Tag Archives: Trade Secrets

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

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 secrets1 and sometimes that they’re material found in personnel files.2

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.3 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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The Fascinating Story Of How It Took Three Months And A Demand Letter From An Attorney To Get Rena Leddy To Disclose That The Fashion District BID Is Paying Steve Gibson Of Urban Place Consulting $215 Per Hour For BID Renewal Consulting, Which Is Less Than Larry Kosmont Gets But More Than Ed Henning

Late last year it occurred to me that BID consultants, who help BIDs with the City processes necessary to establish or renew a BID, are essentially engaging in lobbying activity as defined in the Municipal Lobbying Ordinance at LAMC §48.02 and yet none of them1 seemed to be registered with the Ethics Commission as required by LAMC §48.07(A).

I then spent months piecing together over 100 pages of evidence to show that BID consultant Tara Devine had violated this law. Subsequently it occurred to me that the contracts that the consultants sign with BIDs would provide essential evidence that they’d been acting as lobbyists, so I determined to request these from many renewing BIDs. This led me to the discovery, thanks to the incomparable Laurie Hughes of the Gateway to LA BID, that GTLA’s BID consultant, Larry Kosmont, actually was registered as a lobbyist and had disclosed his BID consultancy as lobbying in his required reporting. The San Pedro BID is also up for renewal, and has recently released a fairly complete set of BID renewal records.

This brings us to the Fashion District. On February 21, 2017 I emailed Rena Leddy to request, among other material:

… all records associated with the renewal process, including but not limited to communications between the BID and the consultant and/or the engineer, contracts with and invoices from the consultant or the engineer, materials prepared by the consultant or the engineer for the renewal process, databases and mailing lists prepared or used by the consultant or the engineer, and also any communications between the consultant and the engineer that aren’t already responsive to the first part of this request.

The story of what happened after that stretched out over three months and generated many many megabytes of discussion. Read on for a (far too) detailed and exceedingly well-documented narrative recounting, complete with a happy, happy ending!
Continue reading The Fascinating Story Of How It Took Three Months And A Demand Letter From An Attorney To Get Rena Leddy To Disclose That The Fashion District BID Is Paying Steve Gibson Of Urban Place Consulting $215 Per Hour For BID Renewal Consulting, Which Is Less Than Larry Kosmont Gets But More Than Ed Henning

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Kosmont Invoices For Gateway To LA BID Reveal How Much Time It Takes To Get A BID Renewed, And It Doesn’t Look Good For BID Consultants, Like Tara Devine, Like Urban Place Consulting, That Are Not Registered As Lobbyists With The City

Larry Kosmont handled the Gateway to LA BID’s 2014-5 renewal and was, very properly, registered as a lobbyist while doing so.
You may recall that the Los Angeles Municipal Lobbying Ordinance requires qualified lobbyists to register with the City Ethics Commission and also disclose a bunch of interesting information about their clients and their income. Also, the process of establishing or renewing a BID is fairly complex, and most property owners’ associations1 hire a consultant to guide them through the process. These consultants are regulated and recommended by the City Clerk’s office.

The process of getting a BID established or renewed, it turns out, looks an awful lot like the definition of lobbying activity to be found at LAMC §48.02, which is essentially preparing information and discussing it with City officials as part of influencing the passage of municipal legislation. The law requires anyone who’s paid for thirty or more hours of this over three consecutive months to register as a lobbyist, and it’s generally extremely hard to prove that someone’s met this criterion. You may, e.g., recall that earlier this year, in order to make a reasonably convincing case that Venice Beach BID consultant Tara Devine had passed this threshold, I spent months piecing together more than a hundred pages of evidence regarding her BID consultancy work.

But recently it’s occurred to me that these consultants have contracts with the BIDs they service, and that at least in the case of BID renewals, the contracts will be accessible via the Public Records Act.2 The contracts will contain some information about how much time the consultants spend on the project, and thus should be useful as evidence in reporting consultants to the Ethics Commission for lobbying without a license.

The project started to produce results at the end of February, when the incomparable Laurie Hughes of the Gateway to LA BID supplied me with her BID’s contracts with Larry Kosmont, who was handling the renewal process.3 Well, late last week, Laurie Hughes gave me an absolutely essential set of documents, consisting of detailed monthly invoices from Kosmont to the BID during the 15+ month renewal process. These are fascinating,4 containing as they do detailed inventories of every individual task involved in the renewal process broken down into fifteen minute billing increments. Turn the page for more descriptions, discussion, and speculations.
Continue reading Kosmont Invoices For Gateway To LA BID Reveal How Much Time It Takes To Get A BID Renewed, And It Doesn’t Look Good For BID Consultants, Like Tara Devine, Like Urban Place Consulting, That Are Not Registered As Lobbyists With The City

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