Confidential Attorney Client Conversation Between Deputy City Attorneys Mike Dundas and Strefan Fauble And CD13 Staffer Dan Halden Reveal That The City Denies Requests As Burdensome Even Though They Know A Judge Wouldn’t Buy Such An Exemption Claim — That They Consider Whether A Requester Will Actually Sue Them When Deciding Whether Or Not To Deny As Burdensome — Which Is Intrinsically A Violation Of The CPRA — And That Mike Dundas Understands The CPRA Far Better Than Strefan Fauble

This post is about a confidential email conversation between Deputy City Attorneys Mike Dundas and Strefan Fauble and CD13 staffer Dan Halden about a CPRA request of mine. If you’d like to read the email without reading my nonsensical rantings about it you can find it here on Archive.Org.

If you spend any time at all asking the City of Los Angeles for copies of public records you’ll have realized that compliance with the Public Records Act is not a high priority of theirs. They violate it constantly, in small ways and large, intentionally and out of sheer careless indifference. They violate it because they can afford to pay out any number of settlements and most people won’t sue them. They violate it even though compliance with the CPRA is a fundamental right guaranteed by the Constitution of California.1

And now, although I’ve long suspected it to be true, I have proof that the City Attorney’s office actually advises them to decide whether to violate it based on whether or not they think the requester will sue them which, as Strefan Fauble so succinctly puts it in a top-secret confidential April 2019 email conversation, “would involve a lot more work.”

But it takes resources to sue them, so effectively this policy favors rich requesters and corporate requesters, even though the Constitution2 guarantees access to every person, which clearly means equal access. It’s surely no coincidence that rich people and corporations are much, much less likely to be critical of the City. This story begins with a request I sent to Dan Halden on March 12, 2019. I asked Halden for:

… emails between you and either Eddie Guerra or Shannon Geaney from January 1, 2018 through February 28, 2019. I need to see all attachments as well.

Halden waited out the statutory ten days before responding and then sent me this little slab of copypasta extending the response time by 14 days.3 And then, after having illegally waited out the 14 days, Halden denied my request as burdensome because there were about 600 PDF pages to redact:

An initial search for materials matching your request has yielded well over 600 documents. These documents will be exceptionally labor-intensive to redact. Due to the extraordinarily large amount of time and resources needed to respond, the City cannot respond to your request in its current form because the public interest in producing the redacted documents is clearly outweighed by the public interest in not expending the large amount of time needed to do so. Please provide a more focused and targeted request.

This, as usual, is idiotic on its face. I can personally read and redact about 500 pages per hour. Even LAPD’s notoriously dishonest Director of Constitutional Policing Lizabeth Rhodes, who lies like a cop,4 admits that LAPD Discovery can process 150 pages per hour. This is low, because it’s a self-serving lie, but accepting it for the sake of argument suggests that CD13 would need fewer than four hours to process these records.5 So I answered Halden, pointing out that he was full of crap, and threatening a lawsuit.

Halden then forwarded my email to Deputy City Attorney Strefan Fauble, who at that time was staffing CPRA requests for Council offices, and asked what to do. Fauble’s response shows very clearly that compliance with the law is not the City’s main priority. Doing as little work as possible is a higher priority as is keeping the records out of my hands:

Let’s pull Dundas into this discussion since he has dealt with [Kohlhaas] most. Mike, read down the email chain. [Kohlhaas’s] request — which, his argument to the contrary, seems to lack a subject matter — would require Dan to go through about 600 emails. Many of the emails would be exempt, I expect, and many would require lots of redaction. I think under the balancing test that it’s clearly not in the public interest to have Dan dedicate the time needed to review and redact the 600 emails just so [Kohlhaas] can see the kinds of conversations Dan has with the officers at issue. What do you think — considering also your judgment about whether [Kohlhaas] would sue (which would involve a lot more work?)

Now, of course the City is required to comply with the CPRA when the CPRA requires compliance. Whether or not a requester is likely to sue cannot conceivably be a reasonable factor to consider when deciding whether to produce records or not. So Fauble is determined to withhold the records unless Dundas thinks I might sue, in which case Fauble thinks it might be easier to produce. Dundas, who was once described to me by a well-known CPRA lawyer as “slightly less insane than the rest of the City Attorneys who handle CPRA over there,” is more realistic than Fauble:

[Kohlhaas] or not, I don’t think any writ judge down the street would think 600 documents was too many to redact, unless the redactions completely consume the readability of the records themselves. Without knowing what was in these records, it would be my advice to remove the exempt records, then redact and produce the rest, unless there wouldn’t be any content left after redacting all of the confidential information. The balancing test is best applied to “burdensome” requests when the search would waste time searching for a needle in a haystack or when there are thousands of records that may be of scant value to the public. As to whether [Kohlhaas] would sure, I don’t know. I am not even sure he knows at this time.

Of course Dundas is correct about the writ judges. As of today I’ve filed 24 CPRA lawsuits and never once has a judge suggested that a few hundred records were enough to support a denial on “burdensomeness” grounds. In fact, they don’t seem to think that any number is too many as long as the respondent has enough time to process them.6

He’s also correct to ignore Fauble’s silly claim that my request “seems to lack a subject matter.” The CPRA doesn’t require a subject matter, only that the request is for reasonably identifiable records. The subject may come into play in court as part of a public interest analysis, but it’s certainly not required to have one to ask for the records. So Dundas ignores Fauble’s claim, which is surely the most judicious way to handle such ignorance from one’s professional peers.

Halden took Dundas’s advice and told me that it would take him three or four months to redact and produce the emails.7 Which shows the value of pushing back, of course. It also shows that the City of LA, which continues to deny requests as “burdensome” when there are only a few hundred responsive pages even though their attorney advises against it, does not care about compliance in itself. They care about not causing themselves extra work by being sued.

And remember they weren’t sure if I would sue them or not. If they’re pretty sure they will get sued they sometimes speed things up. For instance, the L.A. Times and famed CEQA/CPRA attorney Robert Silverstein get excellent and speedy service from the City. And that, if you made it this far and are still interested, is the subject of the next installment of this series about confidential CPRA advice from the Los Angeles City Attorney!

  1. At Article I Section 3.
  2. Of California, of course.
  3. Waiting ten days if ten days aren’t necessary, as they clearly were not in this case, is also a violation. But it’s not the kind of violation that the CPRA authorizes lawsuits for, so it’s effectively meaningless. (Which is an oversimplification. It’s not meaningless, but it’s not a cause of action under the CPRA itself. There are other routes to sue over this kind of violation but they’re riskier since they don’t guarantee fee shifting for prevailing requesters, like the CPRA does. Judges grant fees in CPRA actions because they’re required to, but they don’t seem to like it. One must tread carefully along these paths.
  4. Which is to say continuously, incoherently, and without needing any reason beyond having words to say.
  5. Halden said “documents” and I’m saying “pages.” PDFs have an objective number of pages but emails do not, until they’re exported to PDF. The City refuses to produce emails as email files and in response I refuse to recognize a page/document distinction for emails. In any case, if they weren’t so fixated on never doing anything I ask them to do, it would be so much easier to redact them, because email files are plain text and can be redacted with search/replace. So my time estimate is probably wrong, but it’s surely wrong on the high side, so it’s OK.
  6. By which I mean that judges would probably be unsympathetic to a requester who sued because the City didn’t produce X documents quickly enough, but I believe they’d be very sympathetic indeed to a requester who sued because the City wouldn’t produce X documents after the City explicitly refused to do so because the number X was too high.
  7. Which is ridiculous also, because that’s like 150 documents per month, about 35 per week, about 7 per workday. Really, I can’t imagine this taking more than two hours net, which Halden ought to be able to knock out in a couple weeks easy, depending on how many other requests of mine were pending at the time. Which matters because I’ve never expected the City to process my requests other than one at a time in order, which they refuse to do because otherwise they wouldn’t be able to whine about how many requests I make.
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