Public records, you may have noticed, are essential to the work I do here on MK.Org. Without them it’s hard for me to find subjects without turning to unsubstantiated mouth-off-shooting.1 And local agencies including pretty much every department of the City of Los Angeles have always been very bad about producing records. They stall, they temporize, they lie, they go silent, and use a tediously unvaried set of ridiculous excuses to explain their noncompliance with the law.
And to that list of standardized and implausible excuses they’ve added the COVID-19 pandemic.2 About which they’re almost certainly mostly lying, but I still don’t feel right hassling actual individual City employees about my requests because who knows what unimaginable personal tragedies they might be dealing with? It occurred to me pretty recently that if the City’s going to fail to produce records for me to write about I could write about their failures to produce.
It’s an inexhaustible source of topics, and I’m kicking things off with a post about City Council District 13, an inexhaustible source all on its own.3 This ill-fated district is infamously repped by the widely despised Mitch O’Farrell, who along with his frontman and loyal minion Dan Halden, manages to violate the CPRA in any number of egregious but interesting ways, some of them unique in my experience to his office alone. Today we’re talking about just one of them, which is delay of production.4
By the way, I’m writing this post now because I actually did receive material from CD13 recently in response to three pending requests. The first two of these sought emails between various CD13 staffers and the Hollywood Property Owners Alliance5 from 2018 through May 2019 and the second between CD13 staff and People Assisting the Homeless, roughly from the same range. You can find the material they produced here and here.6
And you might well wonder why I cut off the time span in May 2019. Well, it’s because I made the requests then.7 The point being that it took CD13 a year to produce this material. Now, the CPRA is famously precise about how long a public agency has to respond to a request. According to §6253(c) they must get back to the requester within 24 days.8 But a response is not a production, for which there’s no required timeframe in the law. And apparently as long as the agency keeps telling you they’re about to hand over the goods they’re not sufficiently in violation to be sued successfully.9
All of which is why, no doubt, CD13 in the person of hyperloyal Mitch flunkie Dan Halden, spent the better part of a year telling me they were going to produce any day. Let’s just look at the first request, sent on May 23, 2019. Here’s a timeline with copies of the correspondence!
★ May 23, 2019 me to Halden — This is the request we’re talking about. Like I said, I’ll be writing about the actual substance here later.
★ June 10, 2019 me to Halden — Here’s me asking Halden what’s going on with the request after 17 days without an answer.
★ June 10, 2019 Halden to me — Here’s Halden invoking the “special circumstances” clause mentioned above to announce that he’ll respond by June 14, 2019. This would be within the allowed 24 days.
★ June 14, 2019 Halden to me — Here’s Halden responding on precisely the day he said he’d respond by.10 He says that there are 1,400 pages involved, that they’ll be done by December 31, 2019, and that it’s my fault it’s going to take so long because I ask for too much from them.11 Six months is a long time but as I said above it’s not so easy to sue over just that. Keep that 1,400 pages in mind, by the way. It sure suggests that he already did the search, doesn’t it? This is crucial because the CPRA requires agencies to have done the search before responding. He also invites me to “narrow or focus” my request to get it done sooner.
★ June 14, 2019 me to Halden — Here’s me pushing back on Halden’s request to “narrow or focus”. It’s important to challenge this kind of half-understood legal gibberish when agencies use it. The term “focus” is technical CPRA-logical jargon. It has to do with identifying records in such a way that a reasonable person could tell whether a given record is being asked for. It has nothing to do with the number of responsive records. In certain circumstances the CPRA requires requesters to focus their requests. But narrowing is a whole different matter. The CPRA doesn’t explicitly require narrow requests.12 But agencies love to conflate narrowing and focusing because the law requires requesters to focus and there are very, very few things that the law requires of requesters.
★ June 17, 2019 Halden to me — Here’s Halden nattering on about something putatively in response to my previous email. But most interestingly here he says that there are 1,400 responsive documents. He had previously said pages, creating the impression that he’d finished the search. But 1,400 documents is a very different thing from 1,400 pages. It’s pretty clear at this point that he has not done the search and he’s just making up numbers.13 Pretty clear but not beyond a reasonable doubt. Read on!
★ June 17, 2019 me to Halden — Is it pages or documents? Which one is it!??!
★ June 17, 2019 Halden to me — It was documents, says Halden. He apologizes “if that was not clear.” More passive aggression. He’s the one who said both, which is objectively not clear.
★ March 8, 2020 me to Halden — I waver about waiting to hassle them until after their announced production date. Here I waited until March 2020 to ask Halden what was up with the records he said he’d hand over by December 2019. Sometimes when they announce a really, really crazy future date I will press them for partial productions. They uniformly refuse because, you can be sure, they just made up the date and they didn’t even start working yet. CD15 is notoriously the worst about this14 but they’re all bad.
★ March 19, 2020 Halden to me — It’s still in production. Like they have been working diligently on it the whole time. But they’re not done yet. Which is surely somehow my fault. It will be ready by April 10, 2020. Fortuitously, since they randomly told me the records would be ready on December 31, 2019, a worldwide pandemic has started. This will cause further delays. Even though they are still working on it because they have been working on it. The whole time. Got it?
★ April 9, 2020 Halden to me — The day before Halden said he’d produce he lets me know that they’re still working on it but due to various reasons — there is a pandemic on, after all — the material won’t be done until April 20, 2020. This is eleven months after I made my request.
★ April 20, 2020 Halden to me — They finished on April 20. Halden, who loves the fallacy of the false dichotomy as much as any randomly mendacious local official I’ve worked with over the years, gives me a couple of aggressively stupid choices as to how to receive the material, neither of which includes providing emails in native format as the law requires. Basically it’s like they can print them out on paper and rescan them or they can do some crap involving NextRequest. This is mildly interesting because Halden has spent the last six years claiming that CD13 does not have the technical capability to produce copies of emails in electronic form at all. But due to the pandemic, says Halden, they’ve been forced to do just that.15
★ April 20, 2020 me to Halden — What the hell are you on about, Mr. Halden? Just give me the damn records. And what do you know, he did just give them to me. Emailed them on April 21, 2020 as attachments no less. You can look at them here on Archive.Org.
Now, let’s take a quantitative look at what Halden produced. First of all there were only 591 documents produced. So much for Halden’s claim that there were more than 1,400. It was entirely made up, as I suspected. But maybe he did mean pages? No. These 591 pdfs comprised only 1,201 pages.16 And the request only involved a simple keyword search. It’s not the kind of thing that comes out different at different times of day. As far as I’m concerned this is proof that Halden just made up that number in 2019.
But even more important than that, the metadata of the produced PDFs tell us when they were created. Here’s the breakdown:17
2020:03:17 — 1 pdf created
2020:04:08 — 3 pdfs created
2020:04:09 — 48 pdfs created
2020:04:14 — 59 pdfs created
2020:04:16 — 44 pdfs created
2020:04:18 — 205 pdfs created
2020:04:19 — 63 pdfs created
2020:04:20 — 74 pdfs created
2020:04:21 — 94 pdfs created
Let’s go back to the timeline briefly and add some of this new information:
★ May 23, 2019 — I made the request.
★ June 14, 2019 — Halden said it would take until December 31, 2019 to finish processing the material and that there are 1,400 distinct records.
★ March 8, 2020 — I asked Halden for a status report.
★ March 17, 2020 — Halden exported a single responsive PDF.
★ March 19, 2020 — Halden told me he’d be done by April 10, 2020.
★ April 8, 2020 — Halden exported three responsive PDFs.
★ April 9, 2020 — Halden exported 48 PDFs and also told me that he wouldn’t be able to finish until April 20, 2020. You can see from the previous information that he didn’t even look at the matter between March 19 and April 8.
★ April 14 through April 19, 2020 — Halden exported the rest of the emails.
★ April 20 and 21, 2020 — Halden redacted 162 files. The redactions are beyond ludicrous. They need an entire post to themselves, which will be part 2 in this very series, coming very soon.
This is an interesting, not to mention appalling, situation. The Public Records Act is very clear in stating that agencies are not allowed to delay access to records. This is found at §6253(d), which says unambiguously that ” Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.” And it’s hard to imagine that O’Farrell, who’s obviously directing Halden, isn’t both delaying and obstructing access to records here.
Halden lied about the number of documents involved. He lied about how long it would take to process them. He lied about processing the request. And the net effect of his lies is that it took eleven months to produce records that he could have finished in a week or less based on the metadata. There are some thorny problems involved in holding O’Farrell to account for his outlawry, though.18 They’re not, however, insurmountable and I hope to get back to you at some point with at least an explanation and, I hope, an actual lawsuit.
Meanwhile, let’s all think about the irony here. Mitch O’Farrell is basically running a criminal operation out of his office by scoffing at the CPRA’s requirements.19 At the same time, since the very pandemic his flunkies so cheerfully invoke as an excuse not to do their damn jobs, he’s become famous for opposing tenant relief in Los Angeles because iT mIgHt Be iLLeGaL!!! This CPRA nonsense is just part of a broader pattern. It’s Mitch O’Farrell ignoring the law, flouting it, violating it intentionally, when it benefits him. But when it benefits him or his zillionaire paymasters he’ll break any law there is. Stay tuned for the redaction post, cause it’s gonna be a dooze, friends!
Image of Mitch O’Farrell’s loyal flunkie Daniel H. Halden is ©2020 MichaelKohlhaas.Org and of course it is, of course.
- Which I’m really reluctant to do. I have a tendency to jump to conclusions, not weigh all the evidence, miss obvious connections, and so on. I could never be a real journalist because among other reasons I’m too sloppy. But when I publish actual real records none of that matters. The records say what they say no matter what nonsense I spin up when I publish them. Read them for yourself, draw your own conclusions, and so on. The system protects me even as it informs you. Or, you know, that’s what I tell myself.
- This began for me on March 13, 2020, the day after Eric Garcetti barred the public from City Hall, with an email from Frank Mateljan, who staffs CPRA matters for the Los Angeles City Attorney, telling me that my future inspection appointments were cancelled. Since then pretty much every department has repeatedly and implausibly used the pandemic as an excuse. For instance I have requests pending with LAPD since 2018. The first two years they didn’t finish them they either didn’t give a reason or blamed me for asking for too many records. Then the pandemic struck and that’s been the reason ever since. I imagine that if it ever ends they’ll go back to their other reasons and the records still won’t get sent. Or LA Sanitation, who told me that since they were working from home they were unable to physically search their offices for responsive records. Which would have made sense if the records I asked for weren’t emails. And if the LA San employee hadn’t told me this via email. Which makes it pretty implausible that they don’t have access to their emails.
- This post won’t cover all of O’Farrell’s violations of the CPRA. Not even close. I will write up some of the many, many others from time to time when I’m in the mood.
- Again, I’m not covering close to every way in which O’Farrell violates the CPRA with respect to either of these issues. Just a couple specifics that are on my mind right now. When I started writing this post I meant to discuss O’Farrell’s redaction policies, and that’s reflected in the cartoon, but there just was not space! I’m doing that one next, so stay tuned!
- This gang of morons seems to have decided to call itself something different for some reason having to do with some consultants they hired for, I have no doubt, zillions of dollars in public money. I won’t dignify this nonsense by noticing it and I suggest that you do the same should your conscience allow.
- I’ll have plenty to say about the content of this stuff later.
- Actually one of them was from early June 2019 but I often cut off the search time at the end of the previous month if feasible. This makes it easier to keep track of multiple requests for the same correspondents.
- I’m glossing over some details. Actually they must respond within 10 days unless one of a short list of enumerated exceptions apply in which case they can extend the response deadline by up to 14 more days. In practice though they do this whether or not the exceptions apply and it appears that it’s not realistic to expect judges to enforce this particular clause in the absence of other more substantial violations. The agencies seem to understand this and hence the deadline might as well be 24 days.
- Or it’s a crapshoot depending on a judge’s discretion, which is famously unpredictable. This is fine if one can afford to pay lawyers for their work up front so that they’re not risking money they’ve earned. If not, though, a lot of lawyers, rightfully so, are reluctant to take the chance. Again I’m glossing over some details, one of which is the fact that an agency’s continued assurance that they’re going to produce may not stop them from being found in violation by a court but may lead to the judge refusing to award attorney’s fees to the requester on the theory that since the agency said they were going to produce the lawsuit wasn’t the catalyst for the production. This is one of the few ways that a requester’s fee motion can be denied even if the agency produces records after a suit is filed.
- Note that this is actually a red flag. City staffers do this so often, no matter how far out the date is, that it’s clear they’re creating a calendar item to remind them to respond and then not thinking about the request at all until then. This is a violation of the CPRA, which forbids them from delaying access to records.
- This kind of passive aggression is common among LA City staff, not to mention other public agencies. If you ask for a lot of stuff that’s why the delay is your fault. If you don’t ask for a lot of stuff maybe there’s another reason, COVID is popular these days, or maybe it’s too technically difficult, or maybe no reason at all.
- The word “explicitly” is hiding a semi-exception to that rule but it doesn’t apply here and it’s too off-topic to get into.
- Very, very common practice, that. LAPD is the worst about it but they all do it.
- Wait for a future post in this very series!
- If you ever happen to forget that you’re dealing with people for whom words have no meaning don’t worry. They’ll remind you soon enough!
- No, I did not add this up by hand. And I’m inordinately proud of the BASH script I used to find it, which went like this:
for th in *.pdf
j=`pdfinfo "$th" | grep Pages | sed 's/.* //'`
k=$(( k + j ))
- This is almost certainly wrong in the day by day count. The redaction tool that Halden used changed the creation date of the PDF. But he only redacted on April 20 and 21. It’s most likely that by April 19 he’d finished exporting emails as PDFs and then spent the 20th and 21st redacting the ones he was going to redact. That’s the only error and clearly it’s not substantial.
- These are fairly technical and an explanation here would make this post longer than I want it to be. The exceedingly short version is that the CPRA only authorizes a lawsuit for an actual denial of access to records. Other violations aren’t actionable under the CPRA. So in a case like this it’s necessary to argue that the delay constitutes a denial. But as long as they’re discussing production it’s not a routine matter to establish that. But there are other causes of action besides the CPRA.
- It’s rhetoric. Probably it’s not a crime for a public official to violate the CPRA. But it might be. It certainly freaking ought to be.