This is just a short post to update you on the AIDS Healthcare Foundation‘s pending California Public Records Act petition against the City of Los Angeles. The petition was filed in September, and you can read about it some detail here. The short version is that the City put out a request for proposals for some housing stuff. AHF’s response was rejected. Subsequently AHF submitted a CPRA request asking for fifteen distinct categories of records related to the RFP process.1
One part of the request was for the other responses to the RFP. The others had to do with communications regarding the RFP, names, resumes, and conflicts of interests of the people who scored the responses, and so on. And the City denied the request with a characteristically terse non-sequitur, stating that: “[it] is our policy not to disclose materials related to competing bids while the contracting process is still ongoing.”
The City of Los Angeles, you may recall, fights very, very few CPRA petitions filed against it. Between 2016 and early 2019 they settled nine out of at least ten cases.2 I myself have filed eight cases against the City since last year and they’ve settled three of them, agreed to settle three others, and two are just beginning. But they’re not settling this one, or at least they’re buying some time before they do settle.3
And therefore on Monday, January 6, 2020, the City filed this answer to the petition. Answers in civil litigation can be notoriously devoid of content, and this one’s pretty much in line with that trend, what with the “to the extent that anything the petitioner said makes any sense respondent the City of Los Angeles denies it” and other such circumlocutions. But Bethelwel Wilson, the Deputy City Attorney who’s staffing the case, did include a couple fragments of substantial argument. In the first place, quoth Wilson:
Respondents’ allege that at all times relevant hereto, Respondents’ acted in full compliance with Michaelis v. Superior Court, 38 13 Cal. 4th 1065, 1067, which held that a public agency may withhold competitive proposals from public disclosure until the “conclusion of the agency’s negotiation process, occurring before the agency’s recommendation is finally approved by the awarding authority.”
And I read the case he cites there, and his description of the decision seems accurate to my admittedly inexpert eye. But the trouble is, I think, that the holding is only that the responses themselves can be withheld until after one is chosen, but the City’s asserted reason for denying access to the records is that their policy is to not disclose records related to the responses. That’s much, much broader than any withholding justified by Michaelis.
And most of AHF’s request is for materials related to the responses rather than the responses themselves. The Michaelis court based its decision on the interest of the public in having a fair and effective RFP process, which very plausibly supports the non-disclosure of responses in a not-yet-concluded process.4 But there’s no way on earth this transfers over to things like the qualifications of the people reviewing the RFPs.
In fact if anything it seems to support their release instead e.g. because the process would be enhanced by public confidence that the selection was being made by qualified and non-conflicted judges. Wilson’s other defense is as weak or weaker:
As a second and separate affirmative defense to the Petition, Respondents’ alleges the records sought by Petitioner, if found to be public records, are exempt from disclosure under Cal. Gov’t Code § 6255.
Section 6255(a) is the infamous and so-called “catch-all exemption”. It allows agencies to withhold records even when there’s no specific exemption authorizing non-disclosure when “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” The City of Los Angeles5 just freaking loves this exemption. The law requires agencies to weigh competing interests before invoking this section but in my experience they never actually do. And certainly they did not do it here.
I mean, I’d almost love to be proved wrong about this because I would like to see these City lawyers make some kind of case that it’s in the public interest to not be able to read the resumes of people reviewing high dollar proposals. But it’s possible that none of this actually matters in this case. Recall that the City stated that their policy was to not release records related to the RFP process while it was still ongoing. This at least suggests that they’re willing to release them afterwards. So for them now to claim that they’re all exempt via §6255(a) is pretty suspect. If they’re actually exempt why didn’t they say so at the time? Anyway, I’m reasonably sure the City will end up settling this case too. Let’s wait and see!
Oh, one more thing. Obviously I’m not a lawyer, and it’s possible, even likely, that absolutely none of what I wrote above is correct or even close to it. In my defense though I will say that, based on a whole freaking lot of experience, even if I were a lawyer the same conclusion would be perfectly plausible.
- (1) All rules, regulations, policies, procedures, guidelines, criteria, instructions and codes pertaining directly or indirectly to the RFP and the proposed awards related to the RFP;
(2) Copies of all responses to the RFP submitted HCIDLA or the Mayor’s office;
(3) All documents (including, but not limited to, records, correspondence, communications, reports, minutes, memoranda, e-mails and notes) relating directly or indirectly to the RFP;
(4) A list of all individuals who reviewed and scored RFP submissions;
(5) Information showing the specific individuals assigned to assess and score each proposal;
(6) Resumes and background information for each individual involved in scoring and evaluating proposals;
(7) Any conflict of interest statements or disclosures submitted or signed by or on behalf of the individuals involved in scoring and evaluating proposals;
(8) Evaluation, guidance and scoring instructions provided to individuals who reviewed and scored RFP submissions;
(9) Scoring sheets associated with the review of AHF’s proposal;
(10) Scoring sheets associated with each of the other applicants’ proposals;
(11) Any evaluations or other assessments of AHF’s proposal;
(12) Any evaluations or other assessments of the other applicants’ proposals;
(13) Any correspondence between HCIDLA, the Mayor’s office, and the RFP applicants regarding a determination of the award of a contract pursuant to the RFP or the awarding of a contract pursuant to the RFP;
(14) Any correspondence among or between HCIDLA, the Mayor’s office, the individuals involved in scoring and evaluating proposals related in any way to the RFP; and
(15) All rules, regulations, policies, procedures, guidelines, criteria, instructions and codes prepared by or in the possession of HCIDLA or the Mayor’s office provided by any other County or State agency which govern the process for procurement applicable to this RFP.
- Sorry to be vague. I don’t have a complete record of the City’s CPRA cases.
- Buying some time in the sense that they obviously can still settle even after answering the petition. They did this very thing in one of my eight cases against them. And their answer in that case was just as idiotic as you will understand this one to be if you just keep reading, friend!
- I’m not saying I agree with this opinion, but it makes some sense. I don’t particularly disagree with it either. I can see arguments on both sides here but the court has to come down somewhere and this is where they chose.
- And every other outlaw obstructionist agency in the whole damn state, for that matter.