UPDATE: Dr. Pamela Magee hired a lawyer to advise on this matter and he capitulated to my demands! At least in theory! So these emails should be forthcoming! At least in theory!
So there’s this charter school in the Palisades, Palisades Charter High School, which is moderately famous for, among other things, being chock full of both satan-worshipping privatizers1 and openly racist baby thugs. Two salient facts about Pali High2 are that the supreme boss of the school, Doctor Pamela Magee, earns more money in one year than all but three of the sixty thousand employees of LAUSD, and that a former teacher, Roya Saghafi, is suing the school for the torment she suffered at their racist horrible hands while she worked there.
You can read about both of these matters in a previous post of mine and also get your hands on Saghafi’s complaint. And I’ve been following up on the Saghafi story, of course, and as part of this effort I sent this request under the California Public Records Act to Doctor Pam Magee asking for:
… emails in the possession of any administrative staff which are to/from/cc/bcc Roya Saghafi from January 1, 2012 through March 29, 2019.
And eventually I got a response from Doctor Pam Magee, and what she said was not encouraging:
This information is not available under CPRA 6254b as these records pertain to pending litigation.
This doesn’t seem right! Better read the code section. Always read the code section:
… this chapter does not require the disclosure of any of the following records:
(b) Records pertaining to pending litigation to which the public agency is a party … until the pending litigation … has been finally adjudicated or otherwise settled.
Yikes, man! She quoted it accurately, so that was a disappointment. But on the other hand it seemed really implausible that the emails I’d requested could be exempt on this theory. First of all, they obviously weren’t exempt before Saghafi filed suit so they couldn’t really become exempt on the day she filed.
Also, most of these emails probably don’t even have anything to do with the litigation, but even if they did how is Doctor Pam Magee supposed to decide if they do or not? She doesn’t have access to the thoughts of the plaintiff, so how’s she going to know if some superficially innocuous email is actually key evidence, or the reverse?
And there just can’t exist exemption claims where the person whose duty it is to determine whether exemptions apply doesn’t have access to information required to make the determination. Or where previously non-exempt records magically become exempt just cause some third party did something. So I thought I’d better do some legal research into what this code section actually means in practice.
Well, Google and friends are pretty hopeless for searching for cases interpreting specific code sections. The best tool I know for this purpose is LexisNexis. Unfortunately access is really really really expensive. So expensive that e.g. the Los Angeles Public Library doesn’t have it. But, and this is really valuable information, the Los Angeles County Law Library at First and Broadway does have it, and it’s free to the public.3
And the way LexisNexis works for this kind of thing is that you look up the code section and right there in one of the tabs there’s a detailed explanation of every case interpreting it and links to them. And this led me straight to the most fabulous, the most wise, Court of Appeal decision in Fairley v. Superior Court. And in that case, the court, citing and adopting a remark made in an earlier opinion, City of Hemet v. Superior Court. The salient bit goes something like this:
In City of Hemet v. Superior Court … the court … advocated adoption of a limited construction of the pending litigation exemption of section 6254, subdivision (b) as follows: “… a document is protected from disclosure only if it was specifically prepared for use in litigation.” … In so doing, the court rejected a broad construction of the exemption which would “cut off access to documents relevant to later-instituted litigation.” … We agree with the construction of the pending litigation exemption advocated by the court in City of Hemet.
I mean, what a freaking relief, right? And also, clearly, this means that those emails, whatever is in them, are not exempt on this bizarro-world 6254(b) theory of Doctor Pam Magee’s. So I fired off a snotty little reply, ending with a snotty (but nevertheless quite serious) little threat, (of which there is a snotty little transcription below), and that’s where we are today. I will regale you with more news, friends, when I have it!
Date: Wed, 22 May 2019 16:43:41 -0700
To: “Pamela Magee” <email@example.com>
Subject: Re: CPRA responses (PALI.2019.04.19.b)
I congratulate you on your wrong but at least new-to-me-wrong interpretation of Cal. Gov. Code Section 6254(b). I have had a lot of flim-flam pulled on me over the years with respect to exemption claims but no one’s ever pulled this particular one! I mean, I could see immediately that it was wrong, but I didn’t know whether or not the world agreed with me and, if it did, what might the world’s reasoning be. Which is why I actually had to do some actual legal research! But it worked out like I thought it would!
So anyway, thanks for the novelty, but your claim that these emails are exempt as “pertaining to pending litigation” is, it turns out, completely, utterly, thoroughly, and even literally indefensible. If you take a look at the 1998 case Fairley v. Superior Court you’ll see that the court held, with respect to 6254(b), citing and upholding dicta in the earlier case City of Hemet v. Superior Court, that “… a document is protected from disclosure only if it was specifically prepared for use in litigation.” Since no one, I assume, thinks that any of these emails were “specifically prepared for use in litigation” it’s pretty clear that they’re not exempt and you ought to hand them over immediately.
If I don’t hear from you by Friday, May 31, with a reply expressing complete and unconditional agreement with this analysis and a firm date by which you expect to produce these records I will take this lapse to mean that you’re continuing to refuse to produce the records, and I will take action accordingly.
Thank you, as always, for your assistance, Dr. Magee!
Image of Doctor Pamela Magee is ©2019 MichaelKohlhaas.Org and see this DPM out here!
- Especially including Lucy Polhill’s mom, a privatizer if ever there was one.
- This is what the locals call the place. Have done ever since before it went private. True! It used to be an ordinary public school before privatization. Well, OK, “ordinary” is a misstatement. It was then as now full of really privileged, really unbearable, offspring, spawn, and so on, of the kind of people who live up there in northwest zillionaireville. Not so ordinary after all.
- One drawback is that they do not seem to offer remote access, but on the other hand it’s easy to get there on the bus and convenient to a bunch of really fabby lunch places in Chinatown, so it’s always pleasant to make the journey.