Category Archives: Public Records Act Pragmatics

Lawsuits, Public Records Act Pragmatics

A Coalition Of Poverty-Focused Community-Driven Advocacy And Legal Aid Organizations Filed An Amicus Brief With The California Supreme Court Asking That They Review The Abominable Court Of Appeals Opinion In National Lawyers Guild V. City Of Hayward — Which Held That Agencies Can Charge For Time Spent Redacting Electronic Records — Now Being Used By The LAPD To Functionally Deny Everyone Access To Emails — This Was In November 2018 But I Just Recently Got A Copy — The Supremes Did Agree To Hear It — And I Also Have A Copy Of The Stunning Opening Brief

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Don’t know if you’re aware, but in September 2018 the California Court of Appeal held that local agencies could charge CPRA requesters for staff time for redacting electronic records. In particular, the City of Hayward charged the National Lawyers Guild more than $3,000 to redact some parts of bodycam videos. It’s well-established for paper records that agencies must allow inspection at no cost and if copies are requested, can charge only the direct cost of copying.

The Court of Appeals based its opinion on the CPRA’s much-abused §6253.9(b)(2) which states that an agency can charge a requester for the bare privilege of inspecting a record under a small set of very specific circumstances:

… the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when … [t]he request would require data compilation, extraction, or programming to produce the record.

The court’s reasoning was that redaction of a video constitutes extraction required to produce the record. Sane people can see, however, that the video already exists. Nothing is required to produce it. This section is talking about e.g. running queries against databases, where the requester only wants certain information and the results of the query constitute a new record that “would require data compilation, extraction, or programming to produce.”

And as you can imagine, after this opinion was published, obstructionist anti-CPRA lawyers all over the state started drooling on their pillows in glee. For instance, Carol Humiston, the soon-to-be-disbarred Rasputinian ear-whisperer to transparency-averse business improvement districts all over Los Angeles, advised her clients on the basis of this decision to assert that if I wanted to see any more of their damn emails I would have to pay for them to buy Adobe Pro so that they could redact them.

She backed off on this outlandish claim after I pointed out repeatedly that emails weren’t found in the wild as PDFs so that there was no case to be made for purchasing an expensive PDF editor to do a job that the built-in text editors that come with every computer operating system could do better. However, the LAPD also glommed onto this case, and the City Attorney’s office began theorizing madly, and now if you submit a request to LAPD for emails through NextRequest you’re met with an aggressive notice warning you that you’re going to pay and pay and pay unless you withdraw your request right now, and the notice explicitly cites the case.

So yeah, this opinion sucks and sucks big time, and it doesn’t just suck in theory, it’s actively sucking in practice even now as I write these very words. But at least it was appealed to the California Supreme Court. And at least the Supreme Court agreed to hear it. And papers have been filed, but it turns out to be really hard to get pleadings out of the Supreme Court.

But recently I was lucky enough to obtain a couple of interesting items. Here’s an amicus letter from a coalition of public interest law firms and activist organizations explaining the harm that the decision is doing. And here’s the opening brief, which explains in well-reasoned and exceedinly convincing terms why the Court should reverse this extraordinarily bad appellate decision. Both are fabulously worth reading, and there’s a transcription of the amicus letter after the break.
Continue reading A Coalition Of Poverty-Focused Community-Driven Advocacy And Legal Aid Organizations Filed An Amicus Brief With The California Supreme Court Asking That They Review The Abominable Court Of Appeals Opinion In National Lawyers Guild V. City Of Hayward — Which Held That Agencies Can Charge For Time Spent Redacting Electronic Records — Now Being Used By The LAPD To Functionally Deny Everyone Access To Emails — This Was In November 2018 But I Just Recently Got A Copy — The Supremes Did Agree To Hear It — And I Also Have A Copy Of The Stunning Opening Brief →

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California State Government, Public Records Act Pragmatics

AB1819 Passes Assembly — Now On To Senate — A Tiny But Essential Improvement To The California Public Records Act — Will Require Agencies To Allow Requesters To Copy Records At No Charge — Using Their Own Equipment — Includes Electronic Files — Take That, Department Of Alcoholic Freaking Beverage Control!

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Assembly Bill 1819, which would require agencies to allow requesters to copy records using their own equipment at no charge, was unanimously passed by the Assembly yesterday and now it’s on to the Senate. As I wrote in March when the bill was introduced, most agencies already do this for paper records, although there are some which, in their frenzied desire to obstruct oversight by the very citizens they were created to serve, do not.

Most notable among these in my experience is the Department of Alcoholic Beverage Control which, in addition to being plagued by unchecked corruption, is also imbued with the kind of paranoiac institutional culture that enables heavily armed power junkies like Special Agent In Charge Gerry Sanchez of the Los Angeles Metro Office to feed their need to control by forbidding requesters to take photographs of records during the inspection process.

As amended the bill will also require local agencies to allow copying of electronic records using the requester’s own equipment unless to do so “would result in…[u]nauthorized access to the agency’s computer systems or secured networks by using software or any other technology capable of accessing, altering, or compromising the agency’s electronic records.”

This clause is much more consequential for my own work, as many, many, many business improvement districts, mostly under the baleful influence of Carol Humiston, the world’s angriest CPRA attorney, refuse to allow me to copy electronic records during inspection unless I pay them outrageous fees for expensive storage media.

Humiston designed this policy explicitly to impede access to records by driving up the costs, an illegal plan for which she is presently under investigation by the State Bar. Her BIDdies certainly can’t argue convincingly that use of the requester’s own equipment, e.g. a USB drive, WOULD result in compromised security (as opposed to MIGHT so result in some feverishly imagined world) this bill will likely put an end to Humiston’s illegal nonsense.

And interestingly this bill has drawn no significant opposition, not even from the California Downtown Association or other assorted BID fronts that habitually oppose even the mildest and most unobjectionable improvements in the Public Records Act.1 E.g. this year Todd Gloria’s AB 1184, which merely clarifies that existing state records retention law applies to emails.

Anyway, passing the Assembly unanimously is a good sign, and fingers crossed for the Senate. You’ll find no pre-hatch chicken counting around here, though. We saw in 2017 how determined coalitions of well-funded shadow-dwelling BIDdies can sink even very well-supported bills in the reconciliation process long after they’ve passed one house or another. Turn the page for a transcription of selections from the Assembly floor analysis of the bill.
Continue reading AB1819 Passes Assembly — Now On To Senate — A Tiny But Essential Improvement To The California Public Records Act — Will Require Agencies To Allow Requesters To Copy Records At No Charge — Using Their Own Equipment — Includes Electronic Files — Take That, Department Of Alcoholic Freaking Beverage Control! →

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Business Improvement Districts, Lawsuits, Public Records Act Pragmatics

George Yu And The Chinatown Business Improvement District Continue To Refuse To Participate In Our CPRA Lawsuit Against Them — Motion To Compel Response To Discovery Filed Yesterday — Along With Ex Parte Motion To Set An Earlier Date For Hearing Motion To Compel — How Did Anyone Decide That This Whiny Little Poobutt Should Be In Charge Of A Multi-Zillion Dollar Publicly Funded Enterprise?!

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I mean, at this point all these posts about our2 lawsuit against the Chinatown Business Improvement District are turning out about the same. We do something and he ignores it and doesn’t show up for court or file papers or do whatever he was supposed to do. And the last such item was the discovery we served on the BID in January. And he just wouldn’t answer!

Well, the trial is coming up on July 24 and our lawyers have to have the opening brief in on May 24. So yesterday we filed a motion to compel the BID to answer the discovery and also to pay $3,160 in costs incurred because of Yu’s intransigence. But there’s an extra problem, which is that there’s no room on the court’s calendar for hearing the motion until July.

This would leave no time to incorporate the discovery information into the opening brief, so we’re doing an ex parte application to hold the hearing on the motion to compel sooner.3 It’ll be heard this Thursday, May 2, at 8:30 am in Department 86 of the Mosk Courthouse. Turn the page for some excerpts from the lawyer’s declaration explaining what a bad, bad boy George Yu has been.
Continue reading George Yu And The Chinatown Business Improvement District Continue To Refuse To Participate In Our CPRA Lawsuit Against Them — Motion To Compel Response To Discovery Filed Yesterday — Along With Ex Parte Motion To Set An Earlier Date For Hearing Motion To Compel — How Did Anyone Decide That This Whiny Little Poobutt Should Be In Charge Of A Multi-Zillion Dollar Publicly Funded Enterprise?! →

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Lawsuits, Los Angeles City Government, Public Records Act Pragmatics

Since 2016 Eleven CPRA Lawsuits Against The City Of Los Angeles Have Been Disposed Of — The City Lost Two At Trial And Paid Up — And Settled Eight Before Trial And Paid Up — And The Only One They Didn’t Lose Was The One Wrongly Filed In Federal Court By A Pro Se Litigant — For A Total Of $662,722 — And Given That They’re About To Pay More Than $324,000 To The ACLU To Settle Another Loser — This Is More Than A Million Dollars In Less Than Four Years That They Wasted Because They Can Not Or They Will Not Comply With The Law — For That Kind Of Money They Could Hire A Damn CPRA Coordinator — And Some Staff — And Stop The Bleeding

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If you make requests of the City of Los Angeles under the California Public Records Act you will have learned by now that they fail to comply in almost every possible way. They delay access to records, they wrongfully withhold records as exempt, they fail to respond to requests at all, they say that there are no responsive records when in fact there are, they manipulate requesters into asking for far less than they have a right to by wrongly citing authorities, they insist on printing electronic records onto paper and then charge for copies, and so on and on and on. It’s a real nightmare.

Some of the City’s shenanigans are due to the fact that the state legislature, in its wisdom, has made judicial action the only means of enforcing the CPRA. The City, probably with reason, assumes that most requesters don’t have the resources or the tenacity to follow through with a lawsuit, so the expected consequences for their abject noncompliance are pretty minimal. And that may be an accurate assessment, it’s hard to tell because I don’t have access to all the data.

But not having access to all doesn’t mean it’s impossible to get access to some, so I have been investigating CPRA suits against the City of Los Angeles. I first started thinking about this matter in 2015 but was at that time told by Deputy City Attorney Mike Dundas4 that the City had no way of listing CPRA suits against it. But after all that nonsense happened in San Diego recently, what with their City Attorney,5 Mara Elliot, tricking Senator Ben Hueso into introducing his appalling and since-withdrawn CPRA-gutting SB 615 and then some people got a spreadsheet showing how much the City of San Diego had spent on CPRA suits since 2010.

So I thought I’d ask Mike Dundas again and what do you know!? He came through and also informed me that the City Attorney6 had assigned a cause code to CPRA suits in 2016 so that it was now possible to track them individually.7 And then, kablooie! He produced this list of ten closed cases with payouts since 2016!8 And then later he told me that there was this one other closed case that didn’t involve a payout since the City was dismissed from it on a motion.9 And according to him he will be producing10 a list of the currently open cases.11

And just the bare numbers here are really interesting, but not a good look for the City of Los Angeles. Since 2016 eleven CPRA cases against the City have been disposed of. The City went to trial on two of these and lost, paying a total of $558,690.57 to petitioners’ lawyers. The City unfavorably settled eight of them before trial, paying a total of $104,032 to petitioners’ lawyers. And the City got itself dismissed from one before trial, but only because the petitioner mistakenly filed the case in federal court.

I obtained copies of all ten of the properly filed petitions, and you can find them here on the Archive and there are also links to the individual files below. From a practical point of view, those eight cases that the City settled without going to trial are the most interesting of all. First of all, they were all avoidable. None of them hinged on any subtle interpretations of the statute. If the City had just followed the explicit requirements of the law none of them would have been brought in the first place.

I describe each of them briefly below, by the way. The City has really come to rely on not being sued, and I don’t think we have any hope at all of improving their compliance without a lot more petitions being filed. It’s my hope that these statistics along with access to these cases will encourage more lawyers to get involved in suing the City over CPRA violations. It really looks like there’s some money to be made.

But, much, much more importantly, it looks like it might be not only practically possible, not only morally desirable, but also economically feasible to get the damn City of Los Angeles to just comply with the damn CPRA in some kind of predictable way. The money they spend settling these cases could easily fund a Citywide CPRA coordinator and another staff member just to keep all the City departments on track so that we get access to our records and the City avoids an endless parade of these entirely avoidable suits.
Continue reading Since 2016 Eleven CPRA Lawsuits Against The City Of Los Angeles Have Been Disposed Of — The City Lost Two At Trial And Paid Up — And Settled Eight Before Trial And Paid Up — And The Only One They Didn’t Lose Was The One Wrongly Filed In Federal Court By A Pro Se Litigant — For A Total Of $662,722 — And Given That They’re About To Pay More Than $324,000 To The ACLU To Settle Another Loser — This Is More Than A Million Dollars In Less Than Four Years That They Wasted Because They Can Not Or They Will Not Comply With The Law — For That Kind Of Money They Could Hire A Damn CPRA Coordinator — And Some Staff — And Stop The Bleeding →

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Fashion District BID, Lawsuits, Public Records Act Pragmatics

Exceedingly Strong Trial Brief Filed In My CPRA Suit Against The Fashion District BID — The BID’s Reply Is Due In 30 Days — Trial Set For June 26, 2019 At 9:30 AM — Department 86 — Stanley Mosk Courthouse

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It’s been a while since I wrote about the lawsuit that I was forced to file in August 2018 by the unhinged intransigence of the Fashion District BID, pursued by them in line with the unhinged intransigence of their soon-to-be-disbarred attorney, the world’s angriest CPRA lawyer, Ms. Carol Ann Humiston, in order to enforce my rights to read their damn emails. But time rolls on and the trial, scheduled for June 26, 2019 at 9:30 a.m. in Department 86 of the Stanley Mosk Courthouse, is rapidly approaching.

Thus did my attorneys, Abenicio Cisneros and Karl Olson, file the trial brief with the court on Friday. The arguments are overwhelmingly powerful, and you can read substantial excerpts after the break. If I were the Fashion District after reading this I’d be ready to settle up and settle up quick. But they’re clearly on some kind of a mission with an axe to grind and a point to prove and I certainly don’t expect them to start acting sensible at this point. After all, it’s not their own money they’re squandering on Ms. Humiston’s exorbitant fees.12

As I said, you can read the specifics in the excerpts below, but there are two main general issues at stake. First is the fact that the BID relies heavily on the so-called catch-all exemption to the CPRA, found at section 6255(a), which allows agencies to withhold records when they can show “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” The key thing here is that they have to make a showing of public interest in withholding the record.

This is hard enough to do in general, and the BID hasn’t even made an attempt, but our argument is that in the City of Los Angeles such a showing is even more difficult to pull off because (a) the BID is deeply involved in attempts to influence municipal legislation and (b) the Municipal Lobbying Ordinance at LAMC §48.01 establishes an extraordinarily high public interest in disclosure of information about attempts to influence:

The citizens of the City of Los Angeles have a right to know the identity of interests which attempt to influence decisions of City government, as well as the means employed by those interests.
…
Complete public disclosure of the full range of activities by and financing of lobbyists and those who employ their services is essential to the maintenance of citizen confidence in the integrity of local government.

The argument is essentially that the BID can’t even show that there’s any significant public interest in withholding the records they withheld, but given that the subject of these records concerns the means they employ to attempt to influence municipal decisions, they really especially can’t meet this extra-high local bar.

The other main argument is against some nonsense that the BID just made up in their reply to my petition. Many of the emails they refused to turn over are in the possession of their board members Linda Becker and Mark Chatoff. They wouldn’t even search for these because it’s Carol Humiston’s opinion that board members aren’t subject to the CPRA.

You can read the technical details below, but basically our argument is that the law that makes BIDs subject to the CPRA, which is Streets and Highways Code §36612, explicitly makes the owners’ associations subject. It makes no sense as a matter of law and as of a matter of common sense that a corporation could be subject to the CPRA while its board members were not subject. A corporation only does anything through the actions of the people who run it. And that’s the quick and dirty summary. As I keep saying, read on for the excerpts!
Continue reading Exceedingly Strong Trial Brief Filed In My CPRA Suit Against The Fashion District BID — The BID’s Reply Is Due In 30 Days — Trial Set For June 26, 2019 At 9:30 AM — Department 86 — Stanley Mosk Courthouse →

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California State Government, Public Records Act Pragmatics

Letters Of Support And Opposition To Senator Bob Wieckowski’s SB518 — Which Would Eliminate 998 Offers In California Public Records Act Cases — Set For Hearing Before Senate Judiciary Committee On April 23 — Which Is This Tuesday! — Predictably The Main Opposition Is From The California Downtown Association — Which Represents Bad BIDdies All Over The State — And From A Bunch Of Other Similarly Situated Groups

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I wrote a couple of months ago about Senator Bob Wieckowski‘s SB 518, which would make a fairly technical albeit quite important improvement to the California Public Records Act. In short this bill would disallow the use of Code of Civil Procedure §998 in CPRA lawsuits. As I said, it’s a fairly technical matter, but it’s well-explained here on Wieckowski’s fact sheet:

The purpose of a §998 offer is to encourage settlement by providing a strong financial
disincentive to a party, whether it be a plaintiff or defendant, who fails to achieve a better result than that party could have achieved by accepting the opponent’s settlement offer. For example, if a defendant makes a §998 offer that is rejected and the
plaintiff fails to obtain a judgment that is more favorable than the offer amount, then the plaintiff is not entitled to post-offer costs and must pay the defendant’s post-offer costs.

But this kind of hardball negotiating tactic can have really negative public policy consequences in CPRA cases. Government agencies sometimes make 998 offers that would require requesters to settle for fewer than all the records they’re entitled to where refusing the offer puts the requester in jeopardy of having to pay significant costs.

As you probably know, though, there are an awful lot of government agencies who just really do not want to comply with the public records act. In my experience these include BIDs, Charter Schools, the City of Los Angeles, and various state agencies. Not all of these have actually made 998 offers to me, but certainly some of them have. And the problem is only going to get worse as the word spreads amongst the agencies.

That’s why it’s not surprising to find that the most significant opposition to Wieckowski’s bill comes from a coalition of lobbying groups representing BIDs, rural jurisdictions, and other small-scale public agencies, surprisingly led by our old friend Andrew Thomas of the Westwood Village BID. Their letter is absolutely full of lies, although I suppose it’s worth reading if you want to see what these people are paying their lobbyists to write.

The main point seems to be that they’re getting sued all the time because the CPRA currently makes it too easy to sue them and SB 518 would only make things worse. Obviously, though, and unmentioned by them in this letter, is the fact that if they would just comply with the law rather than spending many thousands of dollars learning how to evade it, they would never get sued at all. That, though, is clearly not the solution they’re looking for.

There is some significant support for the bill as well. Here’s a letter from the National Lawyers’ Guild Los Angeles, and another letter from Jeffer, Mangels, Butler, & Mitchell. Also worth reading, and there’s a transcription of the NLG-LA one after the break. The bill is coming before the Senate Judiciary Committee on Tuesday, April 23. I’ll let you know what happens!
Continue reading Letters Of Support And Opposition To Senator Bob Wieckowski’s SB518 — Which Would Eliminate 998 Offers In California Public Records Act Cases — Set For Hearing Before Senate Judiciary Committee On April 23 — Which Is This Tuesday! — Predictably The Main Opposition Is From The California Downtown Association — Which Represents Bad BIDdies All Over The State — And From A Bunch Of Other Similarly Situated Groups →

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Business Improvement Districts, Public Records Act Pragmatics

Carol Humiston — The World’s Angriest CPRA Lawyer — Counseled The South Park BID To Thwart My CPRA Requests By Violating The Law — And It Is Against The Rules Of The California State Bar For An Attorney To Counsel A Client To Violate The Law — Which Is Why I Filed A Complaint Against Her Yesterday — And Maybe She’ll Get Disbarred — Which Would Be Pretty Appropriate In The Circumstances — Ironically I Only Have Evidence Of This Because The SPBID Was Honest Enough To Release It To Me In Response To A CPRA Request — But As Honest As That Might Be — Doesn’t Make Up For The Fact That SPBID Executive Directrix Ellen Riotto Enthusiastically Adopted Humiston’s Illegal Advice!

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Carol Humiston, the world’s angriest CPRA lawyer, advises a bunch of L.A. business improvement districts on how to thwart my CPRA requests. She even held a seminar about me last summer for random BIDs that weren’t even her client to teach them her angry CPRA-thwarting methods. And, you know, I don’t like her methods, and I don’t like her clients, and I don’t like her. But I do like the fact that all people, even Satan-worshipping BIDdies who see violence against homeless people as a sacrament and guns as a masturbation aid, have a right to advice from counsel on how to further their goals within the bounds imposed by the law.

That last clause is essential, though. We do not want lawyers running around telling people that they ought to break the law and then using their special lawyerly powers to show them how to break it more effectively. In return for the powers granted to lawyers by society, they’re required to follow some minimal set of rules. And one of those rules is Rule 1.2.1, which states unequivocally that:

A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal.

But some emails, ironically obtained from the South Park BID in response to a CPRA request, prove that that’s precisely what Carol Humiston has done. She explicitly counseled the South Park BIDdies to engage in conduct that she knew was a violation of the CPRA. And that, friends, is why, just yesterday afternoon, I filed this complaint against her with the California State Bar. You can read the painful details after the break, both of her advice and the sections of the CPRA she advised the South Park BID to violate, including copies of the actual emails in which she gave the advice.
Continue reading Carol Humiston — The World’s Angriest CPRA Lawyer — Counseled The South Park BID To Thwart My CPRA Requests By Violating The Law — And It Is Against The Rules Of The California State Bar For An Attorney To Counsel A Client To Violate The Law — Which Is Why I Filed A Complaint Against Her Yesterday — And Maybe She’ll Get Disbarred — Which Would Be Pretty Appropriate In The Circumstances — Ironically I Only Have Evidence Of This Because The SPBID Was Honest Enough To Release It To Me In Response To A CPRA Request — But As Honest As That Might Be — Doesn’t Make Up For The Fact That SPBID Executive Directrix Ellen Riotto Enthusiastically Adopted Humiston’s Illegal Advice! →

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LAPD, Lawsuits, Public Records Act Pragmatics

LAPD Produces Three Records From The Regional Public Private Infrastructure Collaboration System In Response To My CPRA Suit!

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In February, my hand forced by the mindless obstructionism of the City of Los Angeles with respect to compliance with the California Public Records Act, I filed a petition asking a judge to compel them to hand over two classes of records. First were private person’s arrest forms generated in Hollywood in 2018. The point here is to be able once again to track arrests by the BID patrol after their appalling 2016 contract amendment took these records, at least for now, out of the reach of the CPRA.

The second kind of records I’m seeking in the suit are postings to the Regional Public Private Infrastructure Collaboration System, familiarly known as RPPICS. This is some kind of cop bulletin board that a lot of BIDs have access to, and the LAPD claimed that everything on the system could be withheld from me under the so-called investigative materials exemption to the CPRA, found at §6254(f).

And it’s these last ones that seem to have cracked the case. Last Thursday the City of Los Angeles, in the person of Deputy City Attorney Jonathan Bislig, sent over this letter admitting that the City possessed responsive RPPICS material that was not exempt and yet had not been produced. And they attached four pages of material, constituting three responsive records. There’s a transcription of the letter and of one of the RPPICS items after the break, and here are links to all three:

This is not only hugely important because we finally get to see some material from the hitherto top secret RPPICS, but also because the fact that the City released previously withheld material as a result of a suit means that I’m the “prevailing party” and therefore that the City has to pay my lawyer. This was held in the monumental 1991 case Belth v. Garamendi, which interpreted §6259(d) of the CPRA thus:

In this case we hold that Government Code section 6259, subdivision (d), mandates an award of court costs and reasonable attorney fees to a plaintiff who prevails in litigation filed under the California’s Public Records Act. We further hold that the plaintiff has prevailed within the meaning of the statute when he or she files an action which results in defendant releasing a copy of a previously withheld document.

This release is also hugely important because it shows really clearly that LAPD’s original denial was completely bogus. There’s nothing investigative at all about these three records. They falsely characterized them that way purely so they didn’t have to produce them, or even search for them, for that matter. It’s shameful that LAPD, and the City of Los Angeles as a whole, treats its mandated duties under the CPRA so lightly. It’s also shameful that the only means to enforce compliance is a lawsuit.

Together, these shameful facts mean that the only possible strategy is to keep suing them until they get their act together. It’s going to be expensive for taxpayers, who have to foot the City’s legal bill and also the requester’s in successful cases, but as Sigmund Freud famously said, if you don’t pay you don’t get better. More news as I have it, and turn the page for some transcriptions.
Continue reading LAPD Produces Three Records From The Regional Public Private Infrastructure Collaboration System In Response To My CPRA Suit! →

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California State Government, Public Records Act Pragmatics

Yesterday — March 6, 2019 — The Assembly Committee On The Judiciary Introduced AB-1819 — Would Require Agencies Subject To The California Public Records Act To Allow Requesters To Copy Records With Their Own Equipment At No Charge — Mostly Agencies Already Allow This But Some Incredibly Obstinate Obstructionists Do Not — Looking At You, Alcoholic Beverage Control — Hence This Law Is — Sadly — Incredibly Necessary

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The California Public Records Act presently requires agencies to allow anyone to “inspect” records at no charge.13 This is an incredibly important right, tempered only slightly by the fact that the law also allows agencies to charge people for copies of the records.14 The ability to charge is used by too many agencies as a way to discourage free inspection, and one way that they do this is to forbid people from making their own copies with their own equipment.

This has been an issue in California for decades,15 but it’s become much more prominent with the widespread use of phones and extremely portable document scanners. These days pretty much every member of the public already owns photographic equipment capable of making sufficiently high quality reproductions of paper records. So not only is it extremely disconcerting when an agency forbids photography of records, but the refusal affects many more people than it might have in the past.

Just for instance, probably in response to the paranoid psychosis of Special Agent in Charge Gerry Sanchez, the California Department of Alcoholic Beverage Control has recently begun to forbid me from photographing records, justifying their obvious obstruction with various nonsensically unsupportable claims about security and cell phones. So what a pleasant surprise to learn yesterday of the introduction in the Assembly of AB-1819, which would amend the CPRA to state explicitly that agencies must allow people to make their own copies at no charge.

The bill was introduced by the entire Assembly Committee on the Judiciary, so I imagine that that means it has pretty widespread support. Even the three Republican members of the Committee are listed among the sponsors. And it’s hard to imagine what legitimate reasons there might be for opposing this. But it never hurts to speak up, so consider getting in touch with your representatives and supporting this essential bill. And turn the page for a red-line version showing the proposed changes.
Continue reading Yesterday — March 6, 2019 — The Assembly Committee On The Judiciary Introduced AB-1819 — Would Require Agencies Subject To The California Public Records Act To Allow Requesters To Copy Records With Their Own Equipment At No Charge — Mostly Agencies Already Allow This But Some Incredibly Obstinate Obstructionists Do Not — Looking At You, Alcoholic Beverage Control — Hence This Law Is — Sadly — Incredibly Necessary →

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California State Government, Public Records Act Pragmatics

Senator Bob Wieckowski Introduces SB518, Which Would Exempt CPRA Petitions From CCP §998 — A Hardball Negotiating Tactic Which Might Induce Petitioners’ Lawyers To Settle For Far Less In Fees Than They Deserve — Thus Undermining The Only CPRA Enforcement Mechanism Created By The Legislature — This Is An Obscure And Technical Improvement To The CPRA — But An Extremely Important One — Thank You, Senator Bob!

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California Code of Civil Procedure §998 authorizes a particularly hardball negotiating tactic in lawsuits in California. One party can make what’s called a 998 settlement offer to the other. If the other party wins but doesn’t get awarded more money than in the 998 offer, the losing party doesn’t have to pay more than the offer. The idea is to encourage parties to seriously consider reasonable settlement offers rather than litigating for the sake of litigation.

And don’t forget that the only mechanism for enforcing the California Public Records Act is by filing a petition. The legislature has made this financially possible by including a mandatory award of attorney’s fees to the requester if they win.16 This is at §6259(d).17 There are built-in protections for requesters as well. Most notably that public agencies can’t recover their own costs from requesters even if they win, except under very rare circumstances.18 This is also found at §6259(d).

Without this potential award of attorney’s fees having court cases be the only mechanism for enforcement would be really unfair. Requesters would have to pay lawyers up front and public agencies would end up ignoring the CPRA altogether except if they thought requesters could afford expensive lawyers. And that would be a really bad outcome. As the CPRA itself says, right up at the top in §6250, “In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, 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.”

Finally, it is not unheard of for lawyers representing public agencies to make 998 offers.19 When such an offer is received it’s necessary to put some careful thought into rejecting it, because it could end up costing the attorney a lot of money if the fee award ends up being less than the offer. And the serious problem with this is that it could well induce plaintiffs’ attorneys to settle for less money than the case is worth.

In turn, this makes it more difficult for lawyers to be able to afford to take these cases, and this ends up eroding the financial viability of the only CPRA enforcement mechanism available. But judicial enforcement of the CPRA protects a “fundamental and necessary right of every person in this state.” So it’s bad public policy to allow 998 offers in CPRA cases.

Enter state senator Bob Wieckowski. He’s well-known for his attention to essential yet technical flaws in the CPRA. Just for instance, last year he introduced a bill to widen access to records and protect requesters from financial retaliation by public agencies who inadvertently released privileged records. Some aspects of it didn’t survive the legislative process, but it did accomplish its main goal.

And in keeping with this tradition, yesterday, February 21, he introduced SB 518, whose purpose is to outlaw 998 offers in CPRA cases.20 This is really important for all the reasons given above and probably some others that didn’t occur to me. Turn the page for a transcription of the legislative counsel’s digest and of the changes to the statute being proposed.
Continue reading Senator Bob Wieckowski Introduces SB518, Which Would Exempt CPRA Petitions From CCP §998 — A Hardball Negotiating Tactic Which Might Induce Petitioners’ Lawyers To Settle For Far Less In Fees Than They Deserve — Thus Undermining The Only CPRA Enforcement Mechanism Created By The Legislature — This Is An Obscure And Technical Improvement To The CPRA — But An Extremely Important One — Thank You, Senator Bob! →

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