Tag Archives: Bob Wieckowski

California State Government

Oakland Privacy Wrote A Really Nice — And Really Powerful — Letter Of Support For Bob Wieckowski’s Minor But Essential SB931 — Which Would Require Local Agencies To Email Copies Of Their Agendas To Members Of The Public On Request — Read It Right Here! — And Think About Writing Your Own!

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As you may well remember, earlier this year Senator Bob Wieckowski introduced the small but essential SB931. The Brown Act already requires public agencies to mail copies of agendas to members of the public on request.1At §54954.1 This bill would require them to email them if asked to.

It’s very strange but sadly true that there are plenty of little backwater agencies, mostly business improvement districts and charter schools, who are so intent on obstruction that they will refuse to email agendas even though it’s free, even though they already email agendas to people they approve of. They will insist that the law only requires them to mail agendas.

And don’t get me started on how they send them via certified mail so that if people miss the first delivery it’s essentially too late to find out what the meeting is about. And if it’s a special meeting? Or if someone’s unhoused and doesn’t have reliable mail service? Forget it. So like I said, this is a minor problem, something these agencies ought to be doing anyway but some of them just won’t and Wieckowski’s bill will fix it.

As far as I know there’s no organized opposition. I mean, what are they going to say? That they enjoy exploiting this unfortunate loophole to mess with people? But there’s a lot of support! I already wrote about the letter sent by our friends at the Los Angeles Sunshine Coalition. The California News Publishers Association sent a nice little letter. And just the other day I learned that Oakland Privacy, a group I hadn’t heard of before this, wrote a really extraordinary, really dynamic letter in support.

You can read the entire thing below, but they raise a really important point that no other support letter has brought out in such detail. That’s the fact that if members of the public want to monitor the agendas of many local agencies to see if they want to comment on specific items, essentially their only practical choice right now is to check the agencies’ websites regularly.

For people or groups that monitor tens or hundreds of agencies this is not only time-consuming but also unreliable. Requiring notifications by email would solve this problem. Anyway, as I said, read on for the full letter, and if you have a moment, why not drop Wieckowski a line or call him in support yourself?
Continue reading Oakland Privacy Wrote A Really Nice — And Really Powerful — Letter Of Support For Bob Wieckowski’s Minor But Essential SB931 — Which Would Require Local Agencies To Email Copies Of Their Agendas To Members Of The Public On Request — Read It Right Here! — And Think About Writing Your Own! →

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Brown Act Pragmatics, California State Government

The Brown Act Already Requires Local Agencies To Mail Agendas To Members Of The Public On Request — Senator Bob Wieckowski’s SB931 Would Amend The Law To Require Them To Send Via Email If Asked — Which You’d Think They Would Want To Do Anyway Because It’s Cheaper — And Easier — And More Efficient — But They’d Rather Obstruct — And Delay — And Create Friction — So This Law Is — Sadly — Necessary — And The Los Angeles Sunshine Coalition Is Supporting It!

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It’s so darn bandied-about that it’s become easy to forget that Abraham Lincoln’s perfect description of the American form of government,2 or at least its to-be-constantly-striven-for ideal form, as “of the people, by the people, for the people” has a great deal of meaning packed into it. In particular, if government is to be of and for the people then the people have to have access to the spaces in which its work is done and advance notice of when it’s happening.

And governments being what they are3 they would often prefer to keep people out of the process entirely by making their decisions and doing their work in secret. To prevent this, to preserve Lincoln’s ideal, we need laws to protect our access. In California such access is protected by the Brown Act.

One of the rights protected by the Brown Act is the right to have notice of the time, place, and subject matter of upcoming meetings. This protection comes in two forms. First, §54594.2 requires agendas to be posted in public and on the web 72 hours before a meeting.4 But of course, this is only sufficient if you remember to check the posting location or the website. If you don’t or can’t do that you’re out of luck.
Continue reading The Brown Act Already Requires Local Agencies To Mail Agendas To Members Of The Public On Request — Senator Bob Wieckowski’s SB931 Would Amend The Law To Require Them To Send Via Email If Asked — Which You’d Think They Would Want To Do Anyway Because It’s Cheaper — And Easier — And More Efficient — But They’d Rather Obstruct — And Delay — And Create Friction — So This Law Is — Sadly — Necessary — And The Los Angeles Sunshine Coalition Is Supporting It! →

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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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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.5 This is at §6259(d).6 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.7 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.8 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.9 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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Public Records Act Pragmatics

State Senator Bob Wieckowski Introduces SB-1244, Which Would Undo The Easily Abused California Supreme Court Decision In Ardon v. City of Los Angeles Holding That Inadvertent Disclosures Of Exempt Records By A Public Agency Did Not Waive The Exemption

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As you may be aware, the California Public Records Act requires the release of all requested public records unless some specified exemption to disclosure applies.10 However, it turns out that, according to §6254.5, if an agency releases exempt material to anyone they’ve automatically waived their right to withhold it from anyone else:

Notwithstanding any other law, if a state or local agency discloses a public record that is otherwise exempt from this chapter, to a member of the public, this disclosure shall constitute a waiver of the exemptions specified in Section 6254 or 6254.7, or other similar provisions of law.

But what happens if an agency releases the material by accident and then other people want it? In 2016 the California Supreme Court decided the issue in Ardon v. City of Los Angeles, holding that inadvertent disclosure didn’t waive exemptions. At that time, the court recognized the potential for abuse11 and warned:

Our holding that the inadvertent release of exempt documents does not waive the exemption under the Public Records Act must not be construed as an invitation for agencies to recast, at their option, any past disclosures as inadvertent so that a privilege can be reasserted subsequently. This holding applies to truly inadvertent disclosures and must not be abused to permit the type of selective disclosure section 6254.5 prohibits. The agency’s own characterization of its intent is not dispositive, just as it is not dispositive under the law of privilege.

Continue reading State Senator Bob Wieckowski Introduces SB-1244, Which Would Undo The Easily Abused California Supreme Court Decision In Ardon v. City of Los Angeles Holding That Inadvertent Disclosures Of Exempt Records By A Public Agency Did Not Waive The Exemption →

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