they have to do. Exporting emails to files takes no time at all. They can be redacted using find/replace.12 So I sent a response outlining these issues but at this point I was assuming I was going to have to file a suit:13
Good afternoon, folks.
The thing with your FERPA argument is that every single correspondent I am asking you to search for here is already a member of the public with respect to your organization. If you discussed anything exempt with e.g. CCSA you’re required by law to release it to me. I assume you’re not sharing your students’ private info with any of the orgs on my list. So your claims about review are pretty implausible.
Please reconsider your theory that the law permits you to print these emails on paper. It’s also pretty rich that you’re complaining about the money you’ll have to spend to print them given that if your goal weren’t to obstruct access you could produce them for free electronically.
Thanks, and looking forward to receiving whatever it is you produce!
And as you know, I have a lot of noncompliant charter schools I’m dealing with, and this one is important but it’s not at the top of the list. So I put it in the queue to write up and send to a lawyer for filing, and didn’t think about it further. Meanwhile, I filed my first CPRA suit against a charter school in early December, just a couple of weeks after Klein’s letter. And, as I’ve said, these charters are all talking to one another about me, researching my work and so on.
So I imagine news of this petition got around and started encouraging these outlaws to comply with the law more seriously than they had been doing. I attribute a recent fairly spontaneous release of emails by Extera Charter Schools to this effect, for instance. And to it I also attribute Klein’s December 27, 2019 email to me, in which she actually agrees to cough up the goods:
Please provide a physical address where the documents may be mailed.
Erica B. Klein | Attorney | Hansberger & Klein, A Professional Law Corporation
Now, you see, she has not backed off her intent to provide physical paper copies of these emails. And she’s introduced a new for her although absolutely not uncommon aggressive tactic, which is to try to require me to take physical possession of a bunch of damn paper. It’s also aggressive to try to require me to tell my address. And it can’t possibly be required under the law to allow agencies to transfer records this way.
The CPRA is very clear, at §6253(a), that “every person has a right to inspect any public record”. But every person doesn’t have a mailing address. Every person doesn’t even have a house to live in. Every person doesn’t have space to store a bunch of paper nor the physical strength to carry it around. Requiring this is pure aggression, in this case aggravated by the fact that it’s actually illegal for Klein to insist on providing these emails on paper. It’s essential to resist, so I responded promptly:
Don’t be silly. Let’s pretend it’s sometime after 1985 and you send me a download link. If for some completely kooky reason you have in fact printed out all these emails on paper I will come in and make my own electronic copies of them. If this is the case please provide a physical address where the documents may be inspected as required by law.
And Erica Klein wrote back immediately! Which is a sign among lawyers that they’re losing their shit, because they’re trained14 to wait a while before responding, think about what they’re saying, and so on. But Klein’s response, sent four minutes after mine, here at least still wears the mask of sanity:
My client printed out these documents so they could be reviewed by my office. I do in fact have paper copies available to be sent to you today via Priority Mail. If however, you refuse to provide a physical location, I certainly will be more than happy to take the additional time required in order to scan each document and send to you in digital format.
Your cooperation is, as always, much appreciated.
Erica B. Klein | Attorney | Hansberger & Klein, A Professional Law Corporation
But see how she’s not giving up on her obstructionism? Rather than providing these emails in native format as the law explicitly requires, now she’s going to scan all the printed pages and transmit the scans electronically. But of course scans of printed emails are about as useless as the printed pages themselves. It’s possible to submit them to optical character recognition, so each document can then be searched, but the accuracy isn’t good and they still can’t be sorted effectively or searched easily for multi-word phrases.15 So I wrote back yet again with my objections:
Rather than touting your happiness, and more than happiness, to take the additional time to inadequately mitigate a circumstance that you and your client voluntarily created, why don’t you consider how happy you might be to take the additional time to comply with the CPRA at section 6253.9(a) and provide these emails in native email format as the law requires and my request specifies?
It will be more useful to me to have your scans than to have nothing at all, and if you’re going to get fussy about complying with the law’s explicit mandate I will be glad to have them while we continue to discuss your obligation to provide EMLs. But such a production will in no way satisfy your client’s obligation and will, as far as I am concerned, certainly not close out this request.
And I object to your characterization of my disinclination to provide a physical location as a refusal. For all you know about it I don’t have a physical location at which I can receive mail. I certainly don’t have a physical location in which to store any random stacks of paper you choose to send to me. The CPRA at section 6253 and elsewhere requires your clients to make these records available to “any person”, even those without physical locations at which mail can be received or which uncontrolled shipments of paper can be stored.
And with that, friends, Erica Klein completely flipped out. She immediately fired off an utterly intemperate response, calling me names, revealing that she’d researched me extensively, revealing her utter inability to read and comprehend English sentences, changing her signature line to read “Partner” rather than “Attorney,” and, importantly, agreeing to do what I asked!
My offer to mail you responsive documentation was to endeavor to provide you responsive documentation sooner rather than later. Despite your continued display of disrespect and unprofessionalism, this office has continued to be cooperative with you. While you do have a physical address, several in fact, all which can be easily located using the internet, as a show of respect in inquired as to your mailing address so as not to be presumptuous that you would willingly receive mail without invitation.
Mr. [Kohlhaas], your preoccupation that your intellect and interpretation of law surpasses that of anyone else, specifically those of my office and that of my client(s) is unfounded. We are well aware of what the law requires. We are also profoundly aware of the requirements under FERPA as well the limited funds, resources and time available to our client, a non-profit public benefit corporation. So, take a moment to attempt to show a modicum of respect. The offer was merely an offer [Mike]. There was no ill intent; And certainly, no need for your condescension and rudeness. Your construal of every communication as a deliberate effort to avoid legal obligations is blatantly self-serving. Further, the scope and breadth of the initial request appears a deliberate misapplication and use of the public records act in violation of the spirit of the law. Such actions seem counter-intuitive to past arguments you’ve asserted against other governmental agencies. You have information you seek, fine, but you will do so respectfully, and with the understanding that the organization is a public school and their first priority is to the students.
It seems necessary we, or rather I, push re-set in order to tame the fictitious dispute you have created between you and my client (and my office). There has never been an issue with providing information [Mike], we’re merely protecting student information. My client does not return from Winter Break until the week of January 10, 2019. I will do my best to obtain a link to the FERPA compliant responsive information as soon as possible, however, as I am not privy to the return date of my Client’s IT department, I cannot guarantee your digital copy on a date certain until after my Client returns to Spring Session.
Happy New Year.
Erica B. Klein | Partner | Hansberger & Klein, PLC
So at this point, even though she’d conceded every point, I just trolled her a little tiny bit. I don’t recommend this, but it happens:
Thank you, Ms. Klein, for agreeing on behalf of your client, finally, even in the face of my ignorant, self-serving, unprofessional, and disrespectful reasoning, to comply with the plain letter of the law!
And then she threatened me, albeit incoherently in her rage, with a defamation suit!
Your response mischaracterizes the facts. Be advised that any abuse of the plain letter of any law for purposes of defamation and libelous actions are prohibited by law.
Erica B. Klein | Partner | Hansberger & Klein, PLC
And I did answer this:
Dear Ms. Klein,
Thanks for the tip! I will be interested to see an argument that my statement that you have agreed to comply with the law constitutes defamation!
And that’s where the matter rests today. Maybe they’ll hand over the goods on January 10. You’ll be the second to know if they do. I tend to think my December lawsuit against The Accelerated Schools will suffice to make them comply. But if not, off to court. Stay tuned!
Oh, P.S.! Listen, due to the length of this post I am not commenting on Erica Klein’s many dishonest claims about my intentions, my misuse of the CPRA, and so on. These are also all lies, though, and don’t forget it. They will be used against you if you’re making effective requests. Asking for records that you want or need in order to understand and influence government action is not misuse of the CPRA. It is never misuse of the CPRA. And the intentions of the requester are irrelevant as an explicit matter of law, found in the CPRA at § 6257.5, which states:
This chapter does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.
Image of Erica Klein, name partner in metaphorically mobbed-up charter law conspiracy Hansberger & Klein is ©2019 MichaelKohlhaas.Org and has the usual cladistically measured familial relation to this protoplasmic type of EK here.
- I don’t mind empowering non-Angelenos but I’m not going to spend endless amounts of time thinking about it. That one hundred percent include Glendale-ians! Not. Los. Angeles.
- There’s an important question of activist ethics here that I’m leaving unaddressed. Someday I mean to write a post or two about this, but I’ll just drop a line or two here. It’s the question of helping activists whose goals I disagree with or are actively appalling to use the CPRA. I talk to a lot of activists about their requests for records, and even front for people who don’t want their names attached to requests, but do I help a Nazi get records? My tentative and as-yet-unthought-through position is that I support everyone’s equal right to enjoy government compliance with the CPRA but that I’m under no ethical obligation to use my resources, including my time, to help them out. So all you Nazis reading this, keep reading if you want to but if you want my personal advice or help then you can fuck right off.
- For the most part at no charge. Details below.
- These ICEes use a “P” instead of a “C” in their acronym due to their fundamental dishonesty, along with which I shall not go. I mean, except to the extent that I go along by using the mendacious acronym, but that’s only because minimizing confusion serves my ultimate goal of exposing and ending their depredations on the public realm.
- These are, you might recall, the same folks whose various conspiracies with LAUSD board member Nick Melvoin were revealed in a series of posts based on an insurmountably important release of emails from Green Dot Charter Schools.
- The agency shall make the information available in any electronic format in which it holds the information.
- Note that “respond” doesn’t mean “produce.” It just means that they have to acknowledge the request and provide some information about production. Under certain circumstances this response can be put off for an extra two weeks, but they still have to give notice within ten days that they’re doing that.
- I also wrote back to create a copy of her PDF letter with my original subject line associated with it to allow me to search for associated communications later. Another common microaggression practiced by all these obstructionists is to alter subject lines, elide specific references to requests, refer to requests by the wrong dates, and so on. I’m not exactly sure what they gain by this other than to reveal themselves as the whiny-babies they are. Maybe they’re hoping to muddy the record on the chance that if/when the matter ends up in court it will complicate the process of my collecting evidence? I’m just not sure but it’s so common it seems like they must be doing it for some reason.
- Tangentially, I have evidence that they’ve been using essentially the same response letter promoting this completely wrong theory at least since 2017. If you know of earlier examples maybe you could share them with me at firstname.lastname@example.org? I’m kind of interested in tracing the genesis, the ur-text, of the letter they all send out, changing very little except the amount of payment proposed, which varies wildly, randomly.
- It’s also essential to give them a response deadline. This way if you end up in court because they stopped responding they won’t be able to claim that they were about to respond the day after you filed the suit. In my experience public agencies pay exceedingly close attention to these deadlines, although they never ever admit that they’re doing so.
- Thus the popularity, I think, among opposition lawyers of ultimately doing what the law requires, which of course is ultimately in the best interest of their client, even while failing to admit that they’re doing it, or even sometimes asserting that they’re not doing it, or that they’re doing it because they’re so nice and kind even though, they will say, they don’t have to.
- This is an instance of what a CPRA comrade of mine calls “burdensomeness by design.” Agencies self-impose methods that are far, far more difficult than what the law actually requires of them and then refuse to fill requests properly based on how much work their illegal self-selected systems impose on them.
- I’m not going into it in this post, which is already far too long, but the only mechanism for enforcing the CPRA is to take agencies to court. The fact that this remedy is pragmatically out of the reach of most requesters is yet another incentive for agencies to stall and violate the law. For the most part there’s nothing requesters can do.
- I mean I think they’re trained, they all do it and it makes sense so I assume they learn it somewhere.
- There are serious technical limitations here that aren’t that interesting to most people, but if you want to hang out sometime and talk geek talk about PDFs and batch-processing in the command line and so on, drop me a line at email@example.com!