On September 20, 2020, I sent a request for some old reports to Mark Smith, the Inspector General of the Los Angeles Police Department. On April 16, 2021 Smith produced the responsive records. This is the story of what happened in the seven months between the request and the production!1
On September 22, 2020, just two days after receiving my request, Police Commission Executive Director Richard Tefank emailed Deputy City Attorney Soraya Kelly who, along with Carlos De La Guerra, staffs CPRA requests for the Commission and the OIG. He wanted legal advice, and he had some very … colorful … ideas about my work:2
So now I receive this email from [Kohlhaas].
From what he is doing to my office and the OIG I feel this guy is harassing us via CPRA requests. Is there any action that can be taken. Quite frankly I don’t have the time for these games.
It’s clear from this that Tefank and Mark Smith had been talking, and they weren’t happy with me! Their default attitude towards people who expect them to follow the law they voluntarily made themselves subject to is that they’re being harassed. Meanwhile, on September 29, 2020, precisely when required to do so by law, Smith sent me a letter claiming a 14 day extension to respond, in which he stated that he would in fact respond by October 13, 2020.3
And Tefank’s anxiety about my requests got worse! Just three days after Smith sent me that extension letter Tefank sent a heartbreakingly plaintive email to Smith,4 LAPD Constitutional Cop5 Lizabeth Rhodes, CPRA cops Bryan Lium and Marla Ciuffetelli, and a bunch of deputy city attorneys, including Soraya Kelly, Julie Raffish, Debra Gonzalez, and Carlos de la Guerra:
There’s no way to know what they talked about at this meeting,6 but if it was consistent with the advice those lawyers usually give they surely discussed ways to stall my requests without getting themselves in too much trouble. Even if that’s not what they talked about, it’s certainly what Mark Smith ended up doing!
On October 13, 2020, as he said he would, Smith sent me a letter7 stating that he did not understand my request. This is already a violation, by the way. Presumably when he read the request, which he must have done on or before September 29, 2020, he knew that he didn’t understand it. Rather than asking for clarification at that time he stated that the unusual circumstances extension applied.
But if he didn’t understand the request at that time he would have no way to know that it did. The determination of “unusual circumstances” must be based on the factual nature of the responsive records. So either he lied on September 29, 2020 about the unusual circumstances and failed to ask for clarification at the time he realized he didn’t understand, or else he lied on October 13, 2020 when he said that he didn’t understand.
One way or the other Smith is a liar, and he lies in the service of violating my constitutional right to prompt access. In either case, as a liar and an outlaw, he certainly shouldn’t be the boss of making sure the LAPD isn’t a lying outlaw organization. Oh, but it gets so, so much worse! On October 27, 2020 Smith’s staffer Julie Buchwald emailed Tefank about the request, with a list of potentially responsive records attached:
From: Julie Buchwald <firstname.lastname@example.org>
Date: 10/27/20, 3:33 PM
To: Richard Tefank <email@example.com>
CC: Mark Smith <firstname.lastname@example.org>
Per our conversation yesterday, here are the titles and dates of the reports, most of which I believe would have been approved by the Commission at some point preceding 2012.
Please keep me posted if you all can confirm that was indeed the case. (You all can keep track however you want… maybe easiest to highlight the ones you do NOT have any record of receiving.)
P.S. Apologies; I know there are many items to search.
Remember, I asked for a bunch of reports? Well, Buchwald sent Tefank a list of reports and asked him to determine which had been approved by the Commission. But I didn’t ask for reports approved by the Commission, just for the reports. In other words, Buchwald made up an extra search criterion, unilaterally added it to my request, and then tasked Tefank with implementing it even though, as she says, it’s a lot of (useless) work. Tefank replied the next day, asking her if she needed copies, and Buchwald told him:
This is the smoking gun, folks. According to Buchwald she had the responsive records on October 28, 2020. All she needed to know, or at least that’s what she told Tefank, is this thing about Commission agendas even though it had nothing whatsoever to do with my request. She doesn’t need to know it, she just made it up. If she had the records on October 28, 2020 they should have been reviewing them and getting ready to produce.
In fact, since my request was six weeks old at this point she should have finished reviewing and producing them.8 The law very clearly forbids stalling. See just for instance §6253(d), which says unequivocally that “Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.”9
Anyway, keep it in mind that Buchwald had the responsive records on October 27, 2020. Which makes this November 9, 2020 letter from Mark Smith even more remarkably dishonest than the guy usually is. As far as producing these records, which his staff already had in hand, he said:
What a liar this guy is! He says “additional efforts have been undertaken to locate OIG reports prior to 2013,” which is certainly misleading given that a full two weeks prior to this Smith’s staffer Buchwald told Tefank that “we have them all.” So whatever these “additional efforts” were, they were already successful, which presumably Smith was aware of.
So why four months? To review a bunch of reports that had already been published at the time? He just invented it out of thin air because all those lawyers at that meeting told him that he wouldn’t get busted for this kind of thing. Which makes his claim that it was an estimate very deceptive, and his claim that it might take longer is evidence that he was planning to delay further and pretend that there was some reason for it.
Anyway, recall that in October 2020 Julie Buchwald told Richard Tefank that “[h]owever long it takes is fine.” Well, on January 4, 2021 Buchwald emailed Tefank for an update on his progress, but don’t worry! She was in no way whatsoever was trying to rush him along. She was just thinking of the deadline that Mark Smith gave me in November:
From: Julie Buchwald <email@example.com>
Date: 1/4/21, 11:12 AM
To: Richard Tefank <firstname.lastname@example.org>
CC: Mark Smith <email@example.com>
Hi, Richard. A very happy new year to you. I hope you and your family are doing well. I am following up on our exchange of a couple months ago (see below) regarding the old OIG reports that your staff was going to check, as related to a CPRA request, to see if the
reports were formally itemized on old BOPC agendas.
Our deadline for this (that we told [Kohlhaas]) is coming up in a couple of weeks, on January 18th, 2021. Let me know if you all will be needing more time and we can inform accordingly.
Thanks so much; please let me know in due course.
It took me a while to figure out why she thought that January 18th was some kind of deadline for them, but I eventually did. I sent Smith the request on September 20, 2020. In November 2020 he told me it would take four months, and apparently he meant four months from date of receipt, which is approximately January 18, 2021. Buchwald wasn’t in any hurry to produce on time, though. She was perfectly happy to have Tefank tell her he needed any amount more time for any random reasons.
Tefank’s staffer Rebecca Munoz replied the next day, providing an updated list of reports and stating that she had to request some archived agendas from “records retention,”10 in other words she was still working on the pointless and intentionally time-wasting task that Buchwald had set for Tefank. And Buchwald was totally fine with this, of course. She’s not in a hurry. She answered Munoz thus:
Which is just incredible. First, as before she doesn’t care when the material is ready. She just needs a date to tell me, and she doesn’t care if the date is based on the real situation with the records, she just needs someone to make something up, which is where her vague “[m]aybe 2-3 more months?” comes from. Just give a date, any date!!
But I guess even just giving a date, any date, was above Munoz’s paygrade, because Tefank replied Buchwald, apparently forgetting that she’d told him in October 2020 that she already had copies of the reports, asking “Do you need copies of the reports or just the date the items were on the Commission agenda?” Buchwald’s response:
Don’t forget, of course, that my request had nothing to do with whether reports “ever went to Commission.” That’s something that Buchwald, or Smith, or more likely one of the City Attorneys, invented to waste time. At this point Buchwald had had the responsive records in her possession for almost three months and had no reason whatsoever for not producing them.
I don’t know if Tefank or anyone ever answered Buchwald, but on January 18, 2021, which is two weeks after Buchwald learned that Tefank’s office didn’t have an answer for her yet, Smith told me that it was going to take another three months, but again, that was, Smith said, just an estimate.
Now, Mr. Smith is a lawyer, and if you’ve ever been deposed you’ll know that lawyers are literally obsessed with the distinction between estimates and guesses. Smith’s production dates are clearly guesses. No one’s taking any facts about the records into account, they’re just picking random dates out of the air.
This all wouldn’t be as bad as it is if Smith produced records when they were actually ready, but he does not. He invents random dates and then proceeds to stick to them as if they weren’t entirely made up, as if they had some actual meaning. The first guess, four months, wasn’t based on locating the records, because they already had them. The second guess wasn’t based on anything at all to do with the records, Buchwald just pulled it out of nowhere.
But on April 16, 2021 Smith produced the records with no exemptions claimed. Now, recall that they had the records on hand on October 28, 2020 and quite likely even earlier than that. Then they randomly announced that it would take them four months to produce. On January 18, precisely four months, like to the day, from when Smith received my request, he told me they needed another three months, a figure which seems to have no basis other than Buchwald’s suggestion to Munoz that maybe it would take two or three months, she just needed a number to tell me.
If they were being honest they wouldn’t have involved Tefank’s office with this nonsense about old Commission agendas and they would have produced the records as soon as they’d reviewed them for exemptions. There’s no way anyone could accurately predict seven months in advance that review would take precisely seven months. Clearly Smith put the dates in his calendar, or Buchwald did, or something similar, and then just sat on them until the putatively estimated date rolled around. Illegal.
And all of this violates the CPRA’s requirement that access to records not be delayed or obstructed, and it violates the State Constitution’s mandate that local agencies comply with the CPRA. And Mark Smith is the freaking inspector general of LAPD. He’s meant to make sure the cops don’t break the law, not to sit around conspiring with his staffies and a scurvy crew of Deputy City Attorneys to illegally stall records production. He ought to resign. Will he? Probably not.
- Spoiler: A lot of illegal bullshit is what happened. Read on for the extensive evidence!
- He’s since calmed down a lot about my CPRA requests and is presently one of my most responsive clients. If the rest of the damn “City family” were as conscientious as Tefank we would know a lot about most things and something about the rest instead of nothing about most things and very little about the rest.
- This is based on the CPRA at §6253(c), which allows such an extension in “unusual circumstances” as defined in the law. Smith claims this every single time, which is already a violation given that “every time” is the opposite of unusual, but there’s very little point in arguing about this kind of passive aggression since there’s probably not a cause of action in the CPRA for it. There may be other ways to handle it, and it’s possible that you may hear about one or another of them in the future!
- Psych! Not heartbreaking but idiotic. Just a typo on my part! Easy mistake to make.
- Rhodes is in charge of something LAPD is pleased to call “constitutional policing,” which seems to be yet another bitter cop joke given that all she does is find ways for LAPD to evade constitutional restrictions and requirements that haven’t yet been called out by the courts as illegal.
- No way via the CPRA, anyway. Clearly the conversations are privileged. But I do occasionally lay my hands on privileged material, mostly through the kindness of strangers. See, e.g., the very email we’re discussing now, so it’s not impossible that at some point we’ll know what happened.
- Surely ghost written by Soraya Kelly, which I state mostly on the grounds that Smith is an illiterate fool whereas Kelly, evil as she may be, is no fool and certainly isn’t illiterate.
- She didn’t end up redacting anything from the final production in April 2021, and there’s no reason to expect that she thought at any point that she would have to redact anything.
- And delaying and obstructing were exactly what Buchwald was up to. Not only that, but Tefank told her it would take him a while and Buchwald replied: “However long it takes is fine.” As before, this is wrong. It’s illegal to delay, and this is an invitation to delay.
- Whatever that is. I have a request in to Tefank concerning that interesting question.