Citizen on a mission sues district for violating state public records act
By Dorian Hargrove
San Diego Reader
May 27, 2016
San Diego Unified School District is discriminating against a student advocate in her quest to obtain public records, says a newly filed lawsuit filed on behalf of San Diego resident Sally Smith.
Over the past six years, Smith has been dogged in her quest to end illegal school fees and raise awareness of poor investigations into sexual assaults and other abuses within the country's eighth-largest school district.
To help in her quest, Smith regularly submits public records requests to the district.
Oftentimes, those requests are met with resistance from school officials.
In November 2014, Smith sued the San Diego Unified School District after she was denied access to log on to district computers to view public documents that are only offered on those certain computers.
While that case continues to make its way through court, Smith has filed a new lawsuit.
On May 24, attorney Paul Boylan, who specializes in public records law, filed a lawsuit on Smith's behalf after the district refused to hand over legal bills that the district paid to outside counsel who were advising school-board members on the controversy surrounding former trustee Marne Foster.
...In response, the district hired legal firm DLA Piper to look into the alleged abuses of power. But a short time later, trustees voted to suspend the legal contract after the San Diego County district attorney announced that a criminal investigation had been launched. On March 8, trustees approved paying DLA Piper $34,000 for work leading up to the D.A.’s investigation.
Smith wanted to see the invoices for legal work, documents that are typically available under California's public records law. Nine days after filing her request, the district responded by stating there were "no non-privileged documents responsive to your request."
Days later, Smith responded, "This is not a legal document. It is a standard request for payment detailing what taxpayers paid for. I made the request...just a few days after the San Diego Unified School Board approved paying the bill."
Again, the district refused: "...[T]here are no non-privileged documents responsive to your request. More specifically Government Code 6276.04 protects attorney client communications, in addition to Section 6068 of the Business and Professions Code and Sections 952 and 954 of the Evidence Code."
Smith once again contacted attorney Boylan to file a lawsuit...
Showing posts with label public records. Show all posts
Showing posts with label public records. Show all posts
Saturday, May 28, 2016
Sunday, August 03, 2014
San Diegans are paying to defend a politician who claims San Diegans have no right to obtain records
You think that just because you're paying the lawyer, that means he's acting in your interest?
No, public entity lawyers protect public officials. They rarely seek to protect the public. (Mike Aguirre was an exception to this rule. He believed he represented the people of San Diego.)
We elected them--and now we're paying for their efforts to keep us ignorant of what's going on.
Both Voice of San Diego and UT-San Diego are covering the topic:
The issue of concealing public business in private emails will be addressed by the California Supreme Court in Smith v. City of San Jose (March 19, 2013, No. 1-09-CV-150427).
No, public entity lawyers protect public officials. They rarely seek to protect the public. (Mike Aguirre was an exception to this rule. He believed he represented the people of San Diego.)
We elected them--and now we're paying for their efforts to keep us ignorant of what's going on.
Both Voice of San Diego and UT-San Diego are covering the topic:
Morning Report: What to Watch for in Big PD Misconduct Deal
...San Diegans are now in the position of paying to defend a politician who claims San Diegans have no right to obtain the records of public business he has conducted over his personal devices and accounts.
Goldsmith’s office recently coughed up around 1,000 emails relating to city business that went to his personal account, but noted he wasn’t legally required to do so.Secret Public RecordsOn the topic of the public’s interest, the Public Utility Commission decided to withhold an expert report on what went wrong at the San Onofre nuclear power plant. Full disclosure of that report wouldn’t be in the public’s best interest either, according to a PUC attorney.
Shortly after denying the request to release the report in defense of the public’s best interest, the PUC released the report...
The issue of concealing public business in private emails will be addressed by the California Supreme Court in Smith v. City of San Jose (March 19, 2013, No. 1-09-CV-150427).
State's high court takes email case
Justices will decide whether officials can keep public business secret by using personal devices
The California Supreme Court will review a lower court ruling that kept otherwise public records out of public hands if they were sent using private email accounts and devices.The San Jose case involves a resident who asked to see emails and texts of City Council members but was rejected because the communication took place on personal devices and accounts. It’s garnering statewide interest as electronic devices make it possible for public officials to handle more public business outside the usual communications systems...
Wednesday, May 28, 2014
Are public records becoming less public? Extensive use of a private email system set up to avoid legally required archiving of documents
San Diego isn't the only place where the public's business is done in secrecy.
See all posts re public records.
Milwaukee Co. John Doe Documents Unsealed From Secrecy - UPDATE
Puddytat
Daily Kos
May 21, 2014
The lamps are probably going to be burning into the night around Scott Walker tonight.
Documents in the first John Doe Probe, covering Walkers tenure as Milwaukee County Executives, were removed from secrecy today by the Judge overseeing the original John Doe. In the first investigation, 6 of Scott Walkers associates were indicted and found guilty mostly of felonies.
We have only seen a small portion of the documents from prior releases. One release, involving documents in a negligence case brought by the parents of a teenaged boy killed when a chunk of concrete fell from a County parking structure, revealed that Walker, his staff, and his campaign focused on keeping the story out of the press and limit Walkers exposure just before the Gubernatorial election. They succeeded in their efforts with coverage limited to the "accident" and not on Walkers diversion of building maintenance funds to pet projects.
The second release, a bombshell, demonstrated the extensive use of a private email system set up to avoid legally required archiving of documents as well as the extensive coordination between Walkers campaign staff and his official, taxpayer paid, County Executive staff. Intolerance and racism were also revealed in email exchanges.
Who knows what will be revealed when ALL of the documents are released. I can only imagine.
Since most of the communications were generated on private laptops and on a private email system running on a secret router, they were not available for Open Records Requests. Those documents will tell us what was REALLY going on in that office.
Stay tuned.
UPDATE:
I'm going to update instead of doing a new diary because this is still on the Rec List and in public view.
Today, the Milwaukee Journal Sentinel editorialized that current Milwaukee County Executive Chris Abele should release all the documents.
So, it looks to JS that Abele wants to release the documents based on his past statements. They're adding a little more push to ensure it happens.
"The second release, a bombshell, demonstrated the extensive use of a private email system set up to avoid legally required archiving of documents as well as the extensive coordination between Walkers campaign staff and his official, taxpayer paid, County Executive staff. Intolerance and racism were also revealed in email exchanges."
See all posts re public records.
Milwaukee Co. John Doe Documents Unsealed From Secrecy - UPDATE
Puddytat
Daily Kos
May 21, 2014
The lamps are probably going to be burning into the night around Scott Walker tonight.
Documents in the first John Doe Probe, covering Walkers tenure as Milwaukee County Executives, were removed from secrecy today by the Judge overseeing the original John Doe. In the first investigation, 6 of Scott Walkers associates were indicted and found guilty mostly of felonies.
The judge who oversaw a 33-month secret John Doe investigation on Wednesday granted a Milwaukee Journal Sentinel request that he order prosecutors to return to Milwaukee County thousands of public records seized during the investigation.
The ruling means the records would then be subject to the state's Open Records Law, and it would be up to Milwaukee County Executive Chris Abele whether they would be released to the public.
We have only seen a small portion of the documents from prior releases. One release, involving documents in a negligence case brought by the parents of a teenaged boy killed when a chunk of concrete fell from a County parking structure, revealed that Walker, his staff, and his campaign focused on keeping the story out of the press and limit Walkers exposure just before the Gubernatorial election. They succeeded in their efforts with coverage limited to the "accident" and not on Walkers diversion of building maintenance funds to pet projects.
The second release, a bombshell, demonstrated the extensive use of a private email system set up to avoid legally required archiving of documents as well as the extensive coordination between Walkers campaign staff and his official, taxpayer paid, County Executive staff. Intolerance and racism were also revealed in email exchanges.
Who knows what will be revealed when ALL of the documents are released. I can only imagine.
Since most of the communications were generated on private laptops and on a private email system running on a secret router, they were not available for Open Records Requests. Those documents will tell us what was REALLY going on in that office.
Stay tuned.
UPDATE:
I'm going to update instead of doing a new diary because this is still on the Rec List and in public view.
Today, the Milwaukee Journal Sentinel editorialized that current Milwaukee County Executive Chris Abele should release all the documents.
Nettesheim has settled firmly on the side of the public's right to know. Abele has said he's on the same side: He told the Editorial Board a few weeks ago that in a letter to Nettesheim, he had essentially asked the judge, "Whatever you can release, please release," and Abele signed a County Board resolution supporting the release of the documents. Now Abele can prove his support by actually releasing the documents.
So, it looks to JS that Abele wants to release the documents based on his past statements. They're adding a little more push to ensure it happens.
Tuesday, April 15, 2014
Emails show NCTD changed paperwork after info request
How does Investigative Newsource choose which entities it's going to investigate? The news service founded by Buzz Woolley and Irwin Jacobs at San Diego State University seems to work from a rather private agenda. Some public entities are targeted, some are protected by inewsource.
Buzz Woolley and Irwin Jacobs apparently directed their other news outlet, Voice of San Diego, to stop investigating SDCOE (San Diego County Office of Education).
But clearly, Buzz and Irwin feel that North County Transit District is fair game. Perhaps it's closer to home for them?
Buzz Woolley and Irwin Jacobs apparently directed their other news outlet, Voice of San Diego, to stop investigating SDCOE (San Diego County Office of Education).
But clearly, Buzz and Irwin feel that North County Transit District is fair game. Perhaps it's closer to home for them?
Emails show NCTD changed paperwork after info request
by Brad Racino
inewsource
March 27, 2014
The North County Transit District commissioned a $31,200 study without seeking competitive bids, then changed paperwork and attempted to backdate a new contract after inewsource requested the documentation, emails show.
Read this story completely backed up with primary documents.
The study, conducted by the UCSD Rady School of Management on Dec. 20, 2013, details the strengths and weaknesses of NCTD’s leadership team. When the district refused to release it, inewsource sued last week to obtain it.
The public transit agency did release 28 pages of emails in response to another inewsource request that discuss the study’s initial contract and the attempt to alter it retroactively. In the end, according to the emails, the contract type was changed but the date was not.
NCTD has placed at least one employee in its contract department on administrative leave and brought in an outside investigator to look into the process used to contract with the Rady School of Management.
NCTD would not respond to a list of questions inewsource submitted about the contract changes discussed in the emails.
A continuing issue
The Rady School of Management study was not the first time NCTD contracted for services without seeking bids on the work.
In a formal report from September 2012, the private consulting firm SC&H Group observed that the district was using sole-source contracting “without appropriate justification” and possibly as “workarounds” for competitive bidding.
State law requires government agencies to bid out most expensive services, since open competition helps thwart favoritism, fraud and corruption from the acquisition process. But there are exceptions to the law when unique services or specialized skills are required.
doc_graphicRead the SC&H Group’s review.
The SC&H review cautioned NCTD that awarding too many of these sole-source awards, “may result in increased regulatory scrutiny and potential fines.” After the consultant’s report became public, inewsource examined district contracts and found that NCTD’s manager of marketing and communications had recently awarded an unnecessary $50,000 contract to her former colleagues under a sole-source contract.
NCTD later confirmed the award was “not justifiable” in a report to its board of directors and changed district policy to prevent similar occurrences.
A memo inewsource obtained as part of a Public Records Act request indicates the district “discovered” that the new Rady School of Management contract “had been processed in error as a sole source” on Feb. 10, 2014. It did not say how the “error” was discovered or exactly why it was an “error.”
Timeline of past events:
October 2013: NCTD CEO Matthew Tucker and Human Resources Manager Karen Tucholski meet with Rady School of Management representatives to discuss NCTD’s goals and Rady’s offerings.
November 2013: NCTD staff completes online preliminary assessments for the Rady evaluation.
Dec. 9, 2013: Rady sends NCTD an invoice for $31,200 for the leadership program. The invoice notes a due date of Jan. 9, 2014. There is no contract in place.
Dec. 20, 2013: NCTD staff attends the one-day Rady School of Management program at UCSD.
Jan. 9, 2014: Due date for Rady invoice passes.
Jan. 16 – 29, 2014: Three NCTD managers sign and date the Rady sole source agreement.
Feb. 7, 2014: NCTD pays the Rady School of Management for the service. inewsource submits a Public Records Act request for the Rady scope of work and method of contracting.
Current Events
On Feb. 7, a Friday, inewsource submitted a Public Records Act request asking what type of contract NCTD used with Rady.
On Feb. 10, a Monday, at 10:41 a.m., NCTD staff exchanged emails under the subject heading “UCSD — Rady.”
One read:
“There have been a few changes. The sole source is no longer needed.”
Karen Tucholski, NCTD’s Human Resources manager, was told by Fred Knapp, an NCTD management analyst, to scrap the sole-source form — which had already been completed, signed, and used to pay UCSD the $31,200 — and instead use a different method of procurement.
On Feb. 11, Tucholski passed the new form up the ladder for signature. She also sent the Rady agreement to the district’s CEO, Matthew Tucker, to sign and backdate two months. He did not sign the new form. He did sign the agreement but did not backdate.
doc_graphic Read the entire email chain.
The next day, on Wednesday, Feb. 12, an employee in the contracts department expressed concern about a public request for information about the still-unfinished paperwork.
“Getting this completed needs to be a top priority,” she wrote to Tucholski. “There has been a PRA [Public Records Act request] for some of this information and the invoice has already been paid based upon the sole source documentation.“
The agency’s own compliance officer, looped into the conversation that day, appeared confused by what was happening.
“Isn’t all of Rady’s work complete?” he wrote to Tucholski that same day. “…I’m not sure I see the value of going through this process.” He then recommended adding a memo to the case file explaining the timing and circumstances of the proposed changes.
According to this month’s board agenda, NCTD is planning to award a $213,000 contract to a different consulting company, called Calyptus Consulting Group, for a Rady-like study of its procurement division. The competitively-bid contract will result in a detailed report and analysis, which the district plans to keep confidential as “attorney-work product.”
ABOUT INEWSOURCE
inewsource is an independent nonprofit...at San Diego State University’s School of Journalism and Media Studies.
Karin Winner is on the board. She was editor and VP/News of the San Diego Union-Tribune 15 years; retired in 2010.
Friday, July 19, 2013
Tim Crews wins in California Court of Appeal; trial court may not punish him for filing suit to get public records from school district
The California School Boards Association (CSBA) supported Willows School District's use of taxpayer dollars to sue a citizen for demanding transparency.
See previous post on this story HERE.
Victory for publisher Tim Crews and CPRA in Appeals Court decision
First Amendment Coalition
July 19, 2013
Tim Crews, Editor & Publisher Willows Valley Mirror
A state Court of Appeal has ruled that small-town California newspaper publisher Tim Crews does not have to pay legal fees to a school board he sued over his public records request. The unanimous decision (read the Court of Appeal's decision) represents a crucial victory for government transparency and a welcome success for the First Amendment Coalition, which was instrumental in organizing and underwriting Crews’ successful defense.
“The appeals court’s decision makes clear that, in deciding whether to go to court to contest an agency’s denial of your request for public records, you will not have to fear a crushing penalty,” said Peter Scheer, FAC’s executive director. “If the court had decided differently, no journalist or ordinary citizen would ever again file suit to enforce the PRA, for fear of being bankrupted by a court order to pay a penalty of tens of thousands of dollars.”
Scheer added: “That would have been a disaster, not just for Tim Crews of course, but for government transparency in general.”
The case grows out of a public records request filed by Crews, publisher of the Sacramento Valley Mirror in Glenn County, an agricultural community in Northern California. The request sought emails of the superintendent for the Willows Unified School District. Crews was investigating whether the district was using school resources to influence a political campaign (a line of inquiry that ultimately did not pan out).
The school district began delivering copies of the emails the day after Crews filed suit. It also withheld several thousand emails on various grounds. A Superior Court judge ruled in the district’s favor after reviewing the withheld emails. The court not only dismissed Crews’ PRA suit, but then took the highly unusual step of ruling that Crews’ case was frivolous and on that basis ordering him to pay the district’s legal fees--an amount that was ultimately set at $56,000.
The Appeals Court, while agreeing with the dismissal of Crews’ PRA suit, squarely rejected both the finding that the case was frivolous and the resulting order to pay the district’s legal fees.
The Court emphasized that a fee award is a form of “punishment [that] should be used most sparingly to deter only the most egregious conduct.” Failing to prevail in a PRA lawsuit, by itself, is never enough to justify a fee award. The Court said a suit could be found “frivolous” only if filed in bad faith--for example, “to harass” an agency rather than to obtain information--or if the suit’s legal basis is so implausible that “any reasonable attorney would agree” it is “totally without merit.”
Under the appeals court’s interpretation of the PRA, a plaintiff and her lawyer, when deciding to sue to gain access to records, don’t have to be confident that they will prevail. Even if they expect to lose, they can file a suit without fearing a crushing penalty in the form of an award of legal fees.
The court said: “Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win.”
FAC became involved in Crews’ defense after he was ordered to pay the district’s legal fees. FAC helped Crews in lining up legal representation--his attorney for the appeal was Karl Olson (of Ram, Olson, Cereghino & Kopczynski in San Francisco). Also for the appeal, FAC took the lead in organizing amicus brief support for Crews. Two amicus briefs were filed, one brief on behalf of media companies (prepared by Duffy Carolan and her colleagues at Davis Wright Tremaine) and another on behalf of pro-access government officials (prepared by Terry Francke of Californians Aware).
“For us, Tim’s case was absolutely make or break,” said Scheer. “The only means of enforcing the PRA is through civil suits that challenge agencies’ withholding of requested records,” he said. “If Tim’s penalty had been affirmed, that would have been the end of PRA enforcement.”
The cost of Crews’ representation was substantially underwritten by FAC’s Rebele Legal Fund, a special fund for open-government litigation named for FAC Board member Roland (“Reb”) Rebele, the founding (and biggest) contributor to the fund. (Other major contributions were made by Raymond Pryke, Susan McClatchy and Allen McCombs, among others.)
The Rebele Legal Fund provides funding support for important open-government and first amendment cases in which, for a variety of reasons, pro bono (i.e., free) legal representation may not be available. Normally the fund is for cases in which FAC, by action of its Board of Directors, has decided to participate as a party.
Judge Byrd dismisses GCBE actions v. Mirror
By Tim Crews
Sacramento Valley Mirror
March 3, 2007
Willows—A decidedly grumpy Superior Court Judge Don Byrd yesterday dismissed the counter actions against this newspaper. In the complex aftermath of the Sacramento lawsuit against the Glenn County Office of Education, the Glenn County Board of Education refused to join in a settlement, a victory for the newspaper — and for access to public information.
The board, a somnambulating beast awakened when Arturo Barrera took office as the new Glenn County Schools Superintendent, tried to drag to unresolved matters. They mumbled about “enforcing a temporary restraining order” when none was issued. (One of the several judges involved, Judge Golden said that GCOE attorneys needed to describe the behavior they wanted prevented. And that would all boil down to prior restraint.) The board seemed to want the MIRROR punished for revealing embarrassing things about GCOE, misspending, destruction of records and the like.
In the end Judge Byrd told the new GCOE attorneys that if GCOE wanted an injunction, they’d have to file it. And that way lies a great peril: Prior restraint.
The board seemed crestfallen.
MIRROR attorney Paul Boylan observes, "I have been working with the California Public Records Act for years advising public agencies on how to respond to requests for public records. When I agreed to represent the MIRROR, I really believed that I could negotiate an agreement where the MIRROR received the information it asked for and the GCOE privacy and confidentiality interests could be met. That is the way 99.9 percent of public records disputes are resolved. But not this one. After six months of the nastiest litigation I have ever been part of, I still don't understand why the GCOE fought so hard to keep these records secret. Why pay four different law firms so much money to keep so little secret? It just doesn't make any sense.
"This should have been an uncomplicated, straight forward court proceeding. The court was going to decide a very simple question:
Did the GCOE reasons for keeping documents secret outweigh the public's interest in that same information and the public's right to know? If yes, then the GCOE would have won. If no, then the MIRROR would have won. Simple. But the case got complicated when the GCOE attorneys — the ones hired to handle all of the MIRROR's requests — gave the MIRROR huge amounts of student and personnel information that the MIRROR didn't ask for.
“How on earth did such an incredible mistake happen? These were the experts hired to stop exactly the sort of thing that they ended up doing. It makes no sense. But then the case got even more complicated when the GCOE tried to get that information back — as if that was even possible — and wanted the court to order the MIRROR not to report on the information the GCOE attorneys gave the MIRROR.
“They knew or should have known that the MIRROR would not cooperate with any attempt to compromise its First Amendment rights to get the news and report the news," Mr. Boylan points out. Last year, then-Superintendent Joni Samples appointed a Sacramento attorney as a public records chief, and an expensive one at that. Mark Ellis released a disc to the MIRROR that continued seven years with of special education e-mails.
The e-mails were supposed to have been swept clean of confidential information. They weren’t. We later learned that the attorneys couldn’t f figure out how to open them. So they were tossed in a box with spending records.
And even later GCOE lawyers were supposed to have gone back and produced “clean” versions for us.
They never did.
The MIRROR reported that instead of protecting confidential information, the lawyer had negligently released it.
And then we did a story on the failure of special education management to report suspected child abuse, a story with fictionalized names and the special education children protected, Mr. Ellis sought to have us punished. For his error.
We had earlier turned over the discs, in a stipulated agreement we entered into most reluctantly. We did not agree to turn over our hard drives.
Friday, Judge Byrd scolded both sides and complained about the complex litigation but congratulated both sides for an agreement. With Mr. Ellis appearing by telephone, Judge Byrd reviewed matters, noted that Mr. Ellis had filed for a TRO and “I denied that request.” He asked what GCBE wanted and Donald Anthony Velez Jr ., of Miller Brown & Dannis suggested that the information be eliminated from the MIRROR’s computers, perhaps by the appointment of a “tech savvy” referee.
Judge Byrd waved that off, grumbled a bit more and said he was returning the cart load of records and discs to GCOE.
The Mirror obtained the information legally. We retain it.
Mr. Boylan notes, "We tried to end this nonsense - this huge waste of time and money. The MIRROR offered to settle many times. It didn't do any good. But then Superintendent Barrera fired his attorneys and negotiated an agreement that gave the MIRROR the records the MIRROR asked for in exchange for dismissing the Brown Act and the public records claims against the GCOE and the Board. We thought it was over. The issue of those confidential records - the ones the GCOE's attorney's gave to the MIRROR - was still out there. And no one seemed to know what to do about it.
"Judge Byrd solved that problem. He is an excellent judge. He did for the parties what the parties could not do for themselves — he ended the case by dismissing the actions against the MIRROR. I am grateful."
See previous post on this story HERE.
Victory for publisher Tim Crews and CPRA in Appeals Court decision
First Amendment Coalition
July 19, 2013
Tim Crews, Editor & Publisher Willows Valley Mirror
A state Court of Appeal has ruled that small-town California newspaper publisher Tim Crews does not have to pay legal fees to a school board he sued over his public records request. The unanimous decision (read the Court of Appeal's decision) represents a crucial victory for government transparency and a welcome success for the First Amendment Coalition, which was instrumental in organizing and underwriting Crews’ successful defense.
“The appeals court’s decision makes clear that, in deciding whether to go to court to contest an agency’s denial of your request for public records, you will not have to fear a crushing penalty,” said Peter Scheer, FAC’s executive director. “If the court had decided differently, no journalist or ordinary citizen would ever again file suit to enforce the PRA, for fear of being bankrupted by a court order to pay a penalty of tens of thousands of dollars.”
Scheer added: “That would have been a disaster, not just for Tim Crews of course, but for government transparency in general.”
The case grows out of a public records request filed by Crews, publisher of the Sacramento Valley Mirror in Glenn County, an agricultural community in Northern California. The request sought emails of the superintendent for the Willows Unified School District. Crews was investigating whether the district was using school resources to influence a political campaign (a line of inquiry that ultimately did not pan out).
The school district began delivering copies of the emails the day after Crews filed suit. It also withheld several thousand emails on various grounds. A Superior Court judge ruled in the district’s favor after reviewing the withheld emails. The court not only dismissed Crews’ PRA suit, but then took the highly unusual step of ruling that Crews’ case was frivolous and on that basis ordering him to pay the district’s legal fees--an amount that was ultimately set at $56,000.
The Appeals Court, while agreeing with the dismissal of Crews’ PRA suit, squarely rejected both the finding that the case was frivolous and the resulting order to pay the district’s legal fees.
The Court emphasized that a fee award is a form of “punishment [that] should be used most sparingly to deter only the most egregious conduct.” Failing to prevail in a PRA lawsuit, by itself, is never enough to justify a fee award. The Court said a suit could be found “frivolous” only if filed in bad faith--for example, “to harass” an agency rather than to obtain information--or if the suit’s legal basis is so implausible that “any reasonable attorney would agree” it is “totally without merit.”
Under the appeals court’s interpretation of the PRA, a plaintiff and her lawyer, when deciding to sue to gain access to records, don’t have to be confident that they will prevail. Even if they expect to lose, they can file a suit without fearing a crushing penalty in the form of an award of legal fees.
The court said: “Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win.”
FAC became involved in Crews’ defense after he was ordered to pay the district’s legal fees. FAC helped Crews in lining up legal representation--his attorney for the appeal was Karl Olson (of Ram, Olson, Cereghino & Kopczynski in San Francisco). Also for the appeal, FAC took the lead in organizing amicus brief support for Crews. Two amicus briefs were filed, one brief on behalf of media companies (prepared by Duffy Carolan and her colleagues at Davis Wright Tremaine) and another on behalf of pro-access government officials (prepared by Terry Francke of Californians Aware).
“For us, Tim’s case was absolutely make or break,” said Scheer. “The only means of enforcing the PRA is through civil suits that challenge agencies’ withholding of requested records,” he said. “If Tim’s penalty had been affirmed, that would have been the end of PRA enforcement.”
The cost of Crews’ representation was substantially underwritten by FAC’s Rebele Legal Fund, a special fund for open-government litigation named for FAC Board member Roland (“Reb”) Rebele, the founding (and biggest) contributor to the fund. (Other major contributions were made by Raymond Pryke, Susan McClatchy and Allen McCombs, among others.)
The Rebele Legal Fund provides funding support for important open-government and first amendment cases in which, for a variety of reasons, pro bono (i.e., free) legal representation may not be available. Normally the fund is for cases in which FAC, by action of its Board of Directors, has decided to participate as a party.
Judge Byrd dismisses GCBE actions v. Mirror
By Tim Crews
Sacramento Valley Mirror
March 3, 2007
Willows—A decidedly grumpy Superior Court Judge Don Byrd yesterday dismissed the counter actions against this newspaper. In the complex aftermath of the Sacramento lawsuit against the Glenn County Office of Education, the Glenn County Board of Education refused to join in a settlement, a victory for the newspaper — and for access to public information.
The board, a somnambulating beast awakened when Arturo Barrera took office as the new Glenn County Schools Superintendent, tried to drag to unresolved matters. They mumbled about “enforcing a temporary restraining order” when none was issued. (One of the several judges involved, Judge Golden said that GCOE attorneys needed to describe the behavior they wanted prevented. And that would all boil down to prior restraint.) The board seemed to want the MIRROR punished for revealing embarrassing things about GCOE, misspending, destruction of records and the like.
In the end Judge Byrd told the new GCOE attorneys that if GCOE wanted an injunction, they’d have to file it. And that way lies a great peril: Prior restraint.
The board seemed crestfallen.
MIRROR attorney Paul Boylan observes, "I have been working with the California Public Records Act for years advising public agencies on how to respond to requests for public records. When I agreed to represent the MIRROR, I really believed that I could negotiate an agreement where the MIRROR received the information it asked for and the GCOE privacy and confidentiality interests could be met. That is the way 99.9 percent of public records disputes are resolved. But not this one. After six months of the nastiest litigation I have ever been part of, I still don't understand why the GCOE fought so hard to keep these records secret. Why pay four different law firms so much money to keep so little secret? It just doesn't make any sense.
"This should have been an uncomplicated, straight forward court proceeding. The court was going to decide a very simple question:
Did the GCOE reasons for keeping documents secret outweigh the public's interest in that same information and the public's right to know? If yes, then the GCOE would have won. If no, then the MIRROR would have won. Simple. But the case got complicated when the GCOE attorneys — the ones hired to handle all of the MIRROR's requests — gave the MIRROR huge amounts of student and personnel information that the MIRROR didn't ask for.
“How on earth did such an incredible mistake happen? These were the experts hired to stop exactly the sort of thing that they ended up doing. It makes no sense. But then the case got even more complicated when the GCOE tried to get that information back — as if that was even possible — and wanted the court to order the MIRROR not to report on the information the GCOE attorneys gave the MIRROR.
“They knew or should have known that the MIRROR would not cooperate with any attempt to compromise its First Amendment rights to get the news and report the news," Mr. Boylan points out. Last year, then-Superintendent Joni Samples appointed a Sacramento attorney as a public records chief, and an expensive one at that. Mark Ellis released a disc to the MIRROR that continued seven years with of special education e-mails.
The e-mails were supposed to have been swept clean of confidential information. They weren’t. We later learned that the attorneys couldn’t f figure out how to open them. So they were tossed in a box with spending records.
And even later GCOE lawyers were supposed to have gone back and produced “clean” versions for us.
They never did.
The MIRROR reported that instead of protecting confidential information, the lawyer had negligently released it.
And then we did a story on the failure of special education management to report suspected child abuse, a story with fictionalized names and the special education children protected, Mr. Ellis sought to have us punished. For his error.
We had earlier turned over the discs, in a stipulated agreement we entered into most reluctantly. We did not agree to turn over our hard drives.
Friday, Judge Byrd scolded both sides and complained about the complex litigation but congratulated both sides for an agreement. With Mr. Ellis appearing by telephone, Judge Byrd reviewed matters, noted that Mr. Ellis had filed for a TRO and “I denied that request.” He asked what GCBE wanted and Donald Anthony Velez Jr ., of Miller Brown & Dannis suggested that the information be eliminated from the MIRROR’s computers, perhaps by the appointment of a “tech savvy” referee.
Judge Byrd waved that off, grumbled a bit more and said he was returning the cart load of records and discs to GCOE.
The Mirror obtained the information legally. We retain it.
Mr. Boylan notes, "We tried to end this nonsense - this huge waste of time and money. The MIRROR offered to settle many times. It didn't do any good. But then Superintendent Barrera fired his attorneys and negotiated an agreement that gave the MIRROR the records the MIRROR asked for in exchange for dismissing the Brown Act and the public records claims against the GCOE and the Board. We thought it was over. The issue of those confidential records - the ones the GCOE's attorney's gave to the MIRROR - was still out there. And no one seemed to know what to do about it.
"Judge Byrd solved that problem. He is an excellent judge. He did for the parties what the parties could not do for themselves — he ended the case by dismissing the actions against the MIRROR. I am grateful."
Wednesday, July 10, 2013
How are schools owned by the public able to keep their actions and records secret? UConn and Wesbster Bank demonstrate one strategy
How are schools owned by the public able to keep their actions and records secret?
First, hire contractors to do jobs that should be done by school districts so the resulting records will not be public. School attorney Dan Shinoff advised this tactic for school investigations on page 4 of his "Bully Booklet". Stutz law firm is a private firm that contracts with school districts.
Stutz Artiano Shinoff & Holtz clients in San Ysidro made news with a remarkably efficient method of hiding school district records from the public and the courts: shredding and burning them.
One of the "investigations" done by Dan Shinoff for Chula Vista Elementary School District resulted in a set of 87 documents, half of which have been kept secret. When Mr. Shinoff failed to produce the documents for his own lawsuit for defamation against this blogger, Judge Judith Hayes allowed him to get away with it.
UConn recently proved the efficacy of the hiring-private-contractors method:
UConn-Webster Bank Sponsorship Deal Will Remain Secret
by Jacqueline Wattles
CT News Junkie
Jul 9, 2013
After an eight-month battle, The Associated Press dropped its Freedom of Information request for the contract detailing the University of Connecticut’s new relationship with Webster Bank.
Despite attempts to the contrary, the complaint was dropped “with prejudice,” which means it’s unlikely the contract will ever see the light of day unless the legislature changes the law.
The AP and its attorney attempted to drop the case “without prejudice” — which would have left the case open for future appeals — after an initial hearing revealed the case was “far more factually complex than orginially anticipated.”
But the AP’s request wasn’t granted and on June 12 the Freedom of Information Commission dropped the case “with prejudice,” which closed the case indefinitely.
With the case in limbo, the financial terms of Webster’s relationship with UConn will remain secret, including any information detailing the benefits Webster is receiving from the deal.
Webster Bank signage and an ATM already are visible on campus, and the company’s logo is being included in sports posters and advertisements. The deal replaces a previous contract UConn had with People’s Bank.
However, the Webster contract is unique in that it was between Webster and IMG College, a company UConn contracted with in 2008 to take over the school’s sports marketing. This means the document lays out an agreement between the two private companies, even though it was done on UConn’s behalf. IMG College pays UConn more than $8 million a year to handle its sports marketing and promotion and up to $15 million in royalties. Click here and here to read that contract.
Webster has since announced it is now the “Official Bank of UConn,” and plans to open a branch on campus.
A press release from the university announced that its relationship with Webster “spans all UConn constituencies including more than 200,000 alumni, 28,000 students, and all sports.”
Pat Eaton-Robb, an Associated Press reporter, filed the complaint with the Freedom of Information Commission after UConn failed to provide him with the document when he requested it back in August 2012.
According to an Oct. 17, 2012, letter written to Eaton-Robb by Rachel Krinsky Rudnick, assistant director of compliance and privacy at UConn, the university withheld the contract because the signees were private entities, and she denied that the school retained a final copy of the contract.
“In honor of our business partners who oppose the document’s release . . . because it contains proprietary information, UConn is taking the position, as is our right under the Connecticut Freedom of Information Act, that it is inappropriate for us to release the document at this time,” the letter reads.
A hearing was held by FOIC Commissioner Matthew Streeter on March 5, 2013, where Eaton-Robb represented the AP, Assistant Attorney General Holly Bray represented UConn, and Steven D. Ecker — an attorney of Cowdery, Ecker & Murphy, LLC — represented Webster and IMG as “intervening” parties. A final decision was set to be considered June 12, 2013.
In the withdrawal letter, AP attorney Karen Kaiser said the organization intended “to serve new, and considerably broader, FOI requests” and sought to drop the current claim because in “light of unforeseen developments, we believe that the factual record created at the hearing on March 5, 2013, does not provide a sufficient basis for the FOIC to make an informed decision in this appeal.”
Connecticut’s FOI laws require the release of “any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency,” unless it is in the best interest of the public not to release the information.
Mike Enright, the university’s athletic department spokesman, said the department receives FOI requests daily and most of them are fulfilled immediately. However, the department decided to deny the request because it “saw it as being in the best interest of the University,” according to Enright.
Asked why it was in the best interest of the university, Enright refused to comment for this article.
Ecker, the attorney for IMG and Webster, concluded in February that the public interest “clearly favors nondisclosure” because disclosing information regarding the agreement between IMG and Webster would “negatively affect UConn’s ability to generate maximum revenue” from corporate sponsorships.
Ecker argued that if the university is unable to ensure confidentiality to its sponsors, prospective sponsors would be “sorely tempted” to contract with private universities instead.
Ecker also argued that the document detailed “trade secrets” of the university, as well as the private companies, which are exempt from disclosure under state FOI law. Ecker’s argument is backed by a 2011 state Supreme Court ruling, which ruled against former state Rep. Jonathan Pelto’s argument that public institutions cannot retain “trade secrets.”
Because UConn is not a signee, IMG College must have been performing a “governmental function” in order to subject the contract to disclosure under FOI law.
The statutory definition of a governmental function is “the administration or management of a program of a public agency, which program has been authorized by law.”
According to a post-hearing brief filed by Ecker on April 19, 2013, the defendants argued that IMG College does not perform a “governmental function” because sports marketing is not a task that is either authorized by law or required of the government.
A bill proposed in February 2013 by state Sen. Martin Looney, S.B. 204, would have required the release of the document, but it never made it to the floor.
The bill would have amended the state’s FOI law to “require that any contract relating to a public institution of higher education becoming a marketing partner with an entity that is a party to such contract, whether or not such institution of higher education is a party to such contract, be subject to disclosure.”
Looney said he proposed the bill because he feared the contract would set a dangerous precedent, and the school would begin using private entities to contract on its behalf in areas beyond athletic marketing.
But, according to Looney, shortly after the bill was filed, university officials met with him and assured him they did not intend to use the practice in any other areas, so he backed off.
Asked if he thought the current deal UConn has with Webster Bank went beyond an athletic marketing deal, Looney said it was a concern.
“I’ll be watching,” he said in a phone interview last month. “It may be something we need to look into next session.”
FOIC Executive Director Colleen Murphy issued a statement in support of the bill, saying it “would close an unfortunate loophole” that shields such documents from public view.
“Currently, nothing requires that the terms of these contracts be disclosed to the public,” Murphy’s statement reads. “Although the contracts directly impact a public organization and were made on the public’s behalf, they are beyond the reach of the FOI Act.”
Ecker and Bray both pointed to Murphy’s statement as evidence that legislative action would be required to force the document’s release.
Kaiser, the AP’s attorney, argued that “based on my review of the available facts, it certainly appears that the University of Connecticut . . . has effectively outsourced an important government function to IMG.”
“The public has a legitimate interest in how IMG is performing that function for one of the leading public universities in the nation,” Kaiser’s April 19, 2013, letter reads.
But Kaiser’s involvement received pushback from the defense attorneys because Kaiser was a latecomer to the case.
“When our reporter filed this appeal, the case seemed straightforward and uncomplicated (which is why the reporter appeared personally before the FOIC),” Kaiser explained in a letter to the FOIC.
Kaiser’s absence from the case before the March 5 meeting was a fact Bray and Ecker pointed out in their successful effort to argue the AP’s withdrawal attempt was an unfair last-ditch effort to keep the case from being closed.
Ecker wrote to the FOI Commissioner on April 22, 2013, to oppose Kaiser’s involvement, insisting she was not permitted to practice law in Connecticut.
“The AP surely could have hired Connecticut counsel to appear on its behalf at the hearing on March 5, 2013 — as IMG and Webster Bank did. It is far too late in the day for the AP to attempt to ‘appear’ now and ask for a do-over because it does not like the record the reporter created,” Ecker’s letter reads.
The AP hired Connecticut counsel shortly after Kaiser filed the initial withdrawal letter. Initially, it was Daniel J. Klau of McElroy, Deutsch, Mulvaney & Carpenter, LLP. Klau wrote to the FOI Commission reiterating AP’s decision to withdraw on April 23. But Klau soon learned he couldn’t represent the AP because his firm had a conflict.
“My firm has a conflict, as it represents Webster Bank,” Klau’s letter reads. “Accordingly, it was improper for me to send the letter and I hereby withdraw both my appearance and the letter.”
On April 25, 2013, Cameron Stracher of Levine, Sullivan, Koch, & Schulz, LLP, sent another withdrawal letter on the AP’s behalf. In the letter, Stracher insists the AP sent the letter late in the process because “of the time it took to assess the issues and reach a decision on the proper course of action.”
Ecker and Bray both argued the attorneys representing IMG, Webster, and UConn “have done a great deal of work, at no small expense, and they are entitled to a ruling on the merits or a termination of this case with prejudice.”
The FOIC agreed and dropped the case with prejudice.
One of the "investigations" done by Dan Shinoff for Chula Vista Elementary School District resulted in a set of 87 documents, half of which have been kept secret. When Mr. Shinoff failed to produce the documents for his own lawsuit for defamation against this blogger, Judge Judith Hayes allowed him to get away with it.
UConn recently proved the efficacy of the hiring-private-contractors method:
UConn-Webster Bank Sponsorship Deal Will Remain Secret
by Jacqueline Wattles
CT News Junkie
Jul 9, 2013
After an eight-month battle, The Associated Press dropped its Freedom of Information request for the contract detailing the University of Connecticut’s new relationship with Webster Bank.
Despite attempts to the contrary, the complaint was dropped “with prejudice,” which means it’s unlikely the contract will ever see the light of day unless the legislature changes the law.
The AP and its attorney attempted to drop the case “without prejudice” — which would have left the case open for future appeals — after an initial hearing revealed the case was “far more factually complex than orginially anticipated.”
But the AP’s request wasn’t granted and on June 12 the Freedom of Information Commission dropped the case “with prejudice,” which closed the case indefinitely.
With the case in limbo, the financial terms of Webster’s relationship with UConn will remain secret, including any information detailing the benefits Webster is receiving from the deal.
Webster Bank signage and an ATM already are visible on campus, and the company’s logo is being included in sports posters and advertisements. The deal replaces a previous contract UConn had with People’s Bank.
However, the Webster contract is unique in that it was between Webster and IMG College, a company UConn contracted with in 2008 to take over the school’s sports marketing. This means the document lays out an agreement between the two private companies, even though it was done on UConn’s behalf. IMG College pays UConn more than $8 million a year to handle its sports marketing and promotion and up to $15 million in royalties. Click here and here to read that contract.
Webster has since announced it is now the “Official Bank of UConn,” and plans to open a branch on campus.
A press release from the university announced that its relationship with Webster “spans all UConn constituencies including more than 200,000 alumni, 28,000 students, and all sports.”
Pat Eaton-Robb, an Associated Press reporter, filed the complaint with the Freedom of Information Commission after UConn failed to provide him with the document when he requested it back in August 2012.
According to an Oct. 17, 2012, letter written to Eaton-Robb by Rachel Krinsky Rudnick, assistant director of compliance and privacy at UConn, the university withheld the contract because the signees were private entities, and she denied that the school retained a final copy of the contract.
“In honor of our business partners who oppose the document’s release . . . because it contains proprietary information, UConn is taking the position, as is our right under the Connecticut Freedom of Information Act, that it is inappropriate for us to release the document at this time,” the letter reads.
A hearing was held by FOIC Commissioner Matthew Streeter on March 5, 2013, where Eaton-Robb represented the AP, Assistant Attorney General Holly Bray represented UConn, and Steven D. Ecker — an attorney of Cowdery, Ecker & Murphy, LLC — represented Webster and IMG as “intervening” parties. A final decision was set to be considered June 12, 2013.
In the withdrawal letter, AP attorney Karen Kaiser said the organization intended “to serve new, and considerably broader, FOI requests” and sought to drop the current claim because in “light of unforeseen developments, we believe that the factual record created at the hearing on March 5, 2013, does not provide a sufficient basis for the FOIC to make an informed decision in this appeal.”
Connecticut’s FOI laws require the release of “any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency,” unless it is in the best interest of the public not to release the information.
Mike Enright, the university’s athletic department spokesman, said the department receives FOI requests daily and most of them are fulfilled immediately. However, the department decided to deny the request because it “saw it as being in the best interest of the University,” according to Enright.
Asked why it was in the best interest of the university, Enright refused to comment for this article.
Ecker, the attorney for IMG and Webster, concluded in February that the public interest “clearly favors nondisclosure” because disclosing information regarding the agreement between IMG and Webster would “negatively affect UConn’s ability to generate maximum revenue” from corporate sponsorships.
Ecker argued that if the university is unable to ensure confidentiality to its sponsors, prospective sponsors would be “sorely tempted” to contract with private universities instead.
Ecker also argued that the document detailed “trade secrets” of the university, as well as the private companies, which are exempt from disclosure under state FOI law. Ecker’s argument is backed by a 2011 state Supreme Court ruling, which ruled against former state Rep. Jonathan Pelto’s argument that public institutions cannot retain “trade secrets.”
Because UConn is not a signee, IMG College must have been performing a “governmental function” in order to subject the contract to disclosure under FOI law.
The statutory definition of a governmental function is “the administration or management of a program of a public agency, which program has been authorized by law.”
According to a post-hearing brief filed by Ecker on April 19, 2013, the defendants argued that IMG College does not perform a “governmental function” because sports marketing is not a task that is either authorized by law or required of the government.
A bill proposed in February 2013 by state Sen. Martin Looney, S.B. 204, would have required the release of the document, but it never made it to the floor.
The bill would have amended the state’s FOI law to “require that any contract relating to a public institution of higher education becoming a marketing partner with an entity that is a party to such contract, whether or not such institution of higher education is a party to such contract, be subject to disclosure.”
Looney said he proposed the bill because he feared the contract would set a dangerous precedent, and the school would begin using private entities to contract on its behalf in areas beyond athletic marketing.
But, according to Looney, shortly after the bill was filed, university officials met with him and assured him they did not intend to use the practice in any other areas, so he backed off.
Asked if he thought the current deal UConn has with Webster Bank went beyond an athletic marketing deal, Looney said it was a concern.
“I’ll be watching,” he said in a phone interview last month. “It may be something we need to look into next session.”
FOIC Executive Director Colleen Murphy issued a statement in support of the bill, saying it “would close an unfortunate loophole” that shields such documents from public view.
“Currently, nothing requires that the terms of these contracts be disclosed to the public,” Murphy’s statement reads. “Although the contracts directly impact a public organization and were made on the public’s behalf, they are beyond the reach of the FOI Act.”
Ecker and Bray both pointed to Murphy’s statement as evidence that legislative action would be required to force the document’s release.
Kaiser, the AP’s attorney, argued that “based on my review of the available facts, it certainly appears that the University of Connecticut . . . has effectively outsourced an important government function to IMG.”
“The public has a legitimate interest in how IMG is performing that function for one of the leading public universities in the nation,” Kaiser’s April 19, 2013, letter reads.
But Kaiser’s involvement received pushback from the defense attorneys because Kaiser was a latecomer to the case.
“When our reporter filed this appeal, the case seemed straightforward and uncomplicated (which is why the reporter appeared personally before the FOIC),” Kaiser explained in a letter to the FOIC.
Kaiser’s absence from the case before the March 5 meeting was a fact Bray and Ecker pointed out in their successful effort to argue the AP’s withdrawal attempt was an unfair last-ditch effort to keep the case from being closed.
Ecker wrote to the FOI Commissioner on April 22, 2013, to oppose Kaiser’s involvement, insisting she was not permitted to practice law in Connecticut.
“The AP surely could have hired Connecticut counsel to appear on its behalf at the hearing on March 5, 2013 — as IMG and Webster Bank did. It is far too late in the day for the AP to attempt to ‘appear’ now and ask for a do-over because it does not like the record the reporter created,” Ecker’s letter reads.
The AP hired Connecticut counsel shortly after Kaiser filed the initial withdrawal letter. Initially, it was Daniel J. Klau of McElroy, Deutsch, Mulvaney & Carpenter, LLP. Klau wrote to the FOI Commission reiterating AP’s decision to withdraw on April 23. But Klau soon learned he couldn’t represent the AP because his firm had a conflict.
“My firm has a conflict, as it represents Webster Bank,” Klau’s letter reads. “Accordingly, it was improper for me to send the letter and I hereby withdraw both my appearance and the letter.”
On April 25, 2013, Cameron Stracher of Levine, Sullivan, Koch, & Schulz, LLP, sent another withdrawal letter on the AP’s behalf. In the letter, Stracher insists the AP sent the letter late in the process because “of the time it took to assess the issues and reach a decision on the proper course of action.”
Ecker and Bray both argued the attorneys representing IMG, Webster, and UConn “have done a great deal of work, at no small expense, and they are entitled to a ruling on the merits or a termination of this case with prejudice.”
The FOIC agreed and dropped the case with prejudice.
Friday, March 29, 2013
School districts can no longer conceal what they pay their attorneys to fight lawsuits
Kyla Doyle sent me the following article. She notes:
"What caught my attention was that it includes "ongoing litigation" so the school districts can no longer deny records act requests just because the case hasn't yet resolved. Ours is still out there--after the denial by the US Supreme Court they are fighting over fees owed to our attorney....while racking up more fees for themselves..."
Here is a snippet of oral arguments in Kyla's case between one of the Ninth Circuit Justices and Stutz Artiano Shinoff & Holtz attorney Jack Sleeth.
Kudos to writer Rex Dalton and Voice of Orange County for covering this story.
When I first glanced at the article below, I was surprised and delighted. I was going to applaud Will Carless of Voice of San Diego for finally writing about secrecy among school attorneys and their allies at San Diego County Office of Education. Then I saw that the story is from Voice of OC, not Voice of San Diego. VOSD continues to protect school attorneys since Emily Alpert left.
Supreme Court Rules Special Ed Litigation Costs Are Public
By REX DALTON
Voice of OC
March 11, 2013
Related: A 'Brotherhood' Fights Families Wanting Special Ed
Related: Questions Surround Attorneys' Actions in Speical Ed Case
The California Supreme Court has cleared the way for public disclosure of governmental legal costs in ongoing lawsuits where school districts, cities or other public agencies refuse to reveal the bills before litigation is complete.
In Orange County and other jurisdictions, governmental agencies have frequently declined to disclose the costs of ongoing litigation, contending such legal bills are exempt under the California Public Records Act.
But in its Feb. 20 ruling on a Los Angeles lawsuit, the court affirmed a published appellate decision in which judges decided that legal fees can be disclosed when a public records request is made during active litigation.
Terry Franke, an attorney for Californians Aware, an open-access organization in Sacramento, said, “This case properly ends an abuse too often employed to conceal from the public just how much of its money is being spent by lawyers.”
The court decision removes a ploy used by the Orange County Department of Education and a number of the county's 28 school districts to deny disclosure of litigation costs when fighting cases against families seeking special education for youths with disabilities under federal and state laws.
Last year, Voice of OC ran a series of articles showing how school districts were spending hundreds of thousands of dollars to fight families over services that sometimes cost only a few thousand dollars. Such legal battles also created enormous hardships for families and limited options for children with autism and other serious developmental disabilities.
For instance, the Orange Unified School District, working with county education department attorneys, refused last year to release the district’s legal costs after the district sued a family in federal court to prevent paying about $3,400 a year for a preschool for the family's autistic child. The youngster is known only as C.K. in court records.
Recently released Orange Unified records show the district’s legal costs to fight the family totaled at least $236,000. These costs were for an administrative hearing, where the family won service funding, and to sue the family in U.S. District Court in Santa Ana.
Orange Unified paid a Costa Mesa law firm headed by S. Daniel Harbottle about $83,000 of that total, according to invoices provided by the school district. And because the family of the child defeted the school district’s lawsuit, the federal judge ordered the district to pay their Long Beach attorney, Bruce Bothwell, his court-approved attorney fees of $153,000.
In another case involving an 18-year-old autistic youth in the Garden Grove Unified School District, the school district and county’s attorneys have refused to release the district’s costs in a contentious legal battle that has gone on since 2008.
The youth's guardian aunt has fought for services in five administrative hearings and filed several federal lawsuits against the district for declining to pay for or provide special education services. The family’s litigation costs are in excess of $350,000, they say.
The Garden Grove district's aggressive legal stance was designed to drive the boy out of the school district, alleged the aunt, Alexis Baquerizo. The school district has denied the charge in court.
A spokesman for the Garden Grove district declined comment on the legal ruling. He referred the inquiry to the county education department.
Lysa M. Saltzman, a county education department counsel, declined to address specific questions about the disclosure ruling, writing in an email that any new requests under the California Public Records Act for legal costs in the case will be evaluated based on the recent Supreme Court decision.
School district and county attorneys have argued that cost disclosures could compromise the school district’s legal position and should be treated like legal strategies, which remain exempt from disclosure during continuing litigation.
But last Nov. 16, the California Court of Appeal for the 2nd District ruled that legal fees in continuing cases were disclosable. It was this decision that the Supreme Court let stand while also affirming that the ruling should remain published, thereby serving as a statewide precedent.
“Government officials are not paying for litigation or other legal services out of their own pockets, so there’s no independent check on their spending, which can grow very large very quickly if taxpayers have no way of learning how the bills are piling up,” said CalAware’s Franke.
The decision arose from a civil lawsuit filed by a Bellflower couple in 1999 after they allegedly were improperly held and harassed by Los Angeles County sheriff’s deputies during a 1998 auto theft investigation.
In a recent interview, Donald W. Cook of Los Angeles, attorney for the couple, said the case easily could have been settled more than a decade ago but the Los Angeles county counsel’s office engages private law firms to litigate seemingly forever as a tactic to discourage plaintiffs.
The couple’s original claim for damages has bounced up and down the court system during the 13 years. Furious over delays, Cook engaged an attorney to sue Los Angeles County for legal costs, which he estimated at about $1 million.
Cook said that certain governmental agencies like Los Angeles County “don’t want the taxpayer to know they are wasting money. The strategy here is to hire a private firm, which milks the case for all it's worth and then bills the taxpayer.”
A spokesman for the Los Angeles County counsel’s office declined comment.
In Orange County, families, child advocates and family attorneys have contended that school district have employed similar tactics for years to avoid providing services required by the federal Individuals with Disabilities Education Act.
A handful of law firms represents the county’s school districts, who look to them as buffers against substantial costs that some special education cases can require. District superintendents claim they must take a hard line to control costs.
The stakes are so high over the issue that Cook suspects governmental agencies may seek legislation in Sacramento in an attempt to amend the state Public Records Act to again block legal fee disclosures.
Expressing concern about the impact of the appellate decision, the League of California Cities filed a letter Jan. 24 urging the state Supreme Court to accept and hear arguments on Cook's case. The league, a Sacramento-based organization of 469 municipalities, fears being swamped by requests for disclosures.
A league attorney, Koreen Kelleher, said she was unaware of any such legislation effort.
Rex Dalton is a San Diego-based journalist who has worked for the San Diego Union-Tribune and the journal Nature. You can reach him directly at rexdalton@aol.com.
"What caught my attention was that it includes "ongoing litigation" so the school districts can no longer deny records act requests just because the case hasn't yet resolved. Ours is still out there--after the denial by the US Supreme Court they are fighting over fees owed to our attorney....while racking up more fees for themselves..."
Here is a snippet of oral arguments in Kyla's case between one of the Ninth Circuit Justices and Stutz Artiano Shinoff & Holtz attorney Jack Sleeth.
Kudos to writer Rex Dalton and Voice of Orange County for covering this story.
When I first glanced at the article below, I was surprised and delighted. I was going to applaud Will Carless of Voice of San Diego for finally writing about secrecy among school attorneys and their allies at San Diego County Office of Education. Then I saw that the story is from Voice of OC, not Voice of San Diego. VOSD continues to protect school attorneys since Emily Alpert left.
Supreme Court Rules Special Ed Litigation Costs Are Public
By REX DALTON
Voice of OC
March 11, 2013
Related: A 'Brotherhood' Fights Families Wanting Special Ed
Related: Questions Surround Attorneys' Actions in Speical Ed Case
The California Supreme Court has cleared the way for public disclosure of governmental legal costs in ongoing lawsuits where school districts, cities or other public agencies refuse to reveal the bills before litigation is complete.
In Orange County and other jurisdictions, governmental agencies have frequently declined to disclose the costs of ongoing litigation, contending such legal bills are exempt under the California Public Records Act.
But in its Feb. 20 ruling on a Los Angeles lawsuit, the court affirmed a published appellate decision in which judges decided that legal fees can be disclosed when a public records request is made during active litigation.
Terry Franke, an attorney for Californians Aware, an open-access organization in Sacramento, said, “This case properly ends an abuse too often employed to conceal from the public just how much of its money is being spent by lawyers.”
The court decision removes a ploy used by the Orange County Department of Education and a number of the county's 28 school districts to deny disclosure of litigation costs when fighting cases against families seeking special education for youths with disabilities under federal and state laws.
Last year, Voice of OC ran a series of articles showing how school districts were spending hundreds of thousands of dollars to fight families over services that sometimes cost only a few thousand dollars. Such legal battles also created enormous hardships for families and limited options for children with autism and other serious developmental disabilities.
For instance, the Orange Unified School District, working with county education department attorneys, refused last year to release the district’s legal costs after the district sued a family in federal court to prevent paying about $3,400 a year for a preschool for the family's autistic child. The youngster is known only as C.K. in court records.
Recently released Orange Unified records show the district’s legal costs to fight the family totaled at least $236,000. These costs were for an administrative hearing, where the family won service funding, and to sue the family in U.S. District Court in Santa Ana.
Orange Unified paid a Costa Mesa law firm headed by S. Daniel Harbottle about $83,000 of that total, according to invoices provided by the school district. And because the family of the child defeted the school district’s lawsuit, the federal judge ordered the district to pay their Long Beach attorney, Bruce Bothwell, his court-approved attorney fees of $153,000.
In another case involving an 18-year-old autistic youth in the Garden Grove Unified School District, the school district and county’s attorneys have refused to release the district’s costs in a contentious legal battle that has gone on since 2008.
The youth's guardian aunt has fought for services in five administrative hearings and filed several federal lawsuits against the district for declining to pay for or provide special education services. The family’s litigation costs are in excess of $350,000, they say.
The Garden Grove district's aggressive legal stance was designed to drive the boy out of the school district, alleged the aunt, Alexis Baquerizo. The school district has denied the charge in court.
A spokesman for the Garden Grove district declined comment on the legal ruling. He referred the inquiry to the county education department.
Lysa M. Saltzman, a county education department counsel, declined to address specific questions about the disclosure ruling, writing in an email that any new requests under the California Public Records Act for legal costs in the case will be evaluated based on the recent Supreme Court decision.
School district and county attorneys have argued that cost disclosures could compromise the school district’s legal position and should be treated like legal strategies, which remain exempt from disclosure during continuing litigation.
But last Nov. 16, the California Court of Appeal for the 2nd District ruled that legal fees in continuing cases were disclosable. It was this decision that the Supreme Court let stand while also affirming that the ruling should remain published, thereby serving as a statewide precedent.
“Government officials are not paying for litigation or other legal services out of their own pockets, so there’s no independent check on their spending, which can grow very large very quickly if taxpayers have no way of learning how the bills are piling up,” said CalAware’s Franke.
The decision arose from a civil lawsuit filed by a Bellflower couple in 1999 after they allegedly were improperly held and harassed by Los Angeles County sheriff’s deputies during a 1998 auto theft investigation.
In a recent interview, Donald W. Cook of Los Angeles, attorney for the couple, said the case easily could have been settled more than a decade ago but the Los Angeles county counsel’s office engages private law firms to litigate seemingly forever as a tactic to discourage plaintiffs.
The couple’s original claim for damages has bounced up and down the court system during the 13 years. Furious over delays, Cook engaged an attorney to sue Los Angeles County for legal costs, which he estimated at about $1 million.
Cook said that certain governmental agencies like Los Angeles County “don’t want the taxpayer to know they are wasting money. The strategy here is to hire a private firm, which milks the case for all it's worth and then bills the taxpayer.”
A spokesman for the Los Angeles County counsel’s office declined comment.
In Orange County, families, child advocates and family attorneys have contended that school district have employed similar tactics for years to avoid providing services required by the federal Individuals with Disabilities Education Act.
A handful of law firms represents the county’s school districts, who look to them as buffers against substantial costs that some special education cases can require. District superintendents claim they must take a hard line to control costs.
The stakes are so high over the issue that Cook suspects governmental agencies may seek legislation in Sacramento in an attempt to amend the state Public Records Act to again block legal fee disclosures.
Expressing concern about the impact of the appellate decision, the League of California Cities filed a letter Jan. 24 urging the state Supreme Court to accept and hear arguments on Cook's case. The league, a Sacramento-based organization of 469 municipalities, fears being swamped by requests for disclosures.
A league attorney, Koreen Kelleher, said she was unaware of any such legislation effort.
Rex Dalton is a San Diego-based journalist who has worked for the San Diego Union-Tribune and the journal Nature. You can reach him directly at rexdalton@aol.com.
Saturday, January 19, 2013
Cal State may be mixing public and private funds in nonprofit foundations
Here is a reminder from the past that citizens must be vigilant regarding the finances of even the most apparently benign organizations.
Cal State may be mixing public and private funds in nonprofit foundations
A faculty group says university officials have failed to correct the problems despite warnings.
By Carla Rivera
Los Angeles Times
August 25, 2010
A faculty group said it has found evidence that California State University officials are improperly depositing public funds into the accounts of nonprofit campus foundations and have failed to correct the problem despite warnings from auditors.
The California Faculty Assn. said its findings come from publicly available minutes of meetings of the university's chief administrators and business officers, and raise concerns about possible fiscal mismanagement at more than 90 foundations and auxiliaries associated with the university's 23 campuses.
The documents are included in a report by the group that is scheduled to be released Wednesday.
The nonprofit organizations are separate enterprises that raise private funds for scholarships and other education activities and frequently run campus food services, bookstores and student housing.
Mingling taxpayer dollars and private funds in foundation accounts may be illegal because the organizations are exempt from the state's open records laws, the faculty group says.
"They are admitting to comingling money, taxpayer money and private donations when for all this time, they have stood firm that this is not going on," said Lillian Taiz, president of the faculty organization. "There needs to be some probing and digging into what is going on at these campuses."
The minutes of the discussions by Cal State executives, which are on the university's website, do not cite specific foundations or instances of mismanagement. But they appear to indicate concern about the handling of foundation funds.
On May 18, according to the minutes, Cal State Chief Financial Officer Benjamin Quillian stated: "There continue to be findings from the internal auditors that some campuses have monies held inappropriately by auxiliary organizations....Developing a policy related to this has been more difficult than anticipated."
In an interview, Quillian said he became aware of the findings by the university's auditors about six months ago and has been working with campus groups to insure that funds are transferred to the correct accounts. He said he plans to issue new guidelines in coming weeks.
But he said that the practice was not widespread, did not involve general fund money or student fees and was inadvertent. "To the best of my knowledge, none of the campuses are intentionally sheltering state funds," he said.
Quillian said that Cal State Chancellor Charles Reed has already initiated an examination of campus foundations and auxiliaries to ensure they are being used properly.
This spring, California Atty. Gen. Jerry Brown launched a review of Cal State foundations, including one at Cal State Stanislaus, which came under scrutiny after it refused to disclose documents about a June fundraising appearance by former Alaska Gov. Sarah Palin. Brown recently concluded that the Stanislaus foundation violated no state laws in managing its funds but found that its accounting procedures were inadequate.
State Sen. Leland Yee (D- San Francisco), who also sought the Palin documents, is sponsoring legislation that would require university foundations and auxiliaries to adhere to state open records laws. The bill has been passed by the Legislature and awaits the governor's signature.
Responding to the report by the faculty association, Yee said he would call for an audit of Cal State finances.
"When you have lobbyists from CSU coming before a state Assembly committee saying that they aren't doing things that they are in fact doing, that's an affront to the Legislature," he said.
Cal State may be mixing public and private funds in nonprofit foundations
A faculty group says university officials have failed to correct the problems despite warnings.
By Carla Rivera
Los Angeles Times
August 25, 2010
A faculty group said it has found evidence that California State University officials are improperly depositing public funds into the accounts of nonprofit campus foundations and have failed to correct the problem despite warnings from auditors.
The California Faculty Assn. said its findings come from publicly available minutes of meetings of the university's chief administrators and business officers, and raise concerns about possible fiscal mismanagement at more than 90 foundations and auxiliaries associated with the university's 23 campuses.
The documents are included in a report by the group that is scheduled to be released Wednesday.
The nonprofit organizations are separate enterprises that raise private funds for scholarships and other education activities and frequently run campus food services, bookstores and student housing.
Mingling taxpayer dollars and private funds in foundation accounts may be illegal because the organizations are exempt from the state's open records laws, the faculty group says.
"They are admitting to comingling money, taxpayer money and private donations when for all this time, they have stood firm that this is not going on," said Lillian Taiz, president of the faculty organization. "There needs to be some probing and digging into what is going on at these campuses."
The minutes of the discussions by Cal State executives, which are on the university's website, do not cite specific foundations or instances of mismanagement. But they appear to indicate concern about the handling of foundation funds.
On May 18, according to the minutes, Cal State Chief Financial Officer Benjamin Quillian stated: "There continue to be findings from the internal auditors that some campuses have monies held inappropriately by auxiliary organizations....Developing a policy related to this has been more difficult than anticipated."
In an interview, Quillian said he became aware of the findings by the university's auditors about six months ago and has been working with campus groups to insure that funds are transferred to the correct accounts. He said he plans to issue new guidelines in coming weeks.
But he said that the practice was not widespread, did not involve general fund money or student fees and was inadvertent. "To the best of my knowledge, none of the campuses are intentionally sheltering state funds," he said.
Quillian said that Cal State Chancellor Charles Reed has already initiated an examination of campus foundations and auxiliaries to ensure they are being used properly.
This spring, California Atty. Gen. Jerry Brown launched a review of Cal State foundations, including one at Cal State Stanislaus, which came under scrutiny after it refused to disclose documents about a June fundraising appearance by former Alaska Gov. Sarah Palin. Brown recently concluded that the Stanislaus foundation violated no state laws in managing its funds but found that its accounting procedures were inadequate.
State Sen. Leland Yee (D- San Francisco), who also sought the Palin documents, is sponsoring legislation that would require university foundations and auxiliaries to adhere to state open records laws. The bill has been passed by the Legislature and awaits the governor's signature.
Responding to the report by the faculty association, Yee said he would call for an audit of Cal State finances.
"When you have lobbyists from CSU coming before a state Assembly committee saying that they aren't doing things that they are in fact doing, that's an affront to the Legislature," he said.
If publisher Tim Crews loses his public records case, we all lose as well
See update of this story HERE.
Newton: Fighting the good fight
If publisher Tim Crews loses his public records case, we all lose as well.
October 15, 2012
Jim Newton
LA Times
The ability of Californians to scrutinize their government may rest on the outcome of a little-known case unfolding in a tiny Northern California town.
It began routinely enough. Tim Crews, the pugnacious, 69-year-old editor and publisher of the Sacramento Valley Mirror, a twice-weekly newspaper that serves Glenn County, filed a request under the California Public Records Act for records held by the local school district. Specifically, Crews was looking for evidence that district officials might have spent public money to influence the outcome of a local election.
District officials did what public officials in California all-too-often do when confronted with a request they don't like. They stalled. At first, they refused to turn over anything. Then they turned over some of the records Crews had asked for, but in a format that made it impossible to search them. And when Crews asked for attachments referred to in some of the emails released in the request, the district refused to hand them over.
Crews is nothing if not dogged. He kept at it, finally persuading a judge to review thousands of the documents in chambers. The judge spent 45 minutes going through the material and then declined, without explanation, to release any more of it.
Up to that point, the case was fairly unremarkable, one of thousands of disputed but ultimately resolved Public Records Act requests that wind their way through public agencies and courts every year. But then the judge in Crews' case, Peter Twede, did something extraordinary: He concluded that Crews' request had been frivolous, and he ordered Crews to pay not only his own legal bills but those of the school district. For the privilege of obtaining documents that were his legal right to have, Crews was ordered to pay more than $100,000, an amount later reduced to $56,000.
If the judgment stands — Crews has appealed — it would have a devastating effect on the newspaper, which only has about 2,800 paid subscribers. "It would wipe us out," Crews told me last week.
It would do more than that. If upheld by the appellate courts, the judgment would radically alter the contours of the Public Records Act in California. Imagine if every time citizens asked for records under the act, they faced the possibility of having to bear not only their own legal expenses but also those that the agency might run up defending itself. Who could afford such risk?
The consequences of Crews' case are so far-reaching that a number of organizations have come to his defense, including the First Amendment Coalition (on whose board I serve without compensation). William T. Bagley, who wrote California's public records law while in the Assembly in the late 1960s, has also filed an amicus brief in support of the editor.
Crews is used to conflict. He went to jail for five days in 2000 for refusing to identify a source. It wasn't so bad, he recently recalled. "I watched a couple movies; wrote some long, long columns." Over the last five years he's filed more than a dozen cases seeking public records or claiming violations of the state's open meetings laws. It's easy to see why some officials are annoyed by him, but he doesn't scare easily.
Still, with the future of his newspaper at stake, Crews is taking the threat seriously. The paper has never missed a publication date in the 23 years he has been there, and it has served as an important watchdog of local government, in the best tradition of community newspapers.
All that is reason enough to be troubled by the action of the judge in the Crews case. But the potential damage to the public extends well beyond Glenn County and even beyond the Public Records Act itself.
If upheld, this ruling would fundamentally reorient the relationship between the people of California and those who represent them. It would require members of the public to put themselves at risk to learn about their own government. It would recast government agencies and elected officials as immune from public scrutiny rather than accountable through that scrutiny.
As the Public Records Act itself states: "The people of this state do not yield their sovereignty to the agencies which serve them." For that reason alone, Crews deserves to win and his paper to survive.
Jim Newton’s column appears Mondays. His latest book is "Eisenhower: The White House Years." Reach him at jim.newton@latimes.com or follow him on Twitter: @newton_jim.
Newton: Fighting the good fight
If publisher Tim Crews loses his public records case, we all lose as well.
October 15, 2012
Jim Newton
LA Times
The ability of Californians to scrutinize their government may rest on the outcome of a little-known case unfolding in a tiny Northern California town.
It began routinely enough. Tim Crews, the pugnacious, 69-year-old editor and publisher of the Sacramento Valley Mirror, a twice-weekly newspaper that serves Glenn County, filed a request under the California Public Records Act for records held by the local school district. Specifically, Crews was looking for evidence that district officials might have spent public money to influence the outcome of a local election.
District officials did what public officials in California all-too-often do when confronted with a request they don't like. They stalled. At first, they refused to turn over anything. Then they turned over some of the records Crews had asked for, but in a format that made it impossible to search them. And when Crews asked for attachments referred to in some of the emails released in the request, the district refused to hand them over.
Crews is nothing if not dogged. He kept at it, finally persuading a judge to review thousands of the documents in chambers. The judge spent 45 minutes going through the material and then declined, without explanation, to release any more of it.
Up to that point, the case was fairly unremarkable, one of thousands of disputed but ultimately resolved Public Records Act requests that wind their way through public agencies and courts every year. But then the judge in Crews' case, Peter Twede, did something extraordinary: He concluded that Crews' request had been frivolous, and he ordered Crews to pay not only his own legal bills but those of the school district. For the privilege of obtaining documents that were his legal right to have, Crews was ordered to pay more than $100,000, an amount later reduced to $56,000.
If the judgment stands — Crews has appealed — it would have a devastating effect on the newspaper, which only has about 2,800 paid subscribers. "It would wipe us out," Crews told me last week.
It would do more than that. If upheld by the appellate courts, the judgment would radically alter the contours of the Public Records Act in California. Imagine if every time citizens asked for records under the act, they faced the possibility of having to bear not only their own legal expenses but also those that the agency might run up defending itself. Who could afford such risk?
The consequences of Crews' case are so far-reaching that a number of organizations have come to his defense, including the First Amendment Coalition (on whose board I serve without compensation). William T. Bagley, who wrote California's public records law while in the Assembly in the late 1960s, has also filed an amicus brief in support of the editor.
Crews is used to conflict. He went to jail for five days in 2000 for refusing to identify a source. It wasn't so bad, he recently recalled. "I watched a couple movies; wrote some long, long columns." Over the last five years he's filed more than a dozen cases seeking public records or claiming violations of the state's open meetings laws. It's easy to see why some officials are annoyed by him, but he doesn't scare easily.
Still, with the future of his newspaper at stake, Crews is taking the threat seriously. The paper has never missed a publication date in the 23 years he has been there, and it has served as an important watchdog of local government, in the best tradition of community newspapers.
All that is reason enough to be troubled by the action of the judge in the Crews case. But the potential damage to the public extends well beyond Glenn County and even beyond the Public Records Act itself.
If upheld, this ruling would fundamentally reorient the relationship between the people of California and those who represent them. It would require members of the public to put themselves at risk to learn about their own government. It would recast government agencies and elected officials as immune from public scrutiny rather than accountable through that scrutiny.
As the Public Records Act itself states: "The people of this state do not yield their sovereignty to the agencies which serve them." For that reason alone, Crews deserves to win and his paper to survive.
Jim Newton’s column appears Mondays. His latest book is "Eisenhower: The White House Years." Reach him at jim.newton@latimes.com or follow him on Twitter: @newton_jim.
Friday, January 04, 2013
Judge Judith Hayes respects the public's right to know about child welfare agencies, but not about school lawyers
See all Judge Judith Hayes posts.
Judge rebukes child welfare agency for withholding data on deaths
The Department of Social Services subverted a law giving access to information on youngsters who died while under its supervision, court says.
By Garrett Therolf
Los Angeles Times
January 3, 2013
A San Diego judge has struck down state child welfare regulations that significantly limited public access to information about minors who die from abuse and neglect.
In a stern rebuke, San Diego County Superior Court Judge Judith F. Hayes said the restrictions were "inconsistent and in conflict" with a law meant to greatly expand disclosures.
The Dec. 28 decision came in a lawsuit against the California Department of Social Services and its director, Will Lightbourne. An agency spokesman said Thursday that Lightbourne has not decided if he will appeal the ruling.
When the Legislature passed that law in 2008, members said they hoped policymakers and the public would use the resulting information to better identify flaws in the states' child welfare system that contribute to fatalities. Indeed, the limited information that has since emerged led to improvements in social worker training and information systems.
But Hayes said the regulations subverted the law's intent by limiting disclosure to cases in which officials determined that children died directly at the hands of their natural parents, guardians or foster parents.
The regulations, introduced by former social services Director John Wagner and firmly upheld by Lightbourne despite objections from child advocates, had the effect of excluding deaths at the hands of other people, including extended relatives and parents' boyfriends or girlfriends.
The regulations also caused the exclusion of cases in which abuse was not the sole factor directly causing the death, including suicides involving children who said they were taking the action to end the abuse of their parents.
Furthermore, the regulations prevented child welfare agencies from releasing case files if there was an objection from the district attorney, but the judge noted that this restriction was also not specified in the law.
Hayes' Dec. 28 ruling called the regulation arbitrary and capricious, and said "the restrictions lead to underreporting or inconsistencies in the reporting of child abuse cases involving fatalities."
Los Angeles County and other jurisdictions have struggled to interpret the regulations. As a result, local officials have implemented the law inconsistently, making comparisons of fatality numbers from one year to the next less meaningful.
Steve Keane, an attorney who joined with the Children's Advocacy Institute at the University of San Diego Law School to argue the case, said the judge's ruling should clear up disclosure standards.
If authorities determine abuse or neglect at the time of a child's death, the details will be made public, he said. Los Angeles County's child welfare chief, Philip Browning, said he welcomed such a standard even though it would mean social workers will be required to acknowledge more deaths of children who had been under the department's watch.
"I'm a firm believer in having the regulations be very clear," Browning said Thursday. Browning said he hoped to spend less time in high-level deliberations discussing whether a case should be disclosed publicly and more time improving systems to prevent future deaths.
"We're going to make mistakes and we are going to just have to own up to them," Browning said. "I know there are going to be situations where we have not done as good a job as we should have...and hopefully we'll use this information to change that."
Lightbourne's nearly two-year tenure in the state post has previously attracted controversy.
After he was appointed by Gov. Jerry Brown in 2011, reporters learned that Lightbourne had been hired under an unusual arrangement designed to skirt a state law that established a lower wage for his job. Lightbourne continued to be paid by Santa Clara County, where he previously served as child welfare chief, and the state reimbursed the county for the full amount. Months later, however, the contract was canceled and he became a state employee subject to the salary cap.
Before taking the state post, Lightbourne had applied to lead Los Angeles County's Department of Children and Family Services. But some officials cooled on his candidacy when he disclosed prior marijuana use, according to two sources involved in the selection process.
Although the officials noted that attitudes on marijuana use have relaxed significantly in California, drug use is often a factor in decisions to remove children from their families.
"Director Lightbourne truthfully and directly answered questions regarding his personal background, including the disclosure of marijuana use as a young man," his spokesman said Thursday.
Judge rebukes child welfare agency for withholding data on deaths
The Department of Social Services subverted a law giving access to information on youngsters who died while under its supervision, court says.
By Garrett Therolf
Los Angeles Times
January 3, 2013
A San Diego judge has struck down state child welfare regulations that significantly limited public access to information about minors who die from abuse and neglect.
In a stern rebuke, San Diego County Superior Court Judge Judith F. Hayes said the restrictions were "inconsistent and in conflict" with a law meant to greatly expand disclosures.
The Dec. 28 decision came in a lawsuit against the California Department of Social Services and its director, Will Lightbourne. An agency spokesman said Thursday that Lightbourne has not decided if he will appeal the ruling.
When the Legislature passed that law in 2008, members said they hoped policymakers and the public would use the resulting information to better identify flaws in the states' child welfare system that contribute to fatalities. Indeed, the limited information that has since emerged led to improvements in social worker training and information systems.
But Hayes said the regulations subverted the law's intent by limiting disclosure to cases in which officials determined that children died directly at the hands of their natural parents, guardians or foster parents.
The regulations, introduced by former social services Director John Wagner and firmly upheld by Lightbourne despite objections from child advocates, had the effect of excluding deaths at the hands of other people, including extended relatives and parents' boyfriends or girlfriends.
The regulations also caused the exclusion of cases in which abuse was not the sole factor directly causing the death, including suicides involving children who said they were taking the action to end the abuse of their parents.
Furthermore, the regulations prevented child welfare agencies from releasing case files if there was an objection from the district attorney, but the judge noted that this restriction was also not specified in the law.
Hayes' Dec. 28 ruling called the regulation arbitrary and capricious, and said "the restrictions lead to underreporting or inconsistencies in the reporting of child abuse cases involving fatalities."
Los Angeles County and other jurisdictions have struggled to interpret the regulations. As a result, local officials have implemented the law inconsistently, making comparisons of fatality numbers from one year to the next less meaningful.
Steve Keane, an attorney who joined with the Children's Advocacy Institute at the University of San Diego Law School to argue the case, said the judge's ruling should clear up disclosure standards.
If authorities determine abuse or neglect at the time of a child's death, the details will be made public, he said. Los Angeles County's child welfare chief, Philip Browning, said he welcomed such a standard even though it would mean social workers will be required to acknowledge more deaths of children who had been under the department's watch.
"I'm a firm believer in having the regulations be very clear," Browning said Thursday. Browning said he hoped to spend less time in high-level deliberations discussing whether a case should be disclosed publicly and more time improving systems to prevent future deaths.
"We're going to make mistakes and we are going to just have to own up to them," Browning said. "I know there are going to be situations where we have not done as good a job as we should have...and hopefully we'll use this information to change that."
Lightbourne's nearly two-year tenure in the state post has previously attracted controversy.
After he was appointed by Gov. Jerry Brown in 2011, reporters learned that Lightbourne had been hired under an unusual arrangement designed to skirt a state law that established a lower wage for his job. Lightbourne continued to be paid by Santa Clara County, where he previously served as child welfare chief, and the state reimbursed the county for the full amount. Months later, however, the contract was canceled and he became a state employee subject to the salary cap.
Before taking the state post, Lightbourne had applied to lead Los Angeles County's Department of Children and Family Services. But some officials cooled on his candidacy when he disclosed prior marijuana use, according to two sources involved in the selection process.
Although the officials noted that attitudes on marijuana use have relaxed significantly in California, drug use is often a factor in decisions to remove children from their families.
"Director Lightbourne truthfully and directly answered questions regarding his personal background, including the disclosure of marijuana use as a young man," his spokesman said Thursday.
Thursday, November 29, 2012
Huge amount of tax dollars spent unnecesarily for school attorneys
The case of Mike Harris v. Roseville Joint Union High School District (even the name of the school district is redundant!) should be shocking. Sadly, this behavior tends to be the norm for school districts.
"“During the lawsuit, I asked to see the district’s attorney bills so I could keep track of how much the district was spending,” Harris says. “I estimate the district paid around $300,000 total to their lawyers and my attorney to keep me from seeing my son’s records.”
“This is not just a question of them trying to violate my rights,” Harris adds. “This is a question of how much money was wasted in the attempt. $300,000 is a huge amount of money, especially now in hard economic times when so many teachers are losing their jobs and so many school programs are being cut. The $300,000 should have been used to pay for teachers, books, or other costs related to educating our students, not a misguided and irresponsible attempt to deny me my rights as a parent.
“It makes absolutely no sense to spend so much money that way. It would never happen if they had to spend their own money—but apparently they operate using different standards when they spend the taxpayers’ money.”
See remarks of Justice for Ninth Circuit in Ka. D. v. Solana Beach School District.
Parent: Trustees' Fight to Keep Records Secret Cost $300K
by Terry Francke, General Counsel
Californians Aware
December 5, 2011
A Northern California school district’s commitment to unlawful secrecy cost it an estimated $300,000 in attorney’s fees—most of it paid to two different law firms to unsuccessfully defend against a parent’s lawsuit to obtain access to his son’s pupil records, the parent says.
Almost two years ago, Mike Harris asked the Roseville Joint Union High School District to show him records in connection with his son’s expulsion from the basketball team for having created a satirical video—off campus and on his own time—about adolescent drug use in the affluent Granite Bay community, and posting it on Youtube. The district showed him some, but not all the requested records.
“They gave me what they said were my son’s complete official record but what they gave me was nowhere near the complete record. They claimed the electronic records and emails that they maintain and use on a daily basis were not official records and that they did not have to give them to me. They were wrong,” Harris says.
When Harris’ efforts to persuade the school to let him see more of his son’s pupil records failed, he hired Paul Nicholas Boylan, an attorney specializing in records access law, to file a lawsuit to help him gain access to the withheld information.
Last January Boylan commenced the court action arguing that the California Constitution, Education Code and Public Records Act gave Harris the right to view his son’s records and that the school district violated Harris’ rights as a parent when they decided to them secret.
The district hired Trujillo & Vinson, a San Francisco Bay Area law firm, to defend against Harris’ lawsuit.
[Maura Larkins comment: Why didn't Trujillo & Vinson tell the school that it must release the records? Because they wanted to keep taxpayer money flowing to their firm.]
“The District’s defense was vigorous,” Boylan says. “They did everything they could to prevent Mike from seeing records that any parent should be allowed to see. But in the end the court decided to defend not just Mike’s rights, but all parents’ rights to see their children’s school records.”
On May 20, Placer County Superior Court Commissioner Margret Wells entered judgment holding that the district violated Harris’ rights and ordered the district to provide Harris with access to a complete copy of his son’s records, including emails and other electronic records.
“It was a huge victory,” Harris says.
But the dispute wasn’t over. As the winning party, Harris asked the court to order the district to pay his attorney’s fees and court costs.
“That’s when things got really nasty,” Boylan says. “As hard as the district fought to avoid letting Mike see his son’s records, they fought even harder to avoid reimbursing Mike for what it cost him to enforce his rights.”
When Harris filed his request for reimbursement, the district hired a second law firm, Meyers & Nave, a large law firm with offices in six cities, to work with Trujillo & Vinson to oppose the claim. However, right before the hearing on Harris’ motion, the case settled when the district agreed to pay Harris’ attorney’s fees and court costs.
“During the lawsuit, I asked to see the district’s attorney bills so I could keep track of how much the district was spending,” Harris says. “I estimate the district paid around $300,000 total to their lawyers and my attorney to keep me from seeing my son’s records.”
“This is not just a question of them trying to violate my rights,” Harris adds. “This is a question of how much money was wasted in the attempt. $300,000 is a huge amount of money, especially now in hard economic times when so many teachers are losing their jobs and so many school programs are being cut. The $300,000 should have been used to pay for teachers, books, or other costs related to educating our students, not a misguided and irresponsible attempt to deny me my rights as a parent.
“It makes absolutely no sense to spend so much money that way. It would never happen if they had to spend their own money—but apparently th
ey operate using different standards when they spend the taxpayers’ money.” As part of the settlement, the district has agreed to let Harris meet with the district board of trustees.
“Over the past two years I have often wondered who was in charge and if they would be held responsible for wasting our taxpayer dollars,” Harris said. “I am certain the Board of Trustees does not know the real story of what happened in my case. They should know so that this does not happen to anyone else. We can’t afford it.”
"“During the lawsuit, I asked to see the district’s attorney bills so I could keep track of how much the district was spending,” Harris says. “I estimate the district paid around $300,000 total to their lawyers and my attorney to keep me from seeing my son’s records.”
“This is not just a question of them trying to violate my rights,” Harris adds. “This is a question of how much money was wasted in the attempt. $300,000 is a huge amount of money, especially now in hard economic times when so many teachers are losing their jobs and so many school programs are being cut. The $300,000 should have been used to pay for teachers, books, or other costs related to educating our students, not a misguided and irresponsible attempt to deny me my rights as a parent.
“It makes absolutely no sense to spend so much money that way. It would never happen if they had to spend their own money—but apparently they operate using different standards when they spend the taxpayers’ money.”
See remarks of Justice for Ninth Circuit in Ka. D. v. Solana Beach School District.
Parent: Trustees' Fight to Keep Records Secret Cost $300K
by Terry Francke, General Counsel
Californians Aware
December 5, 2011
A Northern California school district’s commitment to unlawful secrecy cost it an estimated $300,000 in attorney’s fees—most of it paid to two different law firms to unsuccessfully defend against a parent’s lawsuit to obtain access to his son’s pupil records, the parent says.
Almost two years ago, Mike Harris asked the Roseville Joint Union High School District to show him records in connection with his son’s expulsion from the basketball team for having created a satirical video—off campus and on his own time—about adolescent drug use in the affluent Granite Bay community, and posting it on Youtube. The district showed him some, but not all the requested records.
“They gave me what they said were my son’s complete official record but what they gave me was nowhere near the complete record. They claimed the electronic records and emails that they maintain and use on a daily basis were not official records and that they did not have to give them to me. They were wrong,” Harris says.
When Harris’ efforts to persuade the school to let him see more of his son’s pupil records failed, he hired Paul Nicholas Boylan, an attorney specializing in records access law, to file a lawsuit to help him gain access to the withheld information.
Last January Boylan commenced the court action arguing that the California Constitution, Education Code and Public Records Act gave Harris the right to view his son’s records and that the school district violated Harris’ rights as a parent when they decided to them secret.
The district hired Trujillo & Vinson, a San Francisco Bay Area law firm, to defend against Harris’ lawsuit.
[Maura Larkins comment: Why didn't Trujillo & Vinson tell the school that it must release the records? Because they wanted to keep taxpayer money flowing to their firm.]
“The District’s defense was vigorous,” Boylan says. “They did everything they could to prevent Mike from seeing records that any parent should be allowed to see. But in the end the court decided to defend not just Mike’s rights, but all parents’ rights to see their children’s school records.”
On May 20, Placer County Superior Court Commissioner Margret Wells entered judgment holding that the district violated Harris’ rights and ordered the district to provide Harris with access to a complete copy of his son’s records, including emails and other electronic records.
“It was a huge victory,” Harris says.
But the dispute wasn’t over. As the winning party, Harris asked the court to order the district to pay his attorney’s fees and court costs.
“That’s when things got really nasty,” Boylan says. “As hard as the district fought to avoid letting Mike see his son’s records, they fought even harder to avoid reimbursing Mike for what it cost him to enforce his rights.”
When Harris filed his request for reimbursement, the district hired a second law firm, Meyers & Nave, a large law firm with offices in six cities, to work with Trujillo & Vinson to oppose the claim. However, right before the hearing on Harris’ motion, the case settled when the district agreed to pay Harris’ attorney’s fees and court costs.
“During the lawsuit, I asked to see the district’s attorney bills so I could keep track of how much the district was spending,” Harris says. “I estimate the district paid around $300,000 total to their lawyers and my attorney to keep me from seeing my son’s records.”
“This is not just a question of them trying to violate my rights,” Harris adds. “This is a question of how much money was wasted in the attempt. $300,000 is a huge amount of money, especially now in hard economic times when so many teachers are losing their jobs and so many school programs are being cut. The $300,000 should have been used to pay for teachers, books, or other costs related to educating our students, not a misguided and irresponsible attempt to deny me my rights as a parent.
“It makes absolutely no sense to spend so much money that way. It would never happen if they had to spend their own money—but apparently th
ey operate using different standards when they spend the taxpayers’ money.” As part of the settlement, the district has agreed to let Harris meet with the district board of trustees.
“Over the past two years I have often wondered who was in charge and if they would be held responsible for wasting our taxpayer dollars,” Harris said. “I am certain the Board of Trustees does not know the real story of what happened in my case. They should know so that this does not happen to anyone else. We can’t afford it.”
Monday, October 29, 2012
Man charged $56,000 for requesting records from school district
See Court of Appeal brief for Tim Crews v. Willows Unified School District.
If publisher Tim Crews loses his public records case, we all lose as well.
October 15, 2012
Jim Newton
LA Times
The ability of Californians to scrutinize their government may rest on the outcome of a little-known case unfolding in a tiny Northern California town.
It began routinely enough. Tim Crews, the pugnacious, 69-year-old editor and publisher of the Sacramento Valley Mirror, a twice-weekly newspaper that serves Glenn County, filed a request under the California Public Records Act for records held by the local school district. Specifically, Crews was looking for evidence that district officials might have spent public money to influence the outcome of a local election.
District officials did what public officials in California all-too-often do when confronted with a request they don't like. They stalled. At first, they refused to turn over anything. Then they turned over some of the records Crews had asked for, but in a format that made it impossible to search them. And when Crews asked for attachments referred to in some of the emails released in the request, the district refused to hand them over.
Crews is nothing if not dogged. He kept at it, finally persuading a judge to review thousands of the documents in chambers. The judge spent 45 minutes going through the material and then declined, without explanation, to release any more of it.
Up to that point, the case was fairly unremarkable, one of thousands of disputed but ultimately resolved Public Records Act requests that wind their way through public agencies and courts every year. But then the judge in Crews' case, Peter Twede, did something extraordinary: He concluded that Crews' request had been frivolous, and he ordered Crews to pay not only his own legal bills but those of the school district. For the privilege of obtaining documents that were his legal right to have, Crews was ordered to pay more than $100,000, an amount later reduced to $56,000.
If the judgment stands — Crews has appealed — it would have a devastating effect on the newspaper, which only has about 2,800 paid subscribers. "It would wipe us out," Crews told me last week.
It would do more than that. If upheld by the appellate courts, the judgment would radically alter the contours of the Public Records Act in California. Imagine if every time citizens asked for records under the act, they faced the possibility of having to bear not only their own legal expenses but also those that the agency might run up defending itself. Who could afford such risk?
The consequences of Crews' case are so far-reaching that a number of organizations have come to his defense, including the First Amendment Coalition (on whose board I serve without compensation). William T. Bagley, who wrote California's public records law while in the Assembly in the late 1960s, has also filed an amicus brief in support of the editor.
Crews is used to conflict. He went to jail for five days in 2000 for refusing to identify a source. It wasn't so bad, he recently recalled. "I watched a couple movies; wrote some long, long columns." Over the last five years he's filed more than a dozen cases seeking public records or claiming violations of the state's open meetings laws. It's easy to see why some officials are annoyed by him, but he doesn't scare easily.
Still, with the future of his newspaper at stake, Crews is taking the threat seriously. The paper has never missed a publication date in the 23 years he has been there, and it has served as an important watchdog of local government, in the best tradition of community newspapers.
All that is reason enough to be troubled by the action of the judge in the Crews case. But the potential damage to the public extends well beyond Glenn County and even beyond the Public Records Act itself.
If upheld, this ruling would fundamentally reorient the relationship between the people of California and those who represent them. It would require members of the public to put themselves at risk to learn about their own government. It would recast government agencies and elected officials as immune from public scrutiny rather than accountable through that scrutiny.
As the Public Records Act itself states: "The people of this state do not yield their sovereignty to the agencies which serve them." For that reason alone, Crews deserves to win and his paper to survive.
If publisher Tim Crews loses his public records case, we all lose as well.
October 15, 2012
Jim Newton
LA Times
The ability of Californians to scrutinize their government may rest on the outcome of a little-known case unfolding in a tiny Northern California town.
It began routinely enough. Tim Crews, the pugnacious, 69-year-old editor and publisher of the Sacramento Valley Mirror, a twice-weekly newspaper that serves Glenn County, filed a request under the California Public Records Act for records held by the local school district. Specifically, Crews was looking for evidence that district officials might have spent public money to influence the outcome of a local election.
District officials did what public officials in California all-too-often do when confronted with a request they don't like. They stalled. At first, they refused to turn over anything. Then they turned over some of the records Crews had asked for, but in a format that made it impossible to search them. And when Crews asked for attachments referred to in some of the emails released in the request, the district refused to hand them over.
Crews is nothing if not dogged. He kept at it, finally persuading a judge to review thousands of the documents in chambers. The judge spent 45 minutes going through the material and then declined, without explanation, to release any more of it.
Up to that point, the case was fairly unremarkable, one of thousands of disputed but ultimately resolved Public Records Act requests that wind their way through public agencies and courts every year. But then the judge in Crews' case, Peter Twede, did something extraordinary: He concluded that Crews' request had been frivolous, and he ordered Crews to pay not only his own legal bills but those of the school district. For the privilege of obtaining documents that were his legal right to have, Crews was ordered to pay more than $100,000, an amount later reduced to $56,000.
If the judgment stands — Crews has appealed — it would have a devastating effect on the newspaper, which only has about 2,800 paid subscribers. "It would wipe us out," Crews told me last week.
It would do more than that. If upheld by the appellate courts, the judgment would radically alter the contours of the Public Records Act in California. Imagine if every time citizens asked for records under the act, they faced the possibility of having to bear not only their own legal expenses but also those that the agency might run up defending itself. Who could afford such risk?
The consequences of Crews' case are so far-reaching that a number of organizations have come to his defense, including the First Amendment Coalition (on whose board I serve without compensation). William T. Bagley, who wrote California's public records law while in the Assembly in the late 1960s, has also filed an amicus brief in support of the editor.
Crews is used to conflict. He went to jail for five days in 2000 for refusing to identify a source. It wasn't so bad, he recently recalled. "I watched a couple movies; wrote some long, long columns." Over the last five years he's filed more than a dozen cases seeking public records or claiming violations of the state's open meetings laws. It's easy to see why some officials are annoyed by him, but he doesn't scare easily.
Still, with the future of his newspaper at stake, Crews is taking the threat seriously. The paper has never missed a publication date in the 23 years he has been there, and it has served as an important watchdog of local government, in the best tradition of community newspapers.
All that is reason enough to be troubled by the action of the judge in the Crews case. But the potential damage to the public extends well beyond Glenn County and even beyond the Public Records Act itself.
If upheld, this ruling would fundamentally reorient the relationship between the people of California and those who represent them. It would require members of the public to put themselves at risk to learn about their own government. It would recast government agencies and elected officials as immune from public scrutiny rather than accountable through that scrutiny.
As the Public Records Act itself states: "The people of this state do not yield their sovereignty to the agencies which serve them." For that reason alone, Crews deserves to win and his paper to survive.
Sunday, August 21, 2011
Strange redacting of public records at SDUSD: Sally Smith and Emily Alpert given very different versions of records
Maura Larkins comment: It's no wonder SDUSD wants to charge for producing public records. It takes a lot of time to do all that redacting!
S.D. Unified to review public records policy following complaint
Parent was originally told she would be charged for staff time to make copies
Ashly McGlone
San Diego Union-Tribune
Aug. 19, 2011
A parent-activist who was going to be charged for staff time so she could see San Diego Unified Superintendent Bill Kowba’s calendar won’t incur that cost, after her story was highlighted in The Watchdog.
The district ended up charging Sally Smith $2.70 — 10 cents a page — for the cost of duplicating the public record.
Smith had been told she would be charged 10 cents per page “plus clerical time for the actual duplication, at a rate of $20 to $28 per hour.”
Typically, public agencies charge for the cost of making a copy, not for staff time to do so.
After The Watchdog highlighted the effort to charge Smith for staff time, the district backed away.
The district’s policy of charging for staff time in such cases previously caught the attention of the Sacramento-based open-government group Californians Aware. That fee contributed to the district earning an F in the group’s audit of public agency compliance with public records law, released earlier this year.
District officials said they will now review their copying rates.
“We are entitled to recover the costs to produce a record that is maintained in electronic form,” said Andra Donovan, the district’s deputy general counsel. She added, “In light of the concerns raised by the U-T, we will review our copying charges to make sure they are an accurate reflection of the direct costs of duplication.”
Additionally, The Watchdog compared the calendar provided to Smith with a calendar provided to Emily Alpert of
voiceofsandiego.org and found that Smith’s calendar was incomplete and the redacting was inconsistent.
Alpert’s version included auditor visits, as well as cabinet, area superintendent and principal meetings, charity meetings, chamber of commerce and city events, select employee travel, sexual harassment training for a staff member, and media interviews — all of which were left off Smith’s calendar.
Meanwhile, Smith’s calendar included a carpool meet-up with the dean of San Diego State University’s College of Education and other employee travel redacted from the calendar provided to Alpert.
By law, agencies may withhold documents related to pending litigation and personnel, medical or similar files if disclosure would constitute an unwarranted invasion of personal privacy.
Told of the discrepancy, Donovan said the district will reproduce a more complete calendar and give it to Smith free of charge.
“We will also review our redaction policies to make sure we are consistently and appropriately redacting information,” Donovan said.
Smith, who wished to compare Kowba’s appointments with those of former Superintendent Terry Grier, said she was concerned about the district’s handling of her request.
“Californians Aware graded school districts across the state and San Diego Unified got an F, and I can see why. It is intimidating to go in and ask for public records and have to encounter so much trouble getting them,” Smith said. “San Diego Unified has to be more transparent and has to be open to requests and let the public see what it is doing.”
In 2009, The San Diego Union-Tribune requested copies of the calendars for 55 local government leaders, including Grier. The requests were all fulfilled with no fees.
District officials said budget cuts no longer allow for such freebies.
S.D. Unified to review public records policy following complaint
Parent was originally told she would be charged for staff time to make copies
Ashly McGlone
San Diego Union-Tribune
Aug. 19, 2011
A parent-activist who was going to be charged for staff time so she could see San Diego Unified Superintendent Bill Kowba’s calendar won’t incur that cost, after her story was highlighted in The Watchdog.
The district ended up charging Sally Smith $2.70 — 10 cents a page — for the cost of duplicating the public record.
Smith had been told she would be charged 10 cents per page “plus clerical time for the actual duplication, at a rate of $20 to $28 per hour.”
Typically, public agencies charge for the cost of making a copy, not for staff time to do so.
After The Watchdog highlighted the effort to charge Smith for staff time, the district backed away.
The district’s policy of charging for staff time in such cases previously caught the attention of the Sacramento-based open-government group Californians Aware. That fee contributed to the district earning an F in the group’s audit of public agency compliance with public records law, released earlier this year.
District officials said they will now review their copying rates.
“We are entitled to recover the costs to produce a record that is maintained in electronic form,” said Andra Donovan, the district’s deputy general counsel. She added, “In light of the concerns raised by the U-T, we will review our copying charges to make sure they are an accurate reflection of the direct costs of duplication.”
Additionally, The Watchdog compared the calendar provided to Smith with a calendar provided to Emily Alpert of
voiceofsandiego.org and found that Smith’s calendar was incomplete and the redacting was inconsistent.
Alpert’s version included auditor visits, as well as cabinet, area superintendent and principal meetings, charity meetings, chamber of commerce and city events, select employee travel, sexual harassment training for a staff member, and media interviews — all of which were left off Smith’s calendar.
Meanwhile, Smith’s calendar included a carpool meet-up with the dean of San Diego State University’s College of Education and other employee travel redacted from the calendar provided to Alpert.
By law, agencies may withhold documents related to pending litigation and personnel, medical or similar files if disclosure would constitute an unwarranted invasion of personal privacy.
Told of the discrepancy, Donovan said the district will reproduce a more complete calendar and give it to Smith free of charge.
“We will also review our redaction policies to make sure we are consistently and appropriately redacting information,” Donovan said.
Smith, who wished to compare Kowba’s appointments with those of former Superintendent Terry Grier, said she was concerned about the district’s handling of her request.
“Californians Aware graded school districts across the state and San Diego Unified got an F, and I can see why. It is intimidating to go in and ask for public records and have to encounter so much trouble getting them,” Smith said. “San Diego Unified has to be more transparent and has to be open to requests and let the public see what it is doing.”
In 2009, The San Diego Union-Tribune requested copies of the calendars for 55 local government leaders, including Grier. The requests were all fulfilled with no fees.
District officials said budget cuts no longer allow for such freebies.
Friday, July 29, 2011
Anatomy of a Journalistic Success and a Journalistic Failure at Voice of San Diego regarding public records
Voice of San Diego's Will Carless triumphs but Emily Alpert fails to get public records from local agencies. Click here for comparison.
I suspect that VOSD editor Andrew Donohue and CEO Scott Lewis are the ones who decide how hard to press for public records. I wonder if Buzz Woolley, the financial mainstay of Voice of San Diego, has let them know that he wants top school administrators and their lawyers to be treated much more gently than redevelopment administrators.
I suspect that VOSD editor Andrew Donohue and CEO Scott Lewis are the ones who decide how hard to press for public records. I wonder if Buzz Woolley, the financial mainstay of Voice of San Diego, has let them know that he wants top school administrators and their lawyers to be treated much more gently than redevelopment administrators.
Thursday, November 18, 2010
Is Not Turning Over Public Records Illegal?
November 18, 2010
Is Not Turning Over Public Records Illegal?
Liam Dillon
Voice of San Diego
This week, I've been through a rigmarole with San Diego City Council President Ben Hueso, his staff and council administrators about a now-withdrawn request Hueso made for $11,000 in employee bonuses.
Hueso asked Mayor Jerry Sanders' office in writing for the bonuses. But when I made a California Public Records Act request for any documents requesting additional pay in the City Council offices, Council Administration Director Lori Witzel told me that none existed. Her denial came even though she had written a cover memo to Hueso's bonus request.
The California Public Records Act requires disclosure of all government documents aside from a few limited exemptions.
I wanted to know if there was any penalty for not following the state public records law.
There's no criminal penalty for not turning over information requested under the Public Records Act, said Terry Francke, head of watchdog organization Californians Aware. Civil penalties, Francke said, only would apply if the denial of a record's existence would leave the requestor defenseless against serious harm. An example: not turning over a document that could have been used to stop a foreclosure on the requester's home.
"Otherwise, lying to the public about the existence of a government record may be immoral or unethical, but it has never been made illegal," Francke said.
For the record, both Witzel and Hueso's spokeswoman Michelle Ganon told me that they didn't believe that the bonus documents were subject to my request. You can judge for yourself. Here's my request. Here's the response. Here are the bonus documents.
It is, however, a misdemeanor crime under the California Government Code for a public official to knowingly make false statements in writing to the public. But Francke said he's seen "no indication that it's ever been used to punish such informal communications as these."
Francke added that Californians Aware sponsored legislation in 2006 that would have made dishonest responses to public records requests subject to substantial fines, but the bill was vetoed.
Is Not Turning Over Public Records Illegal?
Liam Dillon
Voice of San Diego
This week, I've been through a rigmarole with San Diego City Council President Ben Hueso, his staff and council administrators about a now-withdrawn request Hueso made for $11,000 in employee bonuses.
Hueso asked Mayor Jerry Sanders' office in writing for the bonuses. But when I made a California Public Records Act request for any documents requesting additional pay in the City Council offices, Council Administration Director Lori Witzel told me that none existed. Her denial came even though she had written a cover memo to Hueso's bonus request.
The California Public Records Act requires disclosure of all government documents aside from a few limited exemptions.
I wanted to know if there was any penalty for not following the state public records law.
There's no criminal penalty for not turning over information requested under the Public Records Act, said Terry Francke, head of watchdog organization Californians Aware. Civil penalties, Francke said, only would apply if the denial of a record's existence would leave the requestor defenseless against serious harm. An example: not turning over a document that could have been used to stop a foreclosure on the requester's home.
"Otherwise, lying to the public about the existence of a government record may be immoral or unethical, but it has never been made illegal," Francke said.
For the record, both Witzel and Hueso's spokeswoman Michelle Ganon told me that they didn't believe that the bonus documents were subject to my request. You can judge for yourself. Here's my request. Here's the response. Here are the bonus documents.
It is, however, a misdemeanor crime under the California Government Code for a public official to knowingly make false statements in writing to the public. But Francke said he's seen "no indication that it's ever been used to punish such informal communications as these."
Francke added that Californians Aware sponsored legislation in 2006 that would have made dishonest responses to public records requests subject to substantial fines, but the bill was vetoed.
Wednesday, August 18, 2010
Even the San Diego Union-Tribune can't get SDCOE to spill its secrets about Stutz law firm
I was successful a few years ago in getting some invoices from San Diego County Office of Education. I obtained records of payments to Dan Shinoff and Stutz, Artiano, Shinoff & Holtz law firm, but there were some strange gaps in the record. Perhaps the San Diego Union Tribune will succeed in obtaining the missing 17 months worth of invoices that SDCOE wouldn't give to me in 2008.
Education office won't release records until October
By Jeff McDonald
SAN DIEGO UNION-TRIBUNE
August 17, 2010
The San Diego County Office of Education says it will need nearly two months to disclose how much it spends on lawyers.
The schools office, which represents dozens of districts and manages pensions for thousands of teachers and administrators, said in a letter to The Watchdog received Tuesday that it would not be able to comply with a California Public Records Act request until October.
“We will contact you as soon as the records are available for your inspection and/or purchase of a copy,” states the correspondence, signed by Pam Gilles, the senior director of internal business services.
Over the five years ending in 2008, the county schools office spent more than $7 million on outside legal services, much of it to a single law firm, Stutz, Artiano, Shinoff & Holtz.
The schools office continues to litigate at least two high-profile cases, one involving a long-running dispute with former brokers with the office’s deferred-compensation plan and the other with a former employee alleging wrongful termination.
On Aug. 4, The Watchdog requested records reflecting the past five years’ worth of legal fees paid by the office. But according to Gilles, those documents “will be available on or about Oct. 1, 2010.”
Education office won't release records until October
By Jeff McDonald
SAN DIEGO UNION-TRIBUNE
August 17, 2010
The San Diego County Office of Education says it will need nearly two months to disclose how much it spends on lawyers.
The schools office, which represents dozens of districts and manages pensions for thousands of teachers and administrators, said in a letter to The Watchdog received Tuesday that it would not be able to comply with a California Public Records Act request until October.
“We will contact you as soon as the records are available for your inspection and/or purchase of a copy,” states the correspondence, signed by Pam Gilles, the senior director of internal business services.
Over the five years ending in 2008, the county schools office spent more than $7 million on outside legal services, much of it to a single law firm, Stutz, Artiano, Shinoff & Holtz.
The schools office continues to litigate at least two high-profile cases, one involving a long-running dispute with former brokers with the office’s deferred-compensation plan and the other with a former employee alleging wrongful termination.
On Aug. 4, The Watchdog requested records reflecting the past five years’ worth of legal fees paid by the office. But according to Gilles, those documents “will be available on or about Oct. 1, 2010.”
Sunday, October 11, 2009
FBI Investigated Coder for posting public documents
Aaron SwartzFBI Investigated Coder for Liberating Paywalled Court Records
By Ryan Singel
Wired.com
October 5, 2009
When 22-year-old programmer Aaron Swartz decided last fall to help an open-government activist amass a public and free copy of millions of federal court records, he did not expect he’d end up with an FBI agent trying to stake out his house.
But that’s what happened, as Swartz found out this week when he got his FBI file through a Freedom of Information Act request. A partially-redacted FBI report shows the feds mounted a serious investigation of Swartz for helping put public documents onto the public web .
The FBI ran Swartz through a full range of government databases starting in February, and drove by his home, after the U.S. court system told the feds he’d pilfered approximately 18 million pages of documents worth $1.5 million dollars. That’s how much the public records would have cost through the federal judiciary’s pay-walled PACER record system, which charges eight cents a page for most legal filings.
“I think its pretty silly they go after people who use the library to try to get access to public court documents,” Swartz said. “It is pretty silly that instead of calling me up, they sent an FBI agent to my house.”...
Thursday, September 24, 2009
New Bob Watkins disclosure problem: he failed to report property he owned on SDCOE conflict of interest forms
See all posts re Bob Watkins.
More Watkins Disclosure Discrepancies
Voice of San Diego
ROB DAVIS
September 24, 2009
When Bob Watkins, the airport authority chairman, clears up problems with his conflict-of-interest disclosures -- as he promised Mayor Jerry Sanders today -- he'll also have to address disclosure issues during his service on the San Diego County Board of Education.
His disclosures to the [San Diego County] board of education raise other questions. One year's report he filed with the county board doesn't jive with the report he sent to the airport authority the same year.
His annual disclosure to the county board submitted Feb. 1, 2007 said he had nothing to report -- no businesses, stock or property. But in his disclosure to the airport authority two weeks later, he said he owned a business, that he was its CEO, and that he owned property and more than $100,000 of stock.
Watkins hasn't returned a call seeking comment.
More Watkins Disclosure Discrepancies
Voice of San Diego
ROB DAVIS
September 24, 2009
When Bob Watkins, the airport authority chairman, clears up problems with his conflict-of-interest disclosures -- as he promised Mayor Jerry Sanders today -- he'll also have to address disclosure issues during his service on the San Diego County Board of Education.
His disclosures to the [San Diego County] board of education raise other questions. One year's report he filed with the county board doesn't jive with the report he sent to the airport authority the same year.
His annual disclosure to the county board submitted Feb. 1, 2007 said he had nothing to report -- no businesses, stock or property. But in his disclosure to the airport authority two weeks later, he said he owned a business, that he was its CEO, and that he owned property and more than $100,000 of stock.
Watkins hasn't returned a call seeking comment.
SDCOE's Randolph Ward refuses to turn over Bob Watkins' conflict of interest statements
See all Bob Watkins' posts.
See all Randolph Ward posts.
Click on the link directly below to see Voice of San Diego's links to other stories.
Who's Wrongly Keeping Information Secret?
by ROB DAVIS
Voice of San Diego
September 24, 2009
As we reported recently, Bob Watkins, the airport authority chairman, didn't disclose property he owns near the airport on his annual conflict-of-interest reports the authority keeps.
Watkins, who's scheduled to meet today with Mayor Jerry Sanders about that issue and others we've raised, previously served on the board of the County Office of Education. I went to its office today to see what Watkins listed on the disclosure forms he submitted during his tenure.
State law requires public agencies to produce the forms for anyone who wants to see them. During regular office hours. At any time of the day.
While many public documents require a written request to be disclosed, the conflict forms don't. State law says "no conditions whatsoever" can be imposed on members of the public who want to see the documents. The agency can't ask for identification or any information from a requestor.
But Leo Cole, the assistant to county Superintendent Randy Ward, told me to file a written request for the forms when I arrived at the office today. She said the office would follow up as soon as possible. Three people have access to the disclosure forms, Cole said. All were out of the office, she said.
Cole told me that she'd talked to Ward, who was out of the office but had given her those instructions.
I read the relevant section of state law to her and asked her to call the superintendent back and tell him that his instructions violate state law.
So she called Ward, then called me at the front desk, where I was waiting.
File a written request for the forms, she told me again.
Violating the state law can bring fines as high as $5,000 per incident from the state Fair Political Practices Commission, which enforces disclosure laws.
It's the second time the county office has done this. The office required another voiceofsandiego.org reporter to file a legal request for the same documents last year.
I called Roman Porter, the FPPC's executive director, to tell him about the problem.
"The Political Reform Act specifically bars agencies from asking for any identifiable information from requestors or requiring a request to be submitted in writing," Porter told me.
Bob Stern, a former FPPC attorney who wrote the section of the law requiring public agencies to immediately disclose the records to any member of the public, said the county office's refusal to provide the documents was "highly unusual."
"It's totally inappropriate," Stern said. "The FPPC should tell them that they can't do this. Most agencies know the rules -- particularly when you show them."
I've just heard back from the office of education. They're making the forms available. "We fully intend to comply," Jim Esterbrooks, a spokesman, told me.
See all Randolph Ward posts.
Click on the link directly below to see Voice of San Diego's links to other stories.
Who's Wrongly Keeping Information Secret?
by ROB DAVIS
Voice of San Diego
September 24, 2009
As we reported recently, Bob Watkins, the airport authority chairman, didn't disclose property he owns near the airport on his annual conflict-of-interest reports the authority keeps.
Watkins, who's scheduled to meet today with Mayor Jerry Sanders about that issue and others we've raised, previously served on the board of the County Office of Education. I went to its office today to see what Watkins listed on the disclosure forms he submitted during his tenure.
State law requires public agencies to produce the forms for anyone who wants to see them. During regular office hours. At any time of the day.
While many public documents require a written request to be disclosed, the conflict forms don't. State law says "no conditions whatsoever" can be imposed on members of the public who want to see the documents. The agency can't ask for identification or any information from a requestor.
But Leo Cole, the assistant to county Superintendent Randy Ward, told me to file a written request for the forms when I arrived at the office today. She said the office would follow up as soon as possible. Three people have access to the disclosure forms, Cole said. All were out of the office, she said.
Cole told me that she'd talked to Ward, who was out of the office but had given her those instructions.
I read the relevant section of state law to her and asked her to call the superintendent back and tell him that his instructions violate state law.
So she called Ward, then called me at the front desk, where I was waiting.
File a written request for the forms, she told me again.
Violating the state law can bring fines as high as $5,000 per incident from the state Fair Political Practices Commission, which enforces disclosure laws.
It's the second time the county office has done this. The office required another voiceofsandiego.org reporter to file a legal request for the same documents last year.
I called Roman Porter, the FPPC's executive director, to tell him about the problem.
"The Political Reform Act specifically bars agencies from asking for any identifiable information from requestors or requiring a request to be submitted in writing," Porter told me.
Bob Stern, a former FPPC attorney who wrote the section of the law requiring public agencies to immediately disclose the records to any member of the public, said the county office's refusal to provide the documents was "highly unusual."
"It's totally inappropriate," Stern said. "The FPPC should tell them that they can't do this. Most agencies know the rules -- particularly when you show them."
I've just heard back from the office of education. They're making the forms available. "We fully intend to comply," Jim Esterbrooks, a spokesman, told me.
Wednesday, May 20, 2009
Do public schools have a right to hide investigations of possible serious misconduct by employees?
No, says Terry Francke:
"Three decisions of the California Court of Appeal issued over 35 years-two of them overruling denials by school districts-conclude that public employees have no right of privacy to bar disclosure of, and their employers may not withhold, records showing complaints of serious misconduct that are found substantiated by investigation, or have other hallmarks of reliability.
"If the employees are public figures such as superintendents or other top officials, disclosure of investigative findings may be required, even when they tend to exonerate the official, if doing so is necessary to restore public confidence. - Terry Francke, general counsel of Californians Aware
(This quote is from:
Hornet audits local education agencies
Reporters worked with Californians Aware and requested public records
Michael Mette
4/22/09
[Maura Larkins' note: It would certainly restore public confidence if Chula Vista Elementary School District would release its investigation of a teacher at Castle Park Elementary who was suspected by fellow teachers of being on the verge of committing a mass shooting at the school. The safety of children and staff seems to have been of no concern at all to the district. The investigation was bungled, and the embarrassment regarding the bungling seems to have been of more concern to board members than the safety of children. They preferred to hush the matter up rather than do a real investigation.]
"Three decisions of the California Court of Appeal issued over 35 years-two of them overruling denials by school districts-conclude that public employees have no right of privacy to bar disclosure of, and their employers may not withhold, records showing complaints of serious misconduct that are found substantiated by investigation, or have other hallmarks of reliability.
"If the employees are public figures such as superintendents or other top officials, disclosure of investigative findings may be required, even when they tend to exonerate the official, if doing so is necessary to restore public confidence. - Terry Francke, general counsel of Californians Aware
(This quote is from:
Hornet audits local education agencies
Reporters worked with Californians Aware and requested public records
Michael Mette
4/22/09
[Maura Larkins' note: It would certainly restore public confidence if Chula Vista Elementary School District would release its investigation of a teacher at Castle Park Elementary who was suspected by fellow teachers of being on the verge of committing a mass shooting at the school. The safety of children and staff seems to have been of no concern at all to the district. The investigation was bungled, and the embarrassment regarding the bungling seems to have been of more concern to board members than the safety of children. They preferred to hush the matter up rather than do a real investigation.]
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