All over the State of California local agencies are using the COVID-19 pandemic as an excuse to deny the public access to records required by the California Public Records Act. I don’t, therefore, have nearly as much material to write about so in response I’m writing about the lack of records instead, and the various ways agencies deny access. Here are some earlier posts on this topic.
It’s well-known among requesters of public records that agencies don’t just violate the law, they don’t just ignore it or misunderstand it or willfully misinterpret it. They also whine about it constantly, they aggressively mischaracterize requesters to create the impression that the requests are the problem rather than the agency’s noncompliance, and so on.
Such behavior is bad enough when governments do it, but at least in the state of California numerous private corporations, if created by the government to carry out government functions, are also subject to the Public Records Act. These entities, mostly business improvement districts and charter schools, are not only subject to the CPRA by law but also due to contracts they sign with their authorizing governments.
It strikes me as especially egregious when such quasi-private entities whine about their CPRA obligations and gaslight requesters because they voluntarily agreed via contract to comply. This is a brief post to highlight a recent example involving the gentrification-enabling Highland Park charter conspiracy known as El Rio Community School. It’s not the most egregious instance I’ve encountered, but it’s straightforward, so a good illustration.
The story begins with three requests for records I sent to Dr. Chau in May 2020.1 Just asking for the usual stuff, like emails, bank statements, copies of contracts with consultants, and so on. I ask for records like this from literally hundreds of local agencies, departments, business improvement districts, charter schools, and so on. I routinely get hundreds or even thousands of responsive records. This is how the law works.
When an agency receives a request for records the CPRA gives them ten days to respond.2 It’s important to remember that this response doesn’t have to include the actual records. It must, though, include notice as to whether responsive records exist and, if so, an estimated timeline for production. I sent my third request on May 25, so Chau hasn’t had to respond yet, and she has not. However, she did respond to the first two.3
The law’s very clear on what this initial response must include, but of course it’s always allowed to put more stuff in, and that’s where these emotionally wounded agencies, so put out by having to follow the law, really come to life. Take a look at Dr. Chau’s first response. She more or less includes the required information, which is a statement that responsive records exist and an approximate date by which they’ll be produced.4 But that’s not all she wrote, not by a long shot. She wants to make sure I know how much trouble it’s going to be for her.
As we’ve explained to you numerous times, El Rio’s charter term has not started, the school has not opened, El Rio has no employees on payroll, and we are all going through a global pandemic due to COVID-19. We will do our best to provide these documents but it will likely take months because everything must also be reviewed first. We estimate we can start sending you documents by July 31, 2020. Documents that have confidential or private information, such as attorney-client privileged communications, student information, and personnel information, will not be produced or will be redacted.
The part she’s leaving out of this litany is that she signed a freaking contract with the Los Angeles Unified School District agreeing to comply with the California Public Records Act. They would never have given her all that money if she didn’t agree. If any of those excuses mattered, one wonders, why didn’t LAUSD take them into account when they wrote the contract? And all the money that LAUSD paid Chau was for the express purpose of getting her school running. Why isn’t she adequately staffed to meet her contractual obligations?
And she also wants to complain about me having sent two other requests. Which is a perfectly normal thing for me to do. If I realize I need more records does she expect me to wait until she’s done with earlier requests to ask for them? Why? If this made sense the legislature could easily have written it into the law but they chose not to, obviously.
Not only all that but she wants to be sure I know that she thinks my request is “unreasonable.” Of course, a request being “unreasonable” is not an allowable exemption. And she doesn’t say that it is. And she doesn’t say that she won’t produce. She just wants me to feel bad. Which I don’t:
Before we could even respond to this, El Rio received two other very broad Public Records Act requests from you. We’ll respond to those separately, but taken together, the requests seem to ask for every single El Rio record under the sun, including non-public records. Based on our understanding of the law, this kind of request for everything is unreasonable.
Things get even worse in Chau’s second response. Well, OK, not that much worse. She’s mostly copy/pasting herself5 But she strikes one new note here, about how darn many requests I send: El Rio is doing its good faith best to respond to your myriad requests. Yammering on about how many requests they receive is yet another gaslighting tactic, super-popular among peevish public agencies and officials.
They want to make requesters feel guilty for asking for too much, as if it’s the fault of the public that public agencies won’t comply with the law. It’s ridiculous, and possibly made even more so that by “myriad” Dr. Chau means three. Three requests is not a myriad in any possible world. If you know the name of the number it’s not a myriad.6
And that’s it. That’s the story. Full of sound, sprinkled lightly with well-disguised fury, signifying not a heck of a lot, but it’s what I have. Until the records start coming in! Oh yeah! I almost forgot the moral! Liars gonna lie but they gotta comply!
UPDATE: As I was finishing up this piece Dr. Chau sent a response to my third request. It’s pretty much the same as the others, doesn’t change the story at all.
Image of El Rio Community School supreme commander Katie Sobczak Chau is ©2020 MichaelKohlhaas.Org and if you want any more you can sing it yourself.
- Actually the story is only about the first two requests since Dr. Chau has not responded to the third yet. I doubt her response will change the story much.
- This is found at §6253(c), which says: Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. There are some circumstances, explained in the same subsection, under which an agency can delay their response for an additional 14 days, but this bit isn’t relevant to the story I’m telling here.
- Agencies habitually wait out the ten days and respond at the last possible minute. They think they’re being clever by doing this but the law’s pretty clear that they’re allowed ten days if they need ten days to accomplish what’s needed to respond properly. If it can be done in less time they must do it in less time. So while it might be true that they’re being clever in the sense that there probably won’t be consequences for their violations, they’re still violations. This requirement is implicit in §6253(d), which states: “Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.”
- Dr. Chau actually omitted the required explicit statement that ERCS possesses responsive records but given that she did say she’d start producing on July 31, 2020, I guess it’s implicit that there are responsive records in their possession.
- Or, more accurately, she’s copy/pasting some lawyer that she no doubt paid with some of that public money to advise her about how to deal with the CPRA requests she seems so put out by having to answer.
- In some technical sense this is wrong. At one point apparently the word “myriad” meant literally ten thousand. Not any more, though!