Also as usual they produced emails and their attachments as huge, unwieldy, non-text-searchable PDFs with highly degraded quality even though I asked them for MBOX files and the law requires them to produce MBOX files.2 They also produced attachments this way. You can see from the image what this process does to image files3 but imagine how incredibly useless it makes a spreadsheet! The CPRA’s requirement, found at §6253.9, is clear:
6253.9. (a) Unless otherwise prohibited by law, any agency that has information that constitutes an identifiable public record not exempt from disclosure pursuant to this chapter that is in an electronic format shall make that information available in an electronic format when requested by any person and, when applicable, shall comply with the following:
(1) The agency shall make the information available in any electronic format in which it holds the information.
(2) Each agency shall provide a copy of an electronic record in the format requested if the requested format is one that has been used by the agency to create copies for its own use or for provision to other agencies. The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.
They refuse to do it, though, as they have been refusing since at least 2014. They change their reasons all the time, often in response to my pointing out that they’re lying about their capabilities. These days they’re not denying that they can produce MBOX files because everyone knows by now that they can do it even they used to say explicitly that it was impossible.4 Their current argument, also a lie, is that it’s impossible to redact MBOXes, so they can only produce as PDFs, which they can redact.
But this time we’re not willing to settle with them! We’re about to litigate this file format issue! The hearing is on November 11 at 1:30 before James Chalfant. Here’s the trial brief. There’s also a declaration from Internet and Apple Computer pioneer Martin Haeberli explaining the reasons why producing emails as MBOX files is far superior to PDFs and also explaining two perfectly workable ways to redact them in this form.5 Read on for excerpts from the brief and stay tuned for news!
The distinction has serious impacts on the quality of access and useability of email records. MBOX and EML formats preserve the record in what is substantially the original format: like the emails in your inbox, emails are accessible as individual records, all metadata is preserved, the emails remain text-searchable, organized, and in order, the text is not distorted, and attachments remain in their original formats. By contrast, the City’s PDF productions change email records significantly and resemble something like your entire inbox printed onto sheets of paper and collected, out of order, into a single three ring binder. The City’s PDFs collect hundreds of emails into a single PDF file, all metadata is destroyed, the emails are not text searchable, the emails are not in chronological order and replies are not grouped together with underlying messages, text is arbitrarily distorted, attachments such as excel spreadsheets and image files are also converted to PDF and can be distorted or rendered useless, and the same emails are re-printed dozens of times as responses in long email threads. The differences in quality of access and useability are stark.
…
The City’s preference to redact emails in PDF format does not give it the right to refuse to provide email records in MBOX format. There is nothing in the CPRA which explicitly authorizes an agency to restrict access to certain formats or to withhold non-exempt information based on its preferred redaction method. Were that the case, agencies could attempt to obstruct public access by adopting redaction methods that destroy information and provide records in formats that are difficult to use, reproduce, analyze, or publish. Those practices would violate the CPRA’s requirement than an agency provide all non-exempt information (§ 6253(a)) and that an agency not obstruct access to public records. § 6253(d).
As one hypothetical, imagine an agency that refuses to stock black felt pens (“sharpies”) to redact words or lines of text from paper records. Instead, the agency redacts by applying black paint using a 5-inch-wide paintbrush, or by applying duct tape, before making a copy of the record. Of course, such methods would result in not only the exempt text being obscured, but all of the text around it being obscured as well. Such a practice would be illegal and it would be no defense for the agency to claim that such methods are only used when redaction is necessary.
In another hypothetical, imagine this agency ceases to stock black paint and duct tape and now claims that it has no way to provide redacted paper copies. Accordingly, when the agency makes even a single redaction to one record within a responsive set, the agency provides the record as follows: first, the City lays out the records, 5 pages at a time, on a table, and places common office bric-a-brac (staplers, pen holders, paperweights, etc.) over any text it claims is exempt (which also obscures surrounding non-exempt text); then, the City takes a polaroid photograph of the table; the City repeats the process until all pages of the record have been photographed, and then the City “produces” the record by mailing all of the polaroid photographs to the requestor. This practice, which would result in non-exempt information being withheld, and would provide the records in a form that is difficult to use, reproduce, analyze, or publish, would also be illegal.
Just as in the hypotheticals above, here the City’s practice is also illegal. The City’s choice to exclusively redact emails in PDF format results in non-exempt metadata and attachment data being unlawfully withheld in violation of § 6253(a). Further, it obstructs access by producing records which are unnecessarily difficult to organize, review, and publish in violation of § 6253(d).
Further, because the City denies access to MBOX when it makes even one redaction to one email among a set of hundreds, the practice encourages the City to make dubious redactions in order to justify providing PDF records which are more difficult for the public to review, understand, and reproduce.
In conclusion, the City is obligated to produce records in the format of the requestor’s choosing, and nothing in the CPRA authorizes the City to refuse to provide emails in MBOX format, even where the City makes redactions to responsive emails. Further, the City’s practice of only producing emails in PDF format results in destruction of non-exempt information and obstructs access to public records, in violation of the CPRA.
- Which, in turn, means that they’re going to pay my lawyer, the incomparable Abenicio Cisneros, in the end.
- MBOX files are the way emails are stored internally on most servers. The City produces emails in MBOX format for internal use and probably, although I have not been able to confirm this, for discovery purposes when it gets sued.
- Obviously it doesn’t have to do this to image files. They use commercial eDiscovery software to process emails after they extract MBOXes and no commercial product does this to a JPG as default behavior. Clearly the City set it up to do this and the only plausible reason for doing so is to fuck with me.
- Not just impossible for them, but impossible period. This is completely untrue.
- A particularly ironic aspect of this is that redacting emails in this format is much faster and much more accurate than the methods the City insists on using now. I’m pretty sure that the City likes this fact because they can rely on it to claim that a request would take too much work to fulfill and that therefore they’re denying it via §6255(a).
