By JW August, journalist and Past President of Californians Aware
A widely criticized effort by San Diego City Attorney Mara Elliott and State Senator Ben Hueso to weaken California’s open records law recently went down in flames.
The outcry across the state and in the city of San Diego doomed the poorly conceived legislation. More specifically, the proposed bill was an attempt to rewrite the California Public Records Act (CPRA)—protected by the state’s constitution—with no support within the city and no apparent understanding by Senator Hueso’s office of the consequences of such legislation.
Consider that using the CPRA to secure access to records will oftentimes require patience—and on occasion money—to force the government to comply with the Act. SB 615 would have made it much more challenging for members of the public to take government agencies to court in order to obtain records. And it would have made it much harder to collect attorney’s fees from agencies found to be in violation of the law.
So the question arises, why did these two politicians choose this misguided effort to gut the open records law?
The story behind this story begins in a garage in the San Diego neighborhood of Del Mar Heights. It involves a code compliance complaint with a curious history that led years later to the city’s having to pay $153,480 for the way it responded to a CPRA request and its apparent lack of understanding of how employees must comply with that law.
It was the 2016 decision from the California Court of Appeal in Ponani Sukumar v. City of San Diego that Elliott chose as the poster child for her campaign to change the law. In a published op ed piece she claimed that if “just one sheet of paper” is inadvertently overlooked in responding to a public records request, it could lead to an expensive lawsuit and a court order to pay the requester’s attorney’s fees. She didn’t name the Sukumar case in her argument for the law. This reporter only learned the name of the case after filing a California Public Records Act request with her office.
It struck me as ironic that one of Elliott’s complaints is the number of CPRA requests being made but that is exactly what her office told me to do when I asked for the name of the lawsuit she references in a published op-ed piece. There is a certain timeliness required in the news business, which is why shuffling reporters off to file CPRA requests acts as a brake on the gathering of news.
Unfortunately, it seems more often than not that any request to a San Diego city department requiring more than a yes or no answer often ends in a response advising the requester to file an open records request.
In her opinion piece in which she references the lawsuit, Elliott says employees did a “diligent search but an innocent error was made” and a lawyer collected money that could have gone to other things we all care about, like parks and libraries. She says all that is needed is “honest communication.”
The dispute that led to the CPRA decision began when a neighbor complained in 1992 about Mr. Sukumar’s use of his own property. More code compliance complaints were filed in 2005 and 2006. One of the complaints about his Holistic Vegetarian House Corporation was the use of large washing machines and other equipment in his garage. The complaints eventually stopped and everything quieted down. Then code compliance inspectors returned in 2013 but found that everything done on the property was city approved. They returned yet again in 2014, when someone got then City Councilwoman Sherri Lightner’s office involved. A short time later, the city advised Sukumar that his code compliance violations meant “he was subject to civil penalties.”
Attorney James E. Friedhofer, representing Sukumar, sought to know what information and documents the city had regarding any “contemplated” enforcement actions the city was going to take. And he wanted to know why the code enforcement case kept opening and closing. Was it political pressure? Just what was going on?
City Attorney Elliott’s claims about this case and what actually happened are two very different things. From the outset, Friedhofer knew that city inspectors took pictures of Sukumar’s garage. This had been witnessed. But when he made his original CPRA request, no photos showed up. One email provided to him early on indicated that many other documents related to the case were in the system, including one key email he looked for that apparently triggered the latest visit by code compliance inspectors.
Looking at the Court of Appeal’s opinion, we can see for ourselves that this was not a case of one sheet of paper “inadvertently overlooked” by city employees as claimed in Elliott’s editorial.
One city department responded to Friedhofer’s CPRA request with certain documents, saying “This letter constitutes the City’s final response” to his request for information. His request was satisfied, said the city.
Friedhofer asked if the city’s search was thorough. The clerk responded, “city staff has searched as broadly and as thoroughly as possible to locate” the records. But he knew there were records missing. So after waiting three weeks, he asked a court to tell the city it had to comply with the law. This time an assistant city attorney met with him. He asked her to find a specific email from a specific date, which he believed revealed the reason for the code enforcement action. She responded by saying there was no need to ask the court for help. Then she revealed the city is “still in the process” of producing documents. Two months later, numerous other documents were “found” and provided to the attorney, including some that were redacted—but still the email he was specifically seeking did not show up.
Then Friedhofer received a notice from the city saying he had received “all remaining emails of which the City was aware.” Then a short time later, the city apparently reversed itself, releasing more documents. By now, Friedhofer was asking the court to compel the city to give him everything he requested and was entitled to under the law. The judge asked why the city wouldn’t just produce the record. The attorney representing the city said, “we did produce the record,” adding Friedhofer “doesn’t believe we’ve produced the records.” The judge said he wanted to “cut to the chase” and ordered the city to provide its three top open records experts to answer Friedhofer’s questions in a deposition.
Once in the deposition, Friedhofer asked a series of questions that revealed the experts’ shocking lack of knowledge of what was needed to complete the request. He asked each city employee if they checked with the city office that brought the most recent complaint, and they said no. When he asked them if anyone had checked code compliance files for photographs, they had not. But following the deposition, a search of the department’s shared computer drive turned up the missing photographs, including two “photographs (that) appear to be taken inside Sukumar’s garage.”
Just days before the deposition, the missing email that led to the code compliance action was discovered on Councilwoman Lightner’s office computer. It was also eventually found in the mayor’s office, the San Diego Police Department and the code compliance office.
In the Court of Appeal’s decision, Justice Gilbert Nares wrote, “….but for Sukumar’s persistent demand for discovery and the court-ordered depositions that resulted from those efforts, the City would not have produced any of the above-mentioned responsive documents.”
“‘The effect of the City’s inability or unwillingness to locate and produce these documents until court-ordered discovery,” reads the unanimous decision, “is tantamount to withholding requested information from a PRA request.”
So the question becomes, how and why was this bill introduced? A CPRA request to the office of the City Attorney reveals that Elliott’s Chief of Staff, Gerry Braun, and Hueso’s Chief of Staff, Ana Molina, exchanged a series of emails about the legislation. Braun thanks Molina for Hueso adding the “unbacked bill” to his “legislative portfolio,” adding “It will reduce or eliminate legal costs for CPRA requestors and responding agencies…” because of mistakes or miscommunication.
Hueso’s legislative director, Aaron Brieno, thanks Braun for a fact sheet he sends over on SB 615. Brieno then asks Braun to “provide our office with statistics from the last 2-3 years that indicate how much money the City used to fulfill these overly broad PRA requests” The documents don’t show Braun answering the question.
Two sources, both attorneys familiar with current issues involving the state’s public records law and how local governments function in California, agreed to speak frankly about why they believe this attempt to legislate away the CPRA’s enforcement occurred, as long as they were not identified.
They believe this was an effort supported by the League of California Cities because its members are encountering great difficulty with the CPRA given the compartmentalized fiefdoms and bureaucratized information storage and processing in place in most cities.
The San Diego experience revealed that the city does not have a functional system for getting their arms around and controlling all city documents, or even searching for all pertinent documents. The technology is available but the city is behind in dedicating the resources needed to make it happen.
San Diego is the second largest city in California. Its residents, as well as the citizens of the entire state of California, deserve better.
The California Public Records Act is the law.