Public records requests delayed, unfulfilled

During the 2015-16 academic year, Southwestern College has been in violation of the California Public Records Act (CPRA) twice in response to requests by The Sun.
On another occasion, the college placed student journalists’ records requests on the “slow-track” to fulfillment, according to lawyers at the Student Press Law Center (SPLC), a Washington, D.C. First Amendment rights organization.

Every spring, during Sunshine Week, journalists across the United States are encouraged to test local public institutions for transparency and compliance with public records laws passed after the Watergate scandals of the 1970s.

On April 4, 2016, The Sun requested several public records from the college, including staff emails and travel expense reports. While the expense reports were produced in 10 days, the district asked for more time to produce the emails, citing exceptions in the law that allow for the redaction of certain information if “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”

“The District will produce all non-exempt and non-privileged documents that are responsive to your request,” read a letter signed by John Clark, former vice president for employee services, in an emailed response to the records request. “However, the scope of your request requires additional time for the District to ascertain the size of this production and to evaluate any needs to redact or withhold documents as permitted under the CPRA.”

The district’s initial response did not include a time frame under which the college would comply with its obligation under California law.

When pressed for a date that records would be made available to The Sun, another letter was sent electronically from the district, signed by Maggie Croft on behalf of the Interim Vice President for Human Resources Karl Sparks.

“Based on the scope of (the) request,” the letter stated, “the District estimates that it will have the requested documents available, on a rolling basis, starting on May 15, 2016.”

Public Information Officer Lillian Leopold said that Human Resources was in a transition period and that The Sun’s request encompassed more than 32,000 emails.
“We had to hire a consultant to review those,” she said. “We just don’t have the personnel to do that right now.”

In an email to President Melinda Nish, SPLC Executive Director Frank LoMonte said the college’s decision to delay the release of records for five weeks, if not for the purposes of stonewalling, was reflective of systemic problems in the administrative organization.

“Either the college is so disorganized in its recordkeeping that it is unable to find even the simplest documents without weeks of excavation work, which speaks to a culture of institutional incompetence and mismanagement,” said LoMonte, “or the college is purposely making (The Sun’s) request a low priority and devoting inadequate resources to its timely fulfillment.”

Because the documents will not begin to be made available until May 15, The Sun will not be able to publish news relating to them this academic year.

“(There is) no legitimate basis for making The Sun wait weeks for the fulfillment of a simple records request needed for a time-sensitive news article,” LoMonte said in his email to Nish. “Moreover, some of the exemptions cited by the college’s response letters— e.g., that the records must be inspected so as to withhold assessments of an agency’s vulnerability to terrorist attacks, a subject on which it’s doubtful that your athletic director has produced much correspondence— are so frivolous as to suggest purposeful evasion.”

Among the requested emails were some from the previous and current athletic directors, Terry Davis and his replacement Jim Spillers, who assumed the position in January.

“We’re not intentionally stonewalling,” Leopold said.

SWC released the first of eight sets of requested email records on May 13.

It was not the first time the college waited until the end of a semester to comply with a records request. Another public records request submitted Nov. 20, 2015 did not receive a reply until classes had already ended for the fall semester, 24 days later.

The Sun submitted another public records request on April 29, 2016 and did not receive the district’s response until May 13. While the 14-day delay shows improvement, it is still four days beyond what is required under the CPRA.

California state law requires public agencies to respond to records requests within 10 days and that the time frame cannot be used to delay the release of records.

“It’s the district’s intent to be transparent (and) comply with the public records act,” Leopold said. “Sometimes there are limitations in personnel or the wrong door has been entered and that kind of delays things. It doesn’t mean it’s right and it’s something we’re looking into.”

SWC Governing Board Member Humberto Peraza said transparency was key to good governance.

“Generally, it’s everything,” he said. “Openness and transparency is the most important thing. You have to do that to gain (the) trust of the community (and) constituent groups on campus. Openness and transparency has to be one of the top things in any government entity.”

The district has a history of pushing the boundaries of the CPRA and defying the law.

In 2013 SWC Police Chief Michael Cash discharged his firearm in the college police station. The bullet traveled through a wall and into an office occupied by three district employees, narrowly missing them. Although a preliminary investigation by SWC Police Department leadership found Cash negligent, an outside investigator found the weapon discharge to be accidental and Cash was reinstated after a five-week suspension.

In 2013 The Sun attempted to obtain the investigator’s report via a CPRA request and was denied. When pressed to justify their denial, the college first cited Government Code section 6254(c). When presented with case law that showed 6254(c) did not apply, district lawyers finally settled on the Peace Officers Bill of Rights (POBAR) as the justification.

LoMonte said POBAR does not apply to the Cash incident for many reasons. The Sun reported in 2013 that the college forced witnesses to the incident sign non-disclosure agreements. Two employees went on paid stress leave and were paid for months before retiring. A third was threatened with suspension or termination by college administration for talking to The Sun.

In April 2016 The Sun reported that the governing board had commissioned a poll of district homeowners in preparation for a potential $365 million bond vote in November. The last bond, Proposition R, which passed in November 2009, was derailed after a wide-ranging pay-to-play corruption scandal resulted in criminal indictments and the termination of construction contracts. Leopold said the district has come a long way from the widespread corruption of the Raj Chopra/Nicholas Alioto era.

“We hired an outside consultant to come in and review all of our contracts and procedures for bidding awards,” she said. “All (their recommendations) have been implemented on how to make us more transparent and make sure all of our contracts are awarded in an above the board manner. The district has done a very good job in addressing those issues.”

Peraza agreed.

“I think it’s significantly different than it was,” he said. “But does that mean we’re perfect and can’t do any better? No. I think with openness and transparency you’ve got to keep pushing the envelope.”