San Diego SPJ asks Sen. Ben Hueso, City Attorney Mara Elliott to rethink proposed changes to state records act

The San Diego Pro Chapter of the Society of Professional Journalists is deeply troubled by proposed state legislation that would make it more difficult for journalists and the public to understand how government works and hold officials accountable.

Senate Bill 615 — introduced by state Sen. Ben Hueso, a San Diego Democrat — sets an extremely high bar for anyone who successfully sues for the release of public records to recover attorney’s fees and costs. Currently, the California Public Records Act includes a provision that allows requesters to recover fees if a court rules an agency has improperly withheld records.

This provision is of critical importance. Media outlets and ordinary citizens can’t afford to go to court to force the disclosure of records unless they’re able to recoup attorney’s fees. The threat of lawsuits — and the requirement that government agencies pay successful requesters’ attorney’s fees — helps keep agencies honest and encourages them to voluntarily disclose records.

SB 615 seeks to remove the teeth from the California Public Records Act by permitting requesters to recoup attorney’s fees only in narrowly defined circumstances, including when records “clearly” subject to disclosure are withheld or when an agency “knowingly, willfully, and without substantial justification failed to respond to a request.” The California Newspaper Publishers Association’s general counsel says this is “a standard that’s nearly impossible to meet.”

This change would eviscerate the California Public Records Act by making it financially impossible for requesters to sue uncooperative agencies, and it would remove the only incentive for government agencies to follow the law. Under SB 615, agencies could withhold public records with impunity, knowing that if they were challenged, they wouldn’t face any consequences other than having to disclose the records they should have provided in the first place.

Hueso and the bill’s chief sponsor — San Diego City Attorney Mara Elliott — say public agencies throughout the state have been overwhelmed by records requests — though Hueso cites only three examples, including the city of San Diego, which says it fielded 4,824 requests in 2018, up from 749 in 2012. Hueso’s office says “budget constraints, limited resources and the ever-increasing amount of requests can hamper the effectiveness of government and unnecessarily exhaust taxpayer dollars.”

The solution to an increase in public records requests is not to remove the only tool the media and the public have to enforce state law. There are many other ways to address an influx of  requests, including more staffing, better staff training and publicly posting data and information that’s frequently requested. Any additional cost to taxpayers would be a small price to ensure journalists, public interest groups, community groups, advocacy organizations and taxpayers can obtain documents that illuminate how government operates.

The bill would also require requesters to “meet-and-confer” with an agency before bringing a lawsuit. In public discussions of the bill, Hueso and Elliott have focused on this less controversial provision, distracting attention from the bill’s attorney’s fees provision. Given the exchanges that already occur between requesters and agencies prior to lawsuits, the meet-and-confer requirement strikes us as superfluous.

We are disappointed in Sen. Hueso and City Attorney Elliott’s attack on government transparency and the public’s right to know. Obtaining records is often extremely difficult, time-consuming and expensive. SB 615, if approved, would seriously undermine California’s public records law and give officials free rein to conduct the people’s business outside of public view.

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SD SPJ Urges Sheriff’s Department To Release Public Records

Today, board members of the San Diego Pro Chapter of the Society of Professional Journalists sent the following letter to Sheriff Bill Gore and Legal Counsel Sanford Toyen. We are troubled by the Sheriff’s refusal to release to KPBS journalists and the public information that is clearly public record under state law. The denials have forced KPBS to sue the department in order to obtain this information.


Dear Sheriff Gore and Mr. Toyen,

We applaud Sheriff Gore’s recent decision to not charge journalists and members of the public for redacting audio and video records requested under Senate Bill 1421. This change in approach suggests that you agree transparency is essential for gaining and keeping the public trust.

Yet, the handling of a recent records request raises concerns about your office’s commitment to these principles. For months, KPBS reporter Claire Trageser has been investigating how long it takes the Sheriff’s Department to respond to public complaints. She asked the department for this information after learning from a civil lawsuit that the Sheriff’s Department did not respond to a complaint about sexual misconduct by one of its deputies. That deputy, Richard Fischer, has since been charged with 14 criminal counts, and 21 women have filed civil lawsuits alleging sexual misconduct.

The Sheriff’s Department has repeatedly denied Trageser’s requests, forcing KPBS to sue to obtain these records.

The public interest in accessing this information is clear: a Sheriff’s deputy has been criminally charged for sexual assault, and members of the public have said their formal complaints went ignored.

The San Diego Pro Chapter of the Society of Professional Journalists is troubled that the department is choosing not to release this information, even though state law says that “the time, substance, and location of all complaints or requests for assistance received by the [law enforcement agency] and the time and nature of the response thereto” are public information.

We respectfully ask that you release the records KPBS has requested. Forcing a news organization to sue to obtain records that clearly should be made public under the law doesn’t engender trust in law enforcement. Situations like this should not be met with secrecy, but rather a commitment to ensuring the public feels the department takes complaints — particularly complaints of criminal conduct — seriously.

Sincerely,

Board Members
San Diego Pro Chapter of the Society of Professional Journalists

DISCLOSURE: Neither SD SPJ Board Member Matthew Halgren nor SD SPJ Past President Claire Trageser participated in the crafting of this letter.

San Diego SPJ Applauds Proposed SDUSD Email Retention Policy Settlement

The San Diego chapter of the Society of Professional Journalists is pleased to learn of a possible resolution to a matter we’ve been closely involved with for more than a year.

In a closed session meeting Tuesday evening, the San Diego Unified School District Board of Trustees agreed to modify the district’s email retention policy, which previously stated that certain emails would automatically be deleted after one year. Under the new modified policy, the district will keep all emails for at least two years. The change is part of a settlement stemming from lawsuits filed by Voice of San Diego and San Diegans for Open Government.

Since June 2017, San Diego SPJ has urged the district to retain emails for at least two years, a practice in place at other large California school districts. We alsoexpressed concern with the lack of transparency surrounding the implementation of the policy — concerns we feel the school board failed to take seriously.

This past May, the day before the scheduled deletion of millions of emails, Voice of San Diego and San Diegans for Open Government requested temporary restraining orders to halt the policy’s implementation. In August, Superior Court Judge Ronald Styn ordered the district to refrain from deleting any emails, pending a 2019 trial.

This week’s settlement agreement, if approved by Judge Styn, would also bar the district from destroying any email that’s part of litigation or a public-records request, and it would require the district to pay $52,000 in attorney fees, at taxpayers’ expense. The settlement agreement will remain in place for five years. After that, the District can return to its previous one-year retention policy.

This agreement reflects exactly what San Diego SPJ repeatedly urged the school district to do; we just wish it hadn’t required legal action.

San Diego SPJ Concerned by Panel Sponsorship at EIJ Conference

On Tuesday, the San Diego SPJ board shared its concerns about the national SPJ board’s decision to allow the Charles Koch Institute to sponsor a public records panel at this year’s Excellence in Journalism conference.

Here is the text of the letter the San Diego SPJ board sent to to SPJ’s executive director and board of directors:

Dear Ms. McKenzie and the SPJ Board of Directors,

The San Diego Pro Chapter of the Society of Professional Journalists is concerned by the decision to allow the Charles Koch Institute to sponsor a FOIA panel at the 2018 Excellence in Journalism conference next week. We’re encouraged, however, by the decision to create a task force to review policies regarding future panel sponsorships.

SPJ members across the country didn’t learn about the sponsorship until a little more than a month before the conference. On Sept. 4, our board was briefed about it and learned that IRE board president Cheryl Thompson had chosen to withdraw as panel moderator.

At this late date, we understand why SPJ national has decided to move forward with the panel and the Koch sponsorship. We hope the task force will review the following points:

  • Rules surrounding sponsorships from organizations with clear political ties
  • How and when sponsorships should be disclosed to members

The San Diego SPJ board looks forward to helping guide our organization toward operating with greater transparency, especially regarding decisions that could raise questions about journalistic integrity and professional interests.

Sincerely,

San Diego SPJ Pro Chapter Board