Tag Archives: California Public Records Act

California State Government, Downtown Center BID

Business Improvement Districts And A Bunch Of Backwater Small Towns Oppose Assemblymember Todd Gloria’s AB1184 — Which Will Require Local Agencies To Retain Emails For Two Years — Read Their Letters Of Opposition And See What Shameless Liars They Are — Especially Suzanne Holley Of The Downtown Center BID — Who Argues With A Straight Face That Allowing Them To Delete Emails Will Increase Public Access To Information Because They Will Only Save The Important Stuff — By The Way Though I Have Proof That Holley’s BID Has Intentionally Deleted Very Important Emails In The Past — Icky Sticky BIDdie Boy Andrew Thomas Of Westwood Village BID Also Opposes — And He’s Also An Email Deleting Liar

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Assemblymember Todd Gloria introduced AB 1184, which would clarify an ambiguity in state law by requiring public agencies to retain emails for a minimum of two years. You can read my earlier article on it here. Well, on Wednesday the bill was amended1 and passed out of the Senate Judiciary Committee with a 10 to 1 tally in favor.2 It’s really worth reading the Judiciary Committee Counsel’s analysis of the bill, by the way.

And I also have copies of support and opposition letters. Powerful support comes from the California News Publishers Association and the First Amendment Coalition. Here are their letters:

☆ California News Publishers Association support for AB1184
☆ First Amendment Coalition support for AB1184

The opposition letters are predictably stupid, self-serving, and dishonest. They mostly take the position that it will cost too damn much to store two years worth of emails. Obviously, though, none of them provide any evidence because it’s just not true.3 Here are the links:

☆ City of San Carlos opposition to AB1184
☆ City of West Hollywood opposition to AB1184
☆ Various BIDdie Associations opposition to AB1184
☆ Downtown Center BID opposition to AB1184

And, probably unsurprisingly, this last one, penned by Downtown Center BID executive director Suzanne Holley, already known to be one of the most mendacious of an exceedingly mendacious crew of Los Angeles BIDdies, is perhaps the most twisted, the most dishonest, and the most ineffective, it turns out, out of all of them. There is a transcription after the break, but behold a few highlights with commentary and counterpoint.

Suzanne, why is your BID opposed to this? “Agencies would be forced to maintain an onerous amount of data.” And why is this not in the public interest, Suzanne? “the public would need to sort through thousands of emails to find the relevant needle in the haystack.” Suzanne! See that little box in your email client with a magnifying glass in it? If you put words in there and click on something the computer will sort through the emails for you! I use mine all the time!

Explain again, Suzanne! “Requiring the retention of tens of thousands of emails will bury relevant information…” And what is your answer to this imaginary problem, Suzanne? ” we believe the bill can be amended to ensure that the retention only apply to information relevant to the public business.” Of course, Suzanne, the problem is that on your scheme, YOU would be the one who decides what the public business is when obviously it’s the public that needs to decide.

And what kind of stuff would Suzanne delete if allowed? Here’s what she says doesn’t need to be retained: “Every email, regardless of how irrelevant would need to be retained. … Even an email asking a colleague out to lunch would fall under the purview of this bill.” See? Suzanne is asking the public to trust her to determine which emails it’s in the public interest to retain. She seems to be saying she’s just going to delete a lot of emails about lunch dates.

Leaving aside serious arguments that such emails may be very important indeed, let me tell you a little story about what kinds of emails Suzanne Holley actually does in fact delete. Remember all those emails I got in 2017 about BID involvement in the destruction of the Skid Row Neighborhood Council? That Jason McGahan, then of the LA Weekly, used in his blockbuster article? That are now evidence in the lawsuit against the City for illegally tampering with the subdivision election? Well, I got the first batch of those emails from Suzanne Holley at the Downtown Center BID.
Continue reading Business Improvement Districts And A Bunch Of Backwater Small Towns Oppose Assemblymember Todd Gloria’s AB1184 — Which Will Require Local Agencies To Retain Emails For Two Years — Read Their Letters Of Opposition And See What Shameless Liars They Are — Especially Suzanne Holley Of The Downtown Center BID — Who Argues With A Straight Face That Allowing Them To Delete Emails Will Increase Public Access To Information Because They Will Only Save The Important Stuff — By The Way Though I Have Proof That Holley’s BID Has Intentionally Deleted Very Important Emails In The Past — Icky Sticky BIDdie Boy Andrew Thomas Of Westwood Village BID Also Opposes — And He’s Also An Email Deleting Liar →

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Los Angeles City Government

Ever Wonder If You Are Blocked By Your Councilmember On The Twitter?! — We Have The Answer! — Also City Attorney! — Also The Mayor! — But Nury Martinez — And Herb Wesson — And Mike Bonin — And Mitch O’Farrell — They Won’t Even Answer The Damn Requests — Oh, Almost Forgot To Say! — Deputy City Attorney And Insufferable Rich Boy Strefan Fauble Wants To Be Sure You Know — Mike Feuer Isn’t Muting Any Twitter Users But If He Were — The List Would Be Exempt From Release Under The CPRA! — Yeah Right, Strefan Fauble! — Stick To Art Collecting And Leave The CPRA Lawyering To Others!

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For about two months now I’ve been looking into the practice of Twitter users being blocked or muted by official City of Los Angeles accounts. I’m still gathering evidence, but yesterday it came out that Police Commission president Steve Soboroff blocks a bunch of users who’ve never even interacted with him, so I thought it’d be timely to write up the information I have so far. This issue is of special interest in these latter days given that in 2018 a federal judge ruled that it is unconstitutional for Donald Trump to block users on Twitter.

What I can offer you today, friends, is Twitter block/mute information for eleven of the fifteen council districts, the City Attorney, the Mayor, and a small selection of official LAPD accounts.4 There’s also an interesting line of hypothetical bullshit from deputy city attorney Strefan Fauble5 about some pretty technical claims about CPRA exemptionism,6 but that, being übernerdlich, is way at the end of the post.

Most of the accounts blocked are porn or spam, but Jose Huizar and David Ryu are notable exceptions. Both reps block accounts that are obviously controlled by actual individual people. Huizar’s list is by far the most extensive, and includes wildly inappropriate blocks like @oscartaracena and @BHJesse.

My research on this question is ongoing, mostly hindered by the City of LA’s familiar foot-dragging CPRA methodology. Turn the page for a tabular summary of the results I have so far along with a brief discussion of how Strefan Fauble is still on his CPRA bullshit.
Continue reading Ever Wonder If You Are Blocked By Your Councilmember On The Twitter?! — We Have The Answer! — Also City Attorney! — Also The Mayor! — But Nury Martinez — And Herb Wesson — And Mike Bonin — And Mitch O’Farrell — They Won’t Even Answer The Damn Requests — Oh, Almost Forgot To Say! — Deputy City Attorney And Insufferable Rich Boy Strefan Fauble Wants To Be Sure You Know — Mike Feuer Isn’t Muting Any Twitter Users But If He Were — The List Would Be Exempt From Release Under The CPRA! — Yeah Right, Strefan Fauble! — Stick To Art Collecting And Leave The CPRA Lawyering To Others! →

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Business Improvement Districts, Los Angeles City Council

The FBI Searched José Huizar’s Personal Email Account — And I Asked The South Park BID Board Of Directors For Their Emails To/From That Very Account — And BID Directrix Ellen Salome Riotto Told The Board Members To Talk To Their Lawyers Before Handing Over Responsive Records — Because That’s Exactly How Innocent People Behave

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Back in January of this year PACER wizard Seamus Hughes, in a stunning application of the inscrutable sorcery which he alone has mastered, discovered that in February 2017 the FBI had searched one of José Huizar’s personal email accounts, josehuizar@sbcglobal.net, and seized more than 1,400 records. And I immediately thought of my dear friends at the South Park BID, where they’re building all those really really really tall buildings of the very sort that basically require a criminal conspiracy to get built at all.

And so I fired off a little CPRA request to the BIDdies asking them for, amongst other things, their communications with that email account of Huizar’s. And it turned out that none of them would admit to having any, which, of course, is not surprising given the fact that the BID’s lawyer, Carol Ann Humiston, basically advised the Boardies that there would be no consequence to them for lying. But nevertheless the request was not without results, just not direct results.

For, you see, in response to a whole different request, the BID sent over a little slap in the face, which is to say this email from BID Executive Director Ellen Salome Riotto advising the BID Boardies on responding to the earlier request. Basically she told them that because the FBI is investigating their buddy Huizar they should talk to their damn lawyers before sending over any records, which to this legal amateur looks a whole freaking heck of a damn lot like consciousness of guilt. But she can speak for herself better than I could speak for her:
Continue reading The FBI Searched José Huizar’s Personal Email Account — And I Asked The South Park BID Board Of Directors For Their Emails To/From That Very Account — And BID Directrix Ellen Salome Riotto Told The Board Members To Talk To Their Lawyers Before Handing Over Responsive Records — Because That’s Exactly How Innocent People Behave →

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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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California State Government

SB749 — Maria Elena Durazo’s Proposed Changes To The California Public Records Act Would Fix Two Problems — First — Local Agencies Often Claim That Records Generated By Their Private Contractors Are Exempt As Trade Secrets — This Bill Would State That Such Information Relating To Employment Conditions Is Not In Fact A Trade Secret — Second — This Bill Would Require That Requesters Are Named As Parties In All So-Called Reverse CPRA Actions — In Which A Third Party Sues To Prevent Record Release — And Would Require Parties Who Initiate Unsuccessful Reverse CPRA Actions To Pay Requester’s Fees

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Senator Maria Elena Durazo filed SB-749, amending the California Public Records Act, last month, but it was only on Wednesday that it was amended away from a placeholder. The fleshed-out bill addresses two problems with the California Public Records Act.

First, it would state that “records relating to wages, benefits, working hours, and other employment terms and conditions of employees working for a private industry employer pursuant to a contract with a state or local agency shall not be deemed to be trade secrets under the act.” In my experience it’s fairly common for local agencies to claim that records like this are exempt. Sometimes they claim that they’re trade secrets7 and sometimes that they’re material found in personnel files.8

That last claim is pretty clearly bogus, so probably the more serious obstructionists rely more on claims of trade secrets. For instance I had this happen to me with the Fashion District BID in the person of Rena Leddy, who refused to tell me the hourly rates of the BID’s renewal consultant, Urban Place Consulting. That is, until a kindly lawyer sent them a not-so-kindly demand letter on my behalf. Then they coughed the goods right up.9 So if the bill passes with this bit intact they won’t be able to do that any more, and the personnel file claim is functionally a non-starter, so that’ll be good.

Incidentally, while I understand the danger of letting the perfect be an enemy to the good, I would still just like to say that the problem being solved here is at best a minor particular instance of a much larger family of problems involving records owned by private contractors who are working for public agencies. That is, that the agencies can write the contracts so that the contractor owns the records and the agency explicitly does not have access to them.

The Hollywood Property Owners’ Alliance famously did exactly this in 2016 with the Andrews International BID Patrol. Kerry Morrison even admitted under oath that the purpose of the change was to thwart my CPRA requests. And the judge ruled that it was allowable under California law for them to do this, and even to make the change retroactive.

But such is not the law in every state. For instance, Florida Statutes section 119.0701 makes pretty much all records generated by private contractors subject to the CPRA if they relate to work done for a public agency. It’s a really powerful, really beautiful statute. We need a version here, and this bill is not it. But it’s not bad.

The second issue addressed by Durazo’s bill has to do with reverse CPRA actions. In these suits a third party, e.g. a police union, sues to prevent a public agency from releasing records to a requester. The Court of Appeal held last year that the third party is liable for the requester’s fees if they lose, and this bill would formalize that finding by putting it into the statute. The bill also requires that the requester be brought into a reverse CPRA action as a party, I assume so that the case can’t be heard without the requester’s input.

And finally, and this may be the most powerful part, the law would forbid a court from ordering that a record be withheld if the order is based on a discretionary exemption. But most of the exemptions are discretionary. In fact I kind of think that all of them are, but maybe there’s something I don’t understand. This clause alone will make it harder to win reverse CPRA actions, as it should be. Turn the page for a transcription of the legislative counsel’s digest and the proposed new statutory language.
Continue reading SB749 — Maria Elena Durazo’s Proposed Changes To The California Public Records Act Would Fix Two Problems — First — Local Agencies Often Claim That Records Generated By Their Private Contractors Are Exempt As Trade Secrets — This Bill Would State That Such Information Relating To Employment Conditions Is Not In Fact A Trade Secret — Second — This Bill Would Require That Requesters Are Named As Parties In All So-Called Reverse CPRA Actions — In Which A Third Party Sues To Prevent Record Release — And Would Require Parties Who Initiate Unsuccessful Reverse CPRA Actions To Pay Requester’s Fees →

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California State Government

San Diego Assemblymember Todd Gloria’s Bill AB-1184 Would Require Public Agencies To Retain Email For No Less Than Two Years — Which Is Exceedingly Important — Many Of Them Use Absurdly Short Retention Periods Intentionally To Evade CPRA Obligations

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The California Public Records Act explicitly includes emails in the class of records which are open to public inspection. For some reason, though, many agencies are resistant to this idea and think that somehow emails are less recordy than more old fashioned kinds of records. This weird theory, along with the fact that the CPRA doesn’t impose any kind of obligation to retain records on agencies, has inspired bunches of agencies to establish absurdly short retention schedules for emails.

There are plenty of BIDs in the City of Los Angeles, for instance, which claim that they delete emails after 30 days. They’re lying, of course, but the fact that they say this makes it harder to prove that they’re illegally withholding records. And they are consciously adopting these policies to avoid having to comply with the CPRA. For instance, at the famous BID anti-CPRA seminar held by Carol Humiston last summer, she told attendees that:

You do not need to save most emails. If you want to preserve important information that was sent by email, print it out, make a copy, and delete it from your computer.

And evidently this is a problem all over California, although I’m guessing that it doesn’t take such a consistently extreme form outside of Los Angeles. Which is I guess the inspiration for the timely and most excellent AB 1184. Written by San Diego Assemblymember Todd Gloria, this bill would require that agencies retain emails for a minimum of two years.

If you support government transparency, and why would you be visiting here if you did not,10 well, I hope you’ll write or call your legislators and tell them to pass this damn bill. If you don’t know who they are you can find them here. And turn the page for some text!
Continue reading San Diego Assemblymember Todd Gloria’s Bill AB-1184 Would Require Public Agencies To Retain Email For No Less Than Two Years — Which Is Exceedingly Important — Many Of Them Use Absurdly Short Retention Periods Intentionally To Evade CPRA Obligations →

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California State Government

Bakersfield Republican Assemblymember Vince Fong Introduced AB 289 — Seeking To Establish State Level CPRA Ombudsman — Who Would Receive Denied Requests From Members Of The Public For Review — And Would Be Empowered To Disclose Requested Records If Withholding Is Unjustified — This Would Only Apply To State Agencies — Not Local Ones Like The City Of LA And The Damn BIDs — Nevertheless It’s A Step In The Right Direction — Of Making Lawsuits Less Necessary — So That More People Will Be Able To Afford To Dispute Denials

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Assemblymember Vince Fong‘s AB-289 would establish the office of CPRA ombudsman under the State Auditor. The ombudsman would review requests made of state-level offices and would be empowered to actually turn the disputed records over to the requester if it were determined that they’d been improperly withheld. This would be a really important development in CPRA-world given that presently the only recourse available to a member of the public whose requests are denied improperly is to file a lawsuit, which is expensive, anxiogenic, and slow as hell. The ombudsman would be required to respond to requests for review within 30 days.

As I said, sadly this would only apply to state-level agencies and not at all to local agencies like the City of Los Angeles and its panoply of damnable business improvement districts, all of whom deny requests improperly all the damn time. I sue a lot of them but I can’t sue all of them, at least not all at once. And a CPRA petition can take close to two years to get a BID to cough up records, so it’s not an ideal solution in any way. An intermediate level of review like this would be really useful on the local level too.

But that’s not to say that it won’t be very useful on the state level. In my experience the state is much better about CPRA compliance than the various local agencies I work with, but state agencies can nevertheless deny access to records improperly, and if this bill passes into law I expect to make fairly regular use of it. Looking at you, Alcoholic Beverage Control, you and your unhinged gun-brandishing special agent in charge Gerry Freaking Sanchez. I’ll be tracking this as it makes its way through the legislative process, and turn the page for a transcription of the Legislative Counsel’s digest and the text of the bill.
Continue reading Bakersfield Republican Assemblymember Vince Fong Introduced AB 289 — Seeking To Establish State Level CPRA Ombudsman — Who Would Receive Denied Requests From Members Of The Public For Review — And Would Be Empowered To Disclose Requested Records If Withholding Is Unjustified — This Would Only Apply To State Agencies — Not Local Ones Like The City Of LA And The Damn BIDs — Nevertheless It’s A Step In The Right Direction — Of Making Lawsuits Less Necessary — So That More People Will Be Able To Afford To Dispute Denials →

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LAPD

It Appears That The University Of Southern California Is In Violation Of Its Memorandum Of Understanding With LAPD — USC Police Are Required To Submit Regular Reports Describing Their Activities And Giving Various Statistics — According To LAPD Discovery In Response To A CPRA Request There Are No Reports — Given The Vast Off-Campus Area That USC Cops Cover It Is Disconcerting That There Is No Way To Know What They’re Doing — And It Is A Massive Dereliction Of LAPD’s Duty To The People Of Los Angeles That They Evidently Are Allowing USC To Shirk Its Legal Reporting Duties

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So it turns out that security guards at private universities can actually be peace officers under California law if certain conditions are satisfied. This is authorized by the Penal Code at §830.75, which lists the fairly minimal conditions. They include a requirement that “[t]he institution of higher education and the appropriate local law enforcement agency have entered into a memorandum of understanding.” Once the conditions are met, the law allows the security guards to act as police officers on public property within a mile of their campus.

And the University of Southern California has taken full advantage of this opportunity, entering into the appropriate MOU with the Los Angeles Police Department so that its security guards, collectively known as the Department of Public Safety, have the arrest power and are allowed to exercise it within the boundaries of the map shown above. I obtained a copy of this MOU from LAPD under the CPRA, and it’s well worth reading.

If you’re paying attention at all you’ll have heard that this situation, with USC policing a vast off-campus area in neighborhoods whose residents are mostly poor, mostly black or brown, is intolerably abusive. Sahra Sulaiman, for one, has been writing about it for years on Streetsblog. See e.g. this 2013 overview and this more recent description of yet another appalling incident.

When the LAPD is involved in activities like this, well, it’s not so easy to stop them, but it is at least possible to use the Public Records Act to try understand what they’re up to. This is not so clearly possible with USC, since they’re a private school and not prima facie subject to the CPRA.11 But the MOU does provide for some transparency about USC operations.

In particular take a look at Article 5, which requires all kinds of reporting about police activities by USC, all of it to be submitted to LAPD.12 USC DPS is required to submit reports of significant incidents, daily reports of calls, weekly crime statistics, monthly reports of all activities pertaining to the exercise of the powers granted by the MOU, and other stuff besides.

So naturally I asked LAPD for copies of all of these reports from 2018 and 2019 under the CPRA.13 And imagine my surprise when the LAPD told me this afternoon that they didn’t have any records. They even said that they asked Southwest Division to look for them, which was the right thing to do as they’re the designated recipients under the MOU.

So if LAPD Discovery is telling the truth and no one actually has copies of all these reports that USC is supposed to submit, then USC is in violation of the MOU and they certainly ought to stop patrolling off-campus immediately and have all the powers granted to them under its terms suspended until they come back into compliance.

This isn’t just some kind of technicality, either. If USC DPS is going to operate on public property, detain and arrest citizens of Los Angeles who aren’t remotely interacting with USC property or employees, and so on, then we have a right to keep track of what exactly they’re up to. If they actually haven’t been submitting these reports, or if LAPD isn’t retaining them or is hiding them, then it’s impossible for us to understand USC’s operations on our streets, which is unacceptable.

On the other hand, obviously, it’s possible that LAPD is either lying or mistaken, either of which would be completely not at all surprising to anyone who’s dealt with them before. So I asked Southwest Division to put me in touch with whoever is their USC liason, and I asked USC senior vice something or other Todd Dickey, who signed the most recent amendment to the MOU, to please let me know what’s going on. If and when I hear back from them well, you’ll read about it here. Meanwhile, turn the page for all the transcriptions.
Continue reading It Appears That The University Of Southern California Is In Violation Of Its Memorandum Of Understanding With LAPD — USC Police Are Required To Submit Regular Reports Describing Their Activities And Giving Various Statistics — According To LAPD Discovery In Response To A CPRA Request There Are No Reports — Given The Vast Off-Campus Area That USC Cops Cover It Is Disconcerting That There Is No Way To Know What They’re Doing — And It Is A Massive Dereliction Of LAPD’s Duty To The People Of Los Angeles That They Evidently Are Allowing USC To Shirk Its Legal Reporting Duties →

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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.14 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.15 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,16 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

Senator Ben Hueso Introduced SB615 Yesterday — Would Gut California Public Records Act By Requiring Proof That Noncompliant Agencies Knowingly And Willfully Withheld Records — This Would Make It Extremely Difficult For Requesters To Recover Fees — Which Would Make It Extremely Difficult For Requesters To Hire A Lawyer — Which Would Decimate The Already Lousy Compliance Level

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Yesterday, February 22, 2019, Senator Ben Hueso introduced SB 615, a bill which would rewrite the California Public Records Act to make it radically more difficult for requesters to file and win petitions against noncompliant public agencies. As it stands, a petition filed in Superior Court is the only mechanism for enforcement of this essential law. Most people can’t afford lawyers, of course, but the CPRA at least tries to ameliorate this flaw by making it relatively easy for requesters to recover attorney’s fees from noncompliant agencies.

The law presently says that a requester wins a CPRA suit if the suit induces the agency to produce a record that was previously withheld. It’s not necessary to prove that the agency withheld the record on purpose. In fact, in Community Youth Athletic Center v. National City the California Court of Appeals specifically held that even incompetence or neglect were not valid excuses for not producing. Hueso’s bill would nullify this opinion and many others like it and require requesters to show that agencies “knowingly, willfully, and without substantial justification failed to respond to a request for records.”

In my extensive experience, agencies are already expert at denying access to records without ever saying that that’s what they’re doing. Instead they create an endless series of delays, errors, failures to respond quickly, and so on, which add up to a denial. I have had public agencies shine me on for years this way. And sadly judges are generally so deferential to public agencies that it’s already nearly impossible to prove that an agency involved in this kind of disingenuous delay is in violation. If it becomes necessary to prove that they’re doing it on purpose in order to recover fees there will be even fewer lawyers than there already are willing to take on these cases.

The bill would add a few other ways for a requester to prevail. Most of these are bad or neutral, but one is somewhat positive. That is the statement that petitioner wins by showing that “[t]he agency unreasonably delayed providing the contents of a record subject to disclosure in part or in whole.” Currently the CPRA says that agencies can’t delay access but it doesn’t explicitly create a cause of action for delay. Again, in my experience, judges’ deference makes attorneys reluctant to file such petitions. Maybe this would improve that situation.

That one potential improvement is not worth the destruction, though. If this bill passes into law look for already obstructionist agencies to ramp up their obstruction. Look for the already small number of lawyers willing to take CPRA cases on an affordable basis to decline sharply. Look for the already slow flow of records to decrease drastically.

Interestingly, the right of access to public records is written into the California Constitution at Article I Section 3, and in subpart (b)(2) it requires that “A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.” Hueso’s bill contains some boilerplate language about this, but it doesn’t demonstrate anything, it just states it. The bill would clearly limit access, though, so maybe it would end up being unconstitutional.

And turn the page for a transcription of the legislative counsel’s summary and of the actual proposed changes. And then find your legislator and write in opposition to this crappy and dangerous bill.
Continue reading Senator Ben Hueso Introduced SB615 Yesterday — Would Gut California Public Records Act By Requiring Proof That Noncompliant Agencies Knowingly And Willfully Withheld Records — This Would Make It Extremely Difficult For Requesters To Recover Fees — Which Would Make It Extremely Difficult For Requesters To Hire A Lawyer — Which Would Decimate The Already Lousy Compliance Level →

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