Tag Archives: California Supreme Court

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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LAPD, Public Records Act Pragmatics

On December 31, 2018 The Los Angeles Police Protective League Asked For And Obtained A Court Order Preventing LAPD From Applying SB1421 Retroactively — Thus While The Rest Of The State Has Access To Records Of Police Misconduct Los Angeles Is Left In The Dark — At Least Until The Scheduled February 5, 2019 Hearing — City Of LA Opposition Is Due By January 22 — I Have Copies Of The LAPPL Petition — And Craig Freaking Lally’s Declaration In Support — And All Other Pleadings!

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If you’re reading this blog you’re very likely aware that on January 1, 2019 the monumental SB1421 took effect, basically ending exemptions which, until now, have prevented the release of records documenting even the most extreme cases of police misconduct. Police agencies all over the state are freaking out about this, and some even asked the California Supreme Court to declare that the law didn’t reply retroactively. The justices shot down that malarkey last week, and then upped the stakes by asking to be briefed on whether the new law required the release of even more material than had been anticipated.

And thus police departments are beginning to release these records. For instance, there’s this case of an officer in Burlingame who’d been fired for offering to help a drunk driver with her charge in exchange for sex. And this newly released information evidently has the San Mateo County D.A. reconsidering his earlier decision not to criminally charge the officer. Which is how this law is supposed to work. And it seems that that’s how it is working.

Except, it turns out, in the City of Los Angeles. It doesn’t seem to have been widely reported on,1 but it seems that here, the Los Angeles Police Protective League filed an emergency petition on December 31, 2018, asking the Superior Court to stop the LAPD from applying SB1421 retroactively. And shockingly, astoundingly, appallingly, the court agreed and issued an order to that very effect, which is in effect at least until the scheduled hearing on February 5, 2019.2

The LAPPL’s whole argument seems to be that officers have made crucial career decisions relying on the privacy of the records, and that therefore it would be manifestly unfair to publish them now. For instance, according to Craig Lally in a sworn declaration, police officers often agree not to appeal findings of misconduct even though they think they’re innocent just to get things settled quickly and not disrupt operations. But, says Lally, they would never have done this had they known that the records would be published at some point.3

And apparently there’s really nothing to be done about this until the hearing. We are just not going to get these records right away. Oh, except it’s possible to read all the pleadings filed in the case. The City of Los Angeles hasn’t yet responded, but I obtained copies of everything that there is so far and published it here on Archive.Org. It’s upsetting, but it’s better to know. Turn the page for a linked list of everything and a transcription of selections from Lally’s declaration.
Continue reading On December 31, 2018 The Los Angeles Police Protective League Asked For And Obtained A Court Order Preventing LAPD From Applying SB1421 Retroactively — Thus While The Rest Of The State Has Access To Records Of Police Misconduct Los Angeles Is Left In The Dark — At Least Until The Scheduled February 5, 2019 Hearing — City Of LA Opposition Is Due By January 22 — I Have Copies Of The LAPPL Petition — And Craig Freaking Lally’s Declaration In Support — And All Other Pleadings! →

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CD13, Public Records Act Pragmatics

Mitch O’Farrell Has A Private Gmail Account Through Which He Conducts City Business — And His Chief Of Staff, Jeanne Min, Refuses To Release All Emails From This Account — Insists That There Is More Public Interest In Withholding Them — But No One Actually Believes That — Probably Not Even Her

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In the last few years a number of public officials have been criticized extensively1 for using privately controlled email accounts to conduct public business. Hillary Clinton was famously investigated by the FBI for this. And just yesterday it was revealed that Ivanka Trump has done the same thing. Thus we were fascinated to learn recently that CD13’s own Mitch O’Farrell also uses a privately owned Gmail account, mitchof13@gmail.com, to conduct City business and, doubtless, to evade scrutiny.

This was discovered recently by our friends at the Hollywood Sunshine Coalition, who passed us the material on which this post is based. And this revelation settles a big mystery. As you know, I personally have obtained many thousands of pages of emails from CD13 on any number of subjects, and there are never any at all from O’Farrell himself. Previously I had thought that either Dan Halden, who handled most of my requests, was purposely omitting emails from his boss or else that O’Farrell was communicating in ways that didn’t leave traces, like phone calls. Now it seems likely that he has been evading scrutiny by using this secret email address.

The HSC has been making public records act requests for emails from this account. There are two ways to approach this. The first, and so far the only successful, way is to find correspondents who are subject to the CPRA and ask them for emails involving O’Farrell’s secret email address. This led to request number 18-2976 on the City’s newish CPRA platform, which is called Nextrequest.2 For some reason the City has made the request page available for public view but not the records provided. They turned over 21 highly duplicative PDF pages of emails between O’Farrell and various officers and, interestingly, some members of the Hollywood Studio District Neighborhood Council. You can read these 21 pages here. Apparently the HSC has other such requests pending.

But the HSC’s other strategy has turned to be much more interesting, even though it hasn’t gotten them any actual records yet. It’s based on last year’s absolutely monumental California Supreme Court opinion in City of San Jose v. Superior Court, which found that the emails and text messages of public officials are subject to the CPRA even if they are held in private accounts.

Based on this principle, on November 7 the HSC sent this CPRA request to CD13, asking for all emails held in the account from July 1, 2013 through the present.3 And yesterday, probably unsurprisingly, O’Farrell’s chief of staff, Jeanne Min, replied with the usual mush-mouthed nonsense, the TL;DR of which is “fuck you no records.” The HSC responded pretty scathingly, and then responded again for good measure. They’ve promised to keep me in the loop with respect to further developments. After the break you can find transcriptions of most of these emails along with some technical discussion of the CPRA issues implicated.

Meanwhile I’m told by those who ought to know that the HSC will not drop this request and that they are prepared to litigate if necessary. We’ll see what happens, I guess. Whatever happens, it’s clear that the public interest is very much against allowing Mitch O’Farrell to get away with maintaining this secret side channel for communicating with his favored few and with secreting emails away from public scrutiny and the City’s record retention policies.
Continue reading Mitch O’Farrell Has A Private Gmail Account Through Which He Conducts City Business — And His Chief Of Staff, Jeanne Min, Refuses To Release All Emails From This Account — Insists That There Is More Public Interest In Withholding Them — But No One Actually Believes That — Probably Not Even Her →

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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.1 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 abuse2 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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Central City East Association, Lawsuits, Public Records Act Pragmatics

The LA CAN & Catholic Worker Lawsuit Has Cost The Central City East Association At Least $115,000 In Legal Fees And Costs (And How It Took Me Two Months Of Hardcore CPRAfaction To Discover This Fact)

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Around these parts we refer to the California Public Records Act as CPRA, pronounced SIP-rah. The methodologies and practicalities of using CPRA are known as CPRAfaction, pronounced SIP-rah-faction.

You may recall that in March, the Central City East Association settled the momentous lawsuit brought against it by the Los Angeles Community Action Network and LA Catholic Worker.1 This was mere months after beloved Los Angeles gadfly Eric Preven and the incomparable ACLU of Southern California won a momentous decision in the California Supreme Court, which ruled essentially that once a legal case was finished the legal privilege exemption to CPRA2 no longer applied. No coincidences around here! So I fired off an email to Estela Lopez as follows:

Good afternoon, Estela, and happy Palm Sunday.

And congratulations on settling that 2014 lawsuit, namely LACW et al. v. Downtown Industrial District BID et al. (2:14-cv-07344-PSG-AJW). I would like to look at copies of all bills from all lawyers who worked for the CCEA on this case.

For the sake of efficiency, and in case you’re not already aware aware of this, here’s a link to an LA Times story on the recent Supreme Court decision declaring that once a case is resolved the bills become public records:

http://www.latimes.com/local/lanow/la-me-ln-court-legal-bills-20161229-story.html

As you can imagine, there was a lot of back-and-forth, with her mostly refusing to hand over the legal bills, until this afternoon, when she did hand them over. The full story of that, with bunches of emails and also a reasonable amount of CPRA nerdview, can be found after the break if you’re interested.

But here are the actual bills to CCEA from their lawyers, Hill, Farrer, & Burrill. I spent a little time adding up the totals and their total legal bills, costs and fees, seem to have come to $89,782.54 over the last three years. Add this to the $25,000 they agreed to pay the plaintiffs in the settlement agreement and their whole bill comes to $114,782.54. This is over slightly less than three years, and the BID’s annual budget is roughly $2,000,000, so it’s relatively not that much.

According to Estela Lopez in 2015 there are more than 2000 homeless human beings living in the CCEA’s territory. Thus this lawsuit cost them a little more than $57 per potential harassment victim. I’m sure this seems cheap at the price. Anyway, that’s the substantive information. Turn the page for the story of how I got my hands on it!
Continue reading The LA CAN & Catholic Worker Lawsuit Has Cost The Central City East Association At Least $115,000 In Legal Fees And Costs (And How It Took Me Two Months Of Hardcore CPRAfaction To Discover This Fact) →

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Business Improvement Districts, Public Records Act Pragmatics

Unidentified Business Improvement District Seeks Free CPRA Advice From First Amendment Coalition, Does Not Get Answer They Are Looking For

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The First Amendment Coalition is, in their own words,

… an award-winning, nonprofit public interest organization dedicated to advancing free speech, more open and accountable government, and public participation in civic affairs.

and their mission includes the fairly forthright statement that

The Coalition is committed to the principle that government is accountable to the people, and strives through education, public advocacy, litigation, and other efforts to prevent unnecessary government secrecy and to resist censorship of all kinds.

For instance, in furtherance of this mission, the FAC is presently suing the City of Los Angeles over Tom LaBonge’s immoral and idiotic destruction of records from his time as Councilmember. They were also a friend of the court in the recent momentous California Supreme Court decision making the personal email accounts of public officials open to CPRA for material that relates to the public’s business. This is not an organization that anyone sane would expect to be sympathetic to the whiny, entitled, and clueless complaints of a business improvement district that has been asked to comply with its legal obligations under the California Public Records Act, amirite?

One of the most useful services that the FAC provides is called Asked & Answered. People can send in questions about CPRA and the Brown Act and the FAC’s attorneys from Bryan Cave will answer them publicly and for free if they might interest a wider audience. These questions are usually from people frustrated by inane, self-serving, and illegal government obstructionism in the face of CPRA requests. So imagine my surprise when, a few days ago, this little gem of a question appeared:

Q: As a Business Improvement District, we are an agency of our local gov’t and subject to PRAs. I have submitted countless reports, minutes/agendas, financials and even a record of one full year of emails. Now I have been asked to submit the email database I have developed for communicating with my business members.

I am not comfortable giving this database to the public. While I have no problem disclosing my email correspondence, I do not feel right giving my email database to someone who can then send mass emails to these businesses.

Do I have to submit the database if requested through the CPRA?

Well, given the FAC’s general orientation towards CPRA, you can probably imagine the answer, and you can also read it, with some commentary and the usual uninformed speculation, after the break.
Continue reading Unidentified Business Improvement District Seeks Free CPRA Advice From First Amendment Coalition, Does Not Get Answer They Are Looking For →

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Public Records Act Pragmatics

ACLU And Eric Preven Score Huge California Supreme Court CPRA Victory Against Los Angeles County Over Release Of Attorney Invoices

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Eric Preven is not only winning huge CPRA victories, he is also running for mayor of Los Angeles.
Last week local hero and candidate for mayor Eric Preven along with the ACLU of Southern California won a major victory for CPRA rights in the California Supreme Court. This was well-covered by both the ACLU and the Los Angeles Times. The main point of this post is to make available some of the paperwork from the case, but here’s how the ACLU summarized the issues:

Today, the California Supreme Court affirmed the public’s right to access government billing records with private law firms, overturning a previous appeals court ruling in a California Public Records Act (CPRA) case brought against Los Angeles County.

L.A. County should now release the invoices for all closed cases, so that the public can learn how much taxpayer money is going to private lawyers to defend the county and its employees, including the many cases against the Los Angeles Sheriff’s Department for brutality against inmates in the county jails.

In 2013, the ACLU Foundation of Southern California … and … Eric Preven … sued the county demanding that it and the Office of County Counsel release invoices detailing the amounts of money billed by private law firms in lawsuits filed against the sheriff’s department and its personnel. The laws​uit, ACLU/Preven v. Los Angeles County, came after county counsel denied several CPRA requests for the documents that list the amounts billed by private attorneys, which are paid by county taxpayers.In the opinion the court rejected the county’s argument that attorney-client privilege extends to government invoices with private legal counsel in closed cases, writing that “contents of an invoice are privileged only if they either communicate information for the purpose of consultation or risk exposing information.”

And turn the page to download bunches of pleadings in the case, including the Supreme Court opinion.
Continue reading ACLU And Eric Preven Score Huge California Supreme Court CPRA Victory Against Los Angeles County Over Release Of Attorney Invoices →

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