S.D. PAID $240K TO SETTLE PUBLIC-RECORD LAWSUITS

Most claims accused city of failing to comply with open-records law

The city of San Diego has paid more than $240,000 in attorney fees and court costs since the start of last year for denying California Public Records Act requests — and more judgments are likely coming soon.

In case after case, the city paid to settle allegations that officials improperly withheld documents, wrongly insisted there were no records or simply did not follow the law.

“The city violated the California Public Records Act by failing to produce at least one responsive, non-exempt public record,” Judge Eddie Sturgeon wrote in one February ruling, after considering the merits of a lawsuit brought by San Diegans for Open Government.

In that proceeding alone, Sturgeon awarded the watchdog group represented by San Diego attorney Cory Briggs more than $33,000 in legal fees and court costs.

The San Diego Union-Tribune reviewed almost two dozen lawsuits filed in the past five years that accused San Diego or other local jurisdictions of failing to comply with the state open-records law by claiming unjustified exemptions or denying there were any documents to release.

All but two were lodged against San Diego.

It’s possible the number of alleged violations is even higher. As a public agency, the city is involved in hundreds of lawsuits a year; the legal complaints must be reviewed individually to determine whether they allege mishandling of Public Records Act requests.

The allegations do not represent hugely significant costs for a municipality that raises and spends more than $2 billion a year.

But experts say San Diego’s habit of rejecting Public Records Act requests is troubling because scrutinizing government documents, recordings and other material is one of the most important checks and balances on elected and appointed officials.

“Citizens have a right to know how their government operates,” said Dean Nelson, who directs the journalism program at Point Loma Nazarene University. “That’s part of being in a democratic society.

“Laws like the public-records mandates are guarantees that we can see how our officials are conducting themselves and how they are spending our money,” he said.

A spokesperson for San Diego City Attorney Mara Elliott said the city has paid $242,000 since Jan. 1, 2021, for public-records cases brought against the city.

Three of those cases were lost at trial; eight others were settled out of court.

The costs are in line with costs experienced by other large cities, the office said, but Elliott is nonetheless committed to finding ways to reduce those expenses and to make sure people get the material to which they are entitled.

“The process can always be improved,” spokesperson Leslie Wolf Branscomb said by email.

“The city attorney’s office has offered global solutions since at least December 2019, when the city attorney first advocated for a centralized office under the mayor that would coordinate city response to CPRA requests to provide information to the public with greater speed, consistency, and accuracy,” the email said.

In a court appearance earlier this month, a lawyer for the city complained that Public Records Act lawsuits “are becoming such a drain on city resources.”

“We have done everything we can,” Deputy City Attorney Erin Dillon told Judge Joel Wohlfeil during a hearing called to debate whether Briggs should be paid $600 or $750 for each hour he spent winning an open-records case.

“We admitted our mistake,” she added. “And Mr. Briggs continues to insist on discovery. It rewards this sort of brinksmanship and tactics.”

Like most plaintiffs’ lawyers, Briggs relies on the legal process of discovery — collecting internal documents and conducting depositions — to support allegations in their complaints.

The city of San Diego is not alone in failing to comply with the California Public Records Act.

Chula Vista is now litigating a lawsuit filed over video records from its Police Department’s drone program that officials have refused to release. San Diego County recently resolved a claim over documents requested for a regional law enforcement program.

But the complaints piling up against the city of San Diego are especially notable in light of the city’s past effort to make accessing public records more difficult.

At Elliott’s request, state Sen. Ben Hueso, D-San Diego, introduced a bill in early 2019 that would have required people filing requests to “meet and confer” with agencies to discuss their requests before they are fulfilled.

The legislation also would have required plaintiffs to prove a public agency “knowingly, willfully and without substantial justification failed to respond to a request for records” to prevail in any lawsuit.

The bill was vilified by goodgovernment advocates and others who worried that it would kneecap the public’s ability to monitor their governments and would shield public officials and agencies from liability.

Hueso withdrew the bill weeks after it began generating broad statewide criticism.

“The Public Records Act is an essential component of California’s strong commitment to open government and transparency,” the senator said in announcing his change of heart.

‘Intentionally withheld’

The city of San Diego receives thousands of records requests every year, more than 6,000 so far this year.

They come from lawyers, journalists, researchers, insurance companies and everyday citizens, people who are seeking everything from billing reports and arrest data to employee emails and other internal communications.

Like many jurisdictions, San Diego operates an online portal system that residents may use to submit requests, although the law says people can ask for documents any way they like. Agencies have 10 days to provide the records or explain why it will take additional time.

The law also requires the city to help people refine requests to get them what they want.

The Public Records Act contains a handful of exceptions that allow the government to legally withhold some documents. Those include the attorney-client privilege and the more subjective finding that the public interest is better served by keeping certain records secret.

Exemption claims by San Diego officials are behind many of the lawsuits filed against the city.

In February 2021, for example, San Diego taxpayer and resident Joshua Billauer submitted a request for any writings “directed to, received or reviewed by, or sent or created” by a supervisor in the Development Services Department over the prior four months.

The city released some documents over the next several months, but Billauer suspected there were other records that were being withheld. He sued, accusing the city of failing to conduct a thorough search for the documents and refusing to disclose others.

The “city intentionally withheld the public records responsive to the CPRA request prior to the commencement of this lawsuit,” the legal complaint said.

City officials denied the allegations, citing the attorney-client privilege exemption, and a hearing is scheduled for next month.

In other cases, San Diego has insisted there were no records responsive to a particular request only to be proved wrong through the exchange of documents and testimony in advance of any trial.

Last year, for example, after La Prensa San Diego publisher Arturo Castanaras sought communications from a specific city employee, officials initially rejected the request because it was filed by his attorney, Briggs, rather than by Castanaras.

When that tactic failed, court records show, the city argued that the documents were being withheld under the attorney-client privilege and because the public interest in non-disclosure outweighed the public interest in releasing them.

After Judge Ronald Frazier directed the city to provide him the disputed records so he could determine whether they should be released, the city adopted another position.

“(The) city has now submitted a declaration stating, contrary to the city’s initial response, that no documents were withheld on the grounds of attorney-client privilege or on any other ground,” the judge ruled last month in ordering the records released.

Castanaras has filed no fewer than eight public-records lawsuits in recent years and won the majority of those that have been decided. He said public officials leave him no choice but to take his claims to court when his requests are denied.

“Either they are so incompetent that none of their CPRA responses should be believed — and everybody should be concerned about that, or they are only doing it to me and forcing me to file lawsuits to get documents that I am entitled to,” he said.

The La Prensa San Diego publisher, who has been a sharp critic of San Diego city leaders in both stories and editorials, said he does not believe the failed responses are the result of innocent mistakes.

“There are some very good attorneys in the city attorney’s office,” Castanaras said. “This is a systematic way to limit the public’s access to public documents.”

$600 an hour

For years, Briggs said, he managed a thriving practice specializing in environmental law, challenging development permits, environmental impact reports and landuse policies.

But at least 15 years ago, after discovery turned up documents that had been initially denied, he said he began filing open-records violations before proceeding with legal challenges to environmentalimpact reports or general plan amendments.

“These (development) deals are all hatched before the public sees the consequences,” Briggs said. “At that point, I started exercising my rights under the opengovernment laws.”

It did not take long for clients to begin seeking him out for help with document requests. He has filed dozens of records cases in the past decade-plus on behalf of individuals and San Diegans for Open Government.

“Most agencies are all the same when it’s on topics that are controversial — they all try to hide it,” said Briggs, who unsuccessfully challenged Elliott in her 2020 reelection bid.

“Where San Diego is different, as you can tell by the cases, is they simply refuse to admit that they withheld documents or they didn’t do a proper search — until the person in the black robe says so,” he said.

David Loy is the legal director at the First Amendment Coalition, an open-government advocacy group based in Marin County. He said public agencies should never lose lawsuits over government records because they should not be violating the law in the first place.

“The Public Records Act is supposed to be the cornerstone of governmental accountability and transparency,” Loy said. “So if the government is forcing you to sue to enforce that, at some level the public has already lost.”

The nonprofit’s legal director said governments, like most businesses and organizations, should maintain an efficient and effective records-keeping program.

“The solutions to these problems are not rocket science,” Loy said. “Document control is a standard feature of any large bureaucracy. The other question is: They have the documents — and are they wrongly asserting exemptions?”

Hours after the Superior Court appearance earlier this month between Briggs and the deputy city attorney who challenged his legal fees, the judge entered his order.

It awarded the plaintiff ’s attorney $600 an hour for his work in that case.