Perhaps you recall that in August 2018, due to the unhinged intransigent obstructionism of both Ms. Blair Besten, the half-pint Norma Desmond of the Historic Core, and Mr. Jeffrey Charles Briggs, the self-proclaimed Hollywood superlawyer with whom she cahoots, I was forced to file a petition to enforce my rights under the California Public Records Act with a trial scheduled for September 3, 2019 at 1:30 PM in Department 85 of the Stanley Mosk Courthouse.
Well time rolls on, one damn day at a time, we’re all done with meeting and conferring and discovery and all the suchlike pleasant pastimes in which we, the litigious few, engage like some elaborate dance before the main event, and now it’s time to file our trial brief. So that’s just what we did, just yesterday, and you can get a copy here.
And what a brief it is, friends, elaborating as it does on not just the broad overview of the utter unhingedness of Besten’s intransigent obstructionism, but both the nitty and the gritty, every last gritty little grain, of it, spelled out in painstaking detail like a tale told not by but certainly of an idiot, full of sound and fury, signifying a lot of something about a whole damn lot of nothing.
Read on for some selections! Although, listen, I’m leaving out all the small-scale details of the BID’s abject failure to respond properly to my requests, where they sent 19 emails here and 17 emails there, none of which were responsive, and then repeated this over and over and over again and then was all like computer problems! Logistical difficulties! Boo freaking boo-hoo-hoo! That right there is a far more than adequate summary.
Also I’m leaving out the details of the requests, which were for interesting emails, which is more than enough detail to follow the argument. If you want to read all that stuff, and the supporting evidence, and it is certainly worth reading, read the whole brief!
Don’t miss the place where Blair Besten insisted under oath that those things that Mailchimp sends out to subscribers aren’t emails, they’re newsletters, and then when asked again if they were emails she was instructed by her supergenius of a lawyer, Mr. Jeffrey Charles Briggs, not to answer as the question called for an expert opinion. Also check out the super-mathematical agreement I made with the BID for production schedules for future requests!
MEMORANDUM OF POINTS AND AUTHORITIES
A. Case Background and Relief Requested
This California Public Records Act lawsuit arises from records requests by MK (“Petitioner”) to the Historic Core Business Improvement District Property Owners Association “Respondent”) seeking emails Respondent exchanged with the City of Los Angeles, its Business Improvement District (“BID”) renewal consultant, other Downtown BIDs, developers and businesses, as well as StreetPlus, a company that provides security and related services. Respondent sent and received these emails to conduct its business and further its interests. Respondent belatedly produced some of the requested records. However, due to its dilatory conduct as well as institutional incompetence, it has failed to produce all responsive, non-exempt records. Petitioner filed his Cal. Gov’t Code §6259, subd. (a) 1 Petition on August 13, 2018. (“8/13/18 Petition”). As to records not produced, Petitioner now seeks the Court’s order directing 1) disclosure of unredacted, native format records Respondent previously produced redacted, in hard copy in response to his January 24, 2017 request and 2) a new, supervised, search conducted for the other four CPRA requests at issue in the litigation.
The Petition also sought an order regarding the timeframe for Respondent’s records production in response to Petitioner’s future CPRA requests. The parties have reached an agreement and a Joint Stipulation Regarding Timetable for Respondent’s Future Responses to Petitioner’s CPRA Requests is filed concurrently herewith.
A. Respondent is Subject to the California Public Records Act
Respondent Historic Core Business Improvement District Property Owners Association is a property owners association created by the City of Los Angeles in 1998, pursuant to the Property and Business Improvement District law of 1994, Cal. Streets and Highways Code §36600 et seq., to manage the Historic Core Business Improvement District. Respondent is an association subject to the California Public Records Act. Cal. Streets and Highways Code §36612.
B. Requested Items Are Public Records Which Must be Disclosed
Emails, the records Petitioner seeks, fall within the definition of public records. City of San Jose v. Superior Court (2017) 2 Cal. 5th 608, 617 (“It is undisputed that the items at issue here [emails] constitute writings.”); §6252, subd. (e) (public records include “any writing containing information” “regardless of physical form or characteristics.” See also §6254.9, subd. (d) (“Public records stored in a computer shall be disclosed as required by this chapter.”) Furthermore, they are in Respondent’s possession. As Petitioner has met its burden of proof, the burden shifts to Respondent to demonstrate the records are exempt. Respondent cannot meet its burden.
C. Public Interest in Disclosure
In an effort to monitor the workings of Respondent and other BIDs, and disseminate his findings on his website, Petitioner has utilized the CPRA. The materials on Petitioner’s website are available for free to the public. He has been quoted in the Los Angeles Times and his website linked to in various articles. Just last week documents he obtained through the CPRA were referenced in two Los Angeles Times articles regarding charter schools and the articles linked directly to his website. Petitioner has also been contacted by documentary film makers, public interest attorneys, and students from Boalt Hall’s Policy Advocacy Clinic who have utilized information on his website for their projects.
1. Los Angeles Municipal Lobbying Ordinance
BIDs such as Respondent use publicly-disbursed money to collaborate and wield political influence with the City. Riskin Dec. ¶ 7. Respondent lobbies City officials on matters such as “DTLA 2040” and other planning and development projects. Petitioner, through the five CPRA requests at issue in this petition, seeks to understand and report on the ways in which Respondent’s staff and board of directors influence City officials with respect to pending legislation and other City matters. Petitioner also seeks to understand and report on the means by which Ms. Besten, Respondent’s Exective Director, collaborates with the staff of other Downtown BIDs to present a unified set of concerns to City staff with whom they interact and lobby.
At the time petitioner requested communications between Respondent and its consultant, in June 2017, the BID was undergoing its renewal process, pursuant to the Property and Business Improvement District Law of 1994, which involved advocating for the passage of two key ordinances. Riskin Dec. ¶ 8. At that time, Petitioner was seeking to understand the means employed by Respondent and its consultant to lobby and influence the City with respect to this municipal legislation.
The Municipal Lobbying Ordinance, LAMC §48.01 et seq., explicitly states the weighty public interest in understanding such matters: “The citizens of the City of Los Angeles have a right to know the identity of interests which attempt to influence decisions of City government, as well as the means employed by those interests.” LAMC §48.01, subd. (B)(2). “Complete public disclosure of the full range of activities by and financing of lobbyists and those who employ their services is essential to the maintenance of citizen confidence in the integrity of local government.” LAMC §48.01, subd. (B)(4). Respondent’s failure to timely comply with the CPRA has led to a valuable opportunity lost for transparency and democratic oversight, as Respondent won’t renew again for another five years. Notwithstanding the public’s strong interest in these issues, and despite the need for openness from private, non-profit corporations providing public functions and municipal services, Respondent has disregarded its legal obligations and restricted public access to information.
5. Respondent Must Conduct a New Search for the 2/22/17, 6/26/17, and 10/26/17 Requests
Not only was Respondent’s search for electronic versions of the 250 pages of redacted records inadequate, its searches for all the requests at issue in this matter have been as well. The CPRA assumes that a production of documents in response to a request will result from a search that competently locates responsive records. As explained below, neither Ms. Besten nor Mr. Briggs are competent to reply to CPRA requests for Respondent’s emails, records subject to disclosure under the CPRA. Due to intentional dilatory tactics or just incompetence, once Respondent hired Mr. Briggs, its searches have been replete with problems which have made an adequate search impossible. Respondent cannot discharge its statutory duties by providing document dumps contaminated by so many non-responsive documents. Nevertheless, Respondent refuses to conduct a new search of its email system to adequately respond to any of the CPRA requests at issue here. It refuses to provide a good-faith response.
Ms. Besten acknowledged that it is ultimately her responsibility to ensure Respondent is complying with its statutory obligations under the CPRA. Deposition of Blair Besten, taken February 21, 2019 (“Besten Depo.”) pg. 87, Exhibit 5 to Flynn Dec. Yet, Ms. Besten admitted she has taken no steps herself, since the initiation of this lawsuit, to ensure that Respondent has produced all responsive records. Besten Depo. pg. 80-81.
i. Ms. Besten Lacks Knowledge to Conduct a Proper Search
Ms. Besten admitted she does not know how to conduct an adequate search for emails to satisfy Petitioner’s CPRA requests. Petitioner asked Respondent to perform a new search and provide only file names for the emails, not the emails themselves. Petitioner made this request so he could compare the files names from the new search to the files already produced. Petitioner proposed that if any new files were identified, then Petitioner would let Respondent know and Respondent would have the opportunity to review the email record for exemptions and necessary redactions before producing it to Petitioner. Had Respondent agreed to this proposal the majority of the 8/13/18 Petitioner would be moot as resolved. Instead, Respondent stated conducting new email searches would be an “undue and oppressive burden.” When Ms. Besten was asked to explain why it would be an undue and oppressive burden to do a new search Mr. Briggs instructed her not to answer. When asked if it would be difficult for her to do a new search she answered “I do not know.”
6. Respondent’s Court-Ordered Subsequent Searches Must Be Supervised
i. Respondent Should be Ordered to Hire Meridian Discovery or a Similar Company to Supervise its Searches
As Respondent has proven itself unable to conduct an adequate search to comply with its statutory obligations under the CPRA, its searches for responsive records in this litigation must be supervised. Petitioner requests the Court order Respondent to hire Meridian Discovery, experts in Computer Forensics and e-Discovery, (https://www.meridiandiscovery.com/). In a federal civil lawsuit in 2017 United States Magistrate Judge Rozella Oliver ordered a cell phone released to Meridian Discovery to “perform search and filtering to located potentially responsive documents.” Meridian Discovery is available and able to conduct or supervise the searches for responsive documents needed here. The Court should order Respondent to hire Meridian Discovery or a similar company to conduct or supervise the remaining searches.
7. Respondent’s Failure to Search its MailChimp Email Account
Respondent sent emails responsive to three of Petitioner’s CPRA requests to the City from its MailChimp account, yet it has steadfastly refused to search that account for responsive records. MailChimp is a marketing service that facilitates the sending of emails. (https://mailchimp.com/). Emails Respondent sent to the City through MailChimp were sent via its employee Paola with the following header: “From: Historic Core BID <email@example.com>.”
That Respondent initially failed to search its MailChimp account was apparently an oversight. But, when Petitioner’s counsel showed Ms. Besten an email Respondent had sent to the City via MailChimp and asked Ms. Besten if she would search that email account for additional responsive records she would not agree to do so. She even tried to deny that they are emails saying, “I consider them not – I never considered them emails…” (This is as asinine as saying emails sent through Gmail aren’t really emails.) To add to the absurdity, when Ms. Besten was asked “[a]re you denying that it’s emails that get sent out through MailChimp?,” Mr. Briggs instructed Ms. Besten not to answer on the basis of the following nonsensical objections: “calls for a legal conclusion. Calls for an expert opinion…” “whether they are or not is a technical answer. She’s not qualified. It has no foundation.” In case there is any doubt that emails sent via MailChimp are indeed emails, see https://mailchimp.com/ which describes the company as an email marketing service, advertising, “Get the word out with email.”
Since Ms. Besten’s deposition Petitioner has repeatedly asked Respondent – in person and through email – to search its MailChimp account for responsive emails to no avail. The Court should order Respondent to search its MailChimp account and produce responsive records. This search should also be supervised or conducted by Meridian Discovery.
F. Respondent Has Stipulated to Producing Records in a More Timely Manner
Petitioner’s second cause of action, under the California Constitution, Art. I § 3 subd.(b)(2), requested the “Court enter an order declaring that for all future CPRA requests from Petitioner to Respondent, Respondent shall produce all responsive documents, subject to properly claimed exemptions, within 30 days, absent a showing of extraordinary hardship.” The California Constitution recognizes that the “people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” Cal. Const., Art. I §3, subd. (b)(1). This right is self-executing as the provisions of the California Constitution are mandatory and prohibitory. Cal. Const., Art. I §26.
At the trial setting conference on November 20, 2018, the Court ordered the parties to meet and confer, including a face-to-face meeting with Respondent’s decision-maker, to see if the parties could settle the matter or at least narrow the issues to be resolved. On December 23 2018, pursuant to the Court’s directive, Petitioner MK and Blair Besten, Respondent’s Executive Director met, with their respective counsel, at the office of Respondent’s counsel, Jeff Briggs. The parties agreed that for all future CPRA requests from Petitioner to Respondent requesting email records, Respondent will search for responsive records and respond to Petitioner’s requests within 28 days and will provide an estimated date of production calculated as follows: by maximum of (2,N/250) weeks, where N is the total number of responsive emails and N/250 is to be rounded up to the next whole number when it is reasonable to do so. Thus Respondent will endeavor to produce responsive emails in no more than 4 weeks (28 days) plus a maximum of (2,N/250) weeks. (For example, if there are 1,000 responsive emails, production must be made within 8 weeks – 4 weeks to respond and 4 weeks to produce the records). Including the value 2 has the effect of affording Respondent no less than 6 weeks to respond and produce no matter how few emails there are. The parties agree to be flexible when there’s good reason to be. Respondent will provide all responsive non-exempt emails all in one batch when processing is complete.
The parties also agree that entry of the Court’s order enforcing these terms will moot Petitioner’s second cause of action as having been resolved. Petitioner respectfully requests the Court enter the order submitted with the Joint Stipulation filed concurrently herewith.
For the foregoing reasons, Petitioner respectfully requests the Court grant the Petition.
Image of Blair Besten is ©2019 MichaelKohlhaas.Org and you could look at this Blair Besten on Twitter if, you know, she didn’t block you yet like she blocked me!